Negotiated rulemaking

Negotiated rulemaking is a process in American administrative law, used by federal agencies, in which representatives from a government agency and affected interest groups negotiate the terms of a proposed administrative rule. The agency publishes the proposed rule in the Federal Register and then follows the usual rulemaking procedure of soliciting public comments, which are evaluated for inclusion in the final rule.

Origins

Negotiated rulemaking, sometimes abbreviated as "reg neg," began in the early 1980s because of a concern that traditional rulemaking procedures had become too adversarial. Phillip Harter, an administrative law expert, developed reg neg to allieviate the “malaise” that hindered the existing federal rulemaking process.^[1] The U.S. Environmental Protection Agency and the U.S. 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 (Reg Neg Act), "to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process."^[2] The Reg Neg Act was reauthorized in 1996 and is now incorporated into the Administrative Procedure Act, at 5 U.S.C. §§ 561-570.^[3]
A believer in the effectiveness of reg neg, President Clinton encouraged agencies to use the approach in Executive Order #12866 and in a subsequent Presidential Memorandum.^[4]
A variety of federal government agencies have successfully used reg neg, including the U.S. Departments of Education, Housing and Urban Development, Health and Human Services, the Interior, Labor, and Transportation, and the U.S. Environmental Protection Agency. Negotiated rulemaking is currently required under the Higher Education Act and the Native American Housing Assistance and Self-Determination Act.

Procedure

Usually, an agency is not mandated to use negotiated rulemaking, but does so by choice. Its decision to use negotiated rulemaking is not subject to review by the courts.^[5] An agency can publish a proposal adopted by its negotiating committee, but the Negotiated Rulemaking Act does not require it.^[6]
The decision to use negotiated rulemaking is based on a number of factors, including whether it is likely that a balanced committee can be formed and whether it is reasonable to believe that the committee will reach a consensus recommendation for a proposed rule. The agency’s resources are also considered.^[7]
The use of a convener to determine the feasibility of undertaking a negotiated rulemaking is authorized under the Negotiated Rulemaking Act. A convener may also recommend a list of stakeholder representatives for participation on the reg neg advisory committee. Sometimes, the agency compiles its own list. Regardless, the proposed advisory committee members and the issues to be negotiated are published in the Federal Register and subject to public comment. People who feel they are under-represented on the committee can request membership.
Reg Negs are facilitated by a public policy mediator. Once established under the Federal Advisory Committee Act, the committee prepares a set of ground rules, which include the committee’s deadline, mission, responsibilities, commitments, and a decision rule or definition of consensus. A final list of the issues to be negotiated is also created, and negotiators are provided with relevant background materials. With the public policy mediator providing focus and managing the negotiations, the committee discusses each issue striving for agreements in concept, which government staff draft as regulatory text. This draft text is reviewed and revised until a tentative consensus agreement is reached. If an early consensus cannot be reached, the drafting team outlines multiple options discussed. When tentative agreements are reached on all issues, the agreements are checked for consistency before final consensus is achieved.^[8] Negotiated rulemaking typically takes six months to a year and involves multi-day meetings approximately once a month.

Successes and critiques

Public policy mediator Susan Podziba notes that negotiated rulemaking allows the benefits of face-to-face interaction and cooperation. It also allows all parties to share information and take advantage of the different skill sets of committee members.^[9] Research conducted by Dr. Laura Langbein of the School of Public Affairs at American University indicates that rules developed through reg neg were of better quality, more accurate and timelier than rules created using the traditional process.^[10]
One long-time critic of reg neg is Cary Coglianese of the University of Pennsylvania Law School. Coglianese asserts that negotiated rulemaking consumes more agency resources than notice-and-comment rule making. He noted that of the 12 EPA rules developed using reg neg by 1997, six resulted in court challenges.^[11] Harter found fundamental flaws with Coglianese’s research, notably that he “misapplies his own methodology, incorrectly measures the duration of several negotiations, and fails to differentiate among different types of judicial challenges to negotiated rules.”^[12]
Another criticism of negotiated rulemaking is that it subverts the public interest because special interest groups have too much sway.^[13] Professor Jody Freeman of Harvard Law School argues against this idea and asserts that the phrase “public interest” is far too vague to act as a variable in the assessment of negotiated rulemaking.^[14]
In 2006, the U.S. Department of the Interior and the U.S. Environmental Protection Agency Public co-sponsored a workshop to reflect on lessons learned during past negotiated rulemakings conducted throughout the federal government. According to background materials prepared for the workshop, more than 30 federal negotiated rulemakings occurred between 1996 and 2005, including the No Child Left Behind Act, Off-Road Vehicle Regulations at Cape Cod National Seashore, and Worker Safety Standards for the Use of Cranes and Derricks in Construction.^[15]

References

1. ^ Harter, Philip J., Negotiating Regulations: A Cure for Malaise, Georgetown Law Journal, vol. 71, 1982.
2. ^ "5 U.S.C. § 561". http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+5USC561. Retrieved 2008-06-05.
3. ^ "5 U.S.C. §§ 561-570". http://www.access.gpo.gov/uscode/title5/parti_chapter5_subchapteriii_.html. Retrieved 2008-06-05.
4. ^ Lubbers, Jeffery, A Guide to Federal Agency Rulemaking (3d ed., ABA Book Publg. 1998), pg. 175.
5. ^ "5 U.S.C. §570". Retrieved 2008-06-05.
6. ^ Op. Cit., Lubbers.
7. ^ Copeland, Curtis W., Negotiated Rulemaking: Report RL32452, Congressional Research Service, September 18, 2006. http://wikileaks.org/wiki/CRS-RL32452.
8. ^ Podziba, Susan. Occupational Safety & Health Reporter, Vol. 35, No. 39, 10/06/2005, pp. 891-893. 2005, http://www.podziba.com/supporting%20docs/Publications_BNA%20Article.pdf.
9. ^ Ibid.
10. ^ U.S. Department of the Interior & U.S. Environmental Protection Agency, Moving Beyond Notice and Comment: Reflections on Negotiated Rulemaking, 2006, http://mits.doi.gov/CADR/Material02132006/Done_for_Web/2004_05_14/2006_05_03_RegNeg_Summary.htm.
11. ^ Coglianese, Cary, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking. 46 Duke Law Journal 6, 1997, http://ssrn.com/abstract=10430.
12. ^ Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL. L.J. 32, 2000, http://www1.law.nyu.edu/journals/envtllaw/issues/vol9/1/v9n1a2.pdf.
13. ^ William Funk, “Bargaining Toward the New Millennium: Regulatory Negotiation and the Subversion of the Public Interest,” Duke Law Journal 46, 1997, pp. 1351-1388.
14. ^ Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. 2000.
15. ^ Op. Cit., U.S. Department of the Interior & U.S. Environmental Protection Agency.

• Gellhorn, Ernest & Leven, Ronald M., Administrative Law and Process in a Nutshell, West Publishing, 4th Ed., 1997.
• Fox, William F. Jr., Understanding Administrative Law, LexisNexis, 4th Ed., 2000.
• Funk, William F. & Seamon, Richard H., Administrative Law: Examples & Explanations, Aspen Publishers, 2001.