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Negotiated Rulemaking Act (1990)

Negotiated Rulemaking Act (1990)

Philip J. Harter

When passing a new law, Congress generally sets the basic policy but then directs the agency charged with implementing the law to issue rules that provide the detail of what must be done. The traditional process is for the agency to study the subject and draft a proposed rule that it publishes in the Federal Register, a daily newspaper that contains notices of the activities of the federal government. This is called a "Notice of Proposed Rulemaking." Anyone who is interested can submit comments, which the agency will take into account. The agency then makes the appropriate revisions and publishes the final rule.

For most rules, this process works fairly well. But since so much can be at stake, sometimes the process becomes adversarial and contentious. At other times an agency may lack the expertise necessary to write the rule. In still other instances, an agency may consider it important for those groups who will be directly affected by a rule to participate in the development of the policies that the rule will implement. One way to meet these needs is to assemble representatives of those groups who will be significantly affected by a proposed rule to consider the relevant issues, develop the required facts, and come to an agreement on a proposed rule. This process, called "negotiated rulemaking," is commonly referred to as regulatory negotiation or "reg-neg."

Congress enacted the Negotiated Rulemaking Act in 1990 (P. L. 101-648, 104 Stat. 4,969, amended 1996, P. L. 104-320, 110 Stat. 3,870) to encourage agencies to use this process and to provide the explicit blessing of Congress for its use. Under the act, a person called a "convener" identifies (1) the interests that will be significantly affected by the proposed rule; (2) the issues that must be resolved by the agency in the new proposed rule; and (3) people who are willing and able to represent the affected interests.

If the agency agrees with the convener's assessment and recommendations, it appoints its own representative and publishes a notice in the Federal Register as well as other, more widely read publications inviting anyone who feels significantly affected but not represented to come forward to participate on the committee. The Notice of Intent, as it is called, ensures that no interest will be left out. Thus, the process is highly democratic, with the representatives being chosen by interest instead of by arbitrary geographical areas. The committee then meets in open meetings and develops an agreement on a proposed rule, which the agency, after review and any necessary modifications, publishes as a Notice of Proposed Rule-making.

Most of the empirical research shows that reg-neg saves time and significantly improves the substance of the rules. Although some contend that the process is not democratic because some individuals may be left out, others point out that reg-neg is far more inclusive than traditional rule making and that anyone who is interested can still comment on the Notice of Proposed Rulemaking. Overall, negotiated rulemaking has been highly successful in writing some enormously complex and controversial rules.

See also: Administrative Dispute Resolution Act; Administrative Procedure Act.

BIBLIOGRAPHY

Harter, Philip J. "Negotiating Regulations: A Cure for Malaise." Georgetown Law Journal 71 (1981).

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