Negotiated rulemaking

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Negotiated rulemaking is a process in American administrative law in which an advisory committee made up of disparate interest groups negotiates the terms of an administrative rule and proposes it to an agency. The agency publishes the rule in the Federal Register as a proposed rule and uses the normal procedure of soliciting and evaluating public comments in order to decide whether to modify or adopt it.

Contents 1 Origins 2 Procedure 3 Successes and critiques 4 References

[edit] Origins

Negotiated rulemaking, sometimes abbreviated "reg neg," began in the early 1980s because of a concern that traditional rulemaking procedures had become too adversarial. The Environmental Protection Agency and the Department of the Treasury were the first agencies to experiment with negotiated rulemaking. Other agencies were more reluctant to try it out of concern about its legality. Those questions were answered when the United States Congress enacted the Negotiated Rulemaking Act of 1990 "to encourage agencies to use [negotiated rulemaking] when it enhances the informal rulemaking process." 5 U.S.C. § 561. The Act was reauthorized in 1996 and is now incorporated into the Administrative Procedure Act, at 5 U.S.C. §§ 561-570.

[edit] Procedure

The Negotiated Rulemaking Act does not require agencies to use negotiated rulemaking; an agency's decision whether or not to use negotiated rulemaking is entirely within the agency's discretion and not subject to review by the courts. Even after an agency decides to call an advisory committee, it is free to ignore the committee's recommendation. Negotiated rulemaking is therefore best understood as a voluntary adjunct to the normal rulemaking process.

[edit] Successes and critiques

The negotiated rulemaking process has been controversial. Proponents argue that it can increase the efficiency of rulemaking because rules adopted through compromise and consensus will be less likely to be challenged in court. Critics assert that it leads the agency to abandon its role as the guardian of the public interest.

[edit] References

1. Gellhorn, Ernest & Leven, Ronald M., Administrative Law and Process in a Nutshell, West Publishing, 4th Ed., 1997.
2. Fox, William F. Jr., Understanding Administrative Law, LexisNexis, 4th Ed., 2000.
3. Funk, William F. & Seamon, Richard H., Administrative Law: Examples & Explanations, Aspen Publishers, 2001.
4. Harter, Philip J., Assessing The Assessors: The Actual Performance Of Negotiated Rulemaking, 9 N.Y.U. Envtl. L.J. 32 (2000).