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.
Harter, Philip J. "Negotiating Regulations: A Cure for Malaise." Georgetown Law Journal 71 (1981).
"Negotiated Rulemaking Act (1990)." Major Acts of Congress. . Encyclopedia.com. (November 18, 2018). https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/negotiated-rulemaking-act-1990
"Negotiated Rulemaking Act (1990)." Major Acts of Congress. . Retrieved November 18, 2018 from Encyclopedia.com: https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/negotiated-rulemaking-act-1990
Encyclopedia.com gives you the ability to cite reference entries and articles according to common styles from the Modern Language Association (MLA), The Chicago Manual of Style, and the American Psychological Association (APA).
Within the “Cite this article” tool, pick a style to see how all available information looks when formatted according to that style. Then, copy and paste the text into your bibliography or works cited list.
Because each style has its own formatting nuances that evolve over time and not all information is available for every reference entry or article, Encyclopedia.com cannot guarantee each citation it generates. Therefore, it’s best to use Encyclopedia.com citations as a starting point before checking the style against your school or publication’s requirements and the most-recent information available at these sites:
Modern Language Association
The Chicago Manual of Style
American Psychological Association
- Most online reference entries and articles do not have page numbers. Therefore, that information is unavailable for most Encyclopedia.com content. However, the date of retrieval is often important. Refer to each style’s convention regarding the best way to format page numbers and retrieval dates.
- In addition to the MLA, Chicago, and APA styles, your school, university, publication, or institution may have its own requirements for citations. Therefore, be sure to refer to those guidelines when editing your bibliography or works cited list.