Negotiated rulemaking
| What is rulemaking in the context of the administrative state? Rulemaking is a process by which administrative agencies amend, repeal, or create an administrative regulation. The most common rulemaking process is informal rulemaking, which solicits written public feedback on proposed rules during a comment period. When required by statute, certain agencies must follow the formal rulemaking process, which incorporates a trial-like hearing in place of the informal comment period, or hybrid rulemaking, which blends specified elements of formal rulemaking into the informal rulemaking process. Learn about rulemaking here. |
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Negotiated rulemaking, in the context of administrative law, is a supplementary rulemaking process that allows federal agencies and stakeholders to build consensus on a proposed rule prior to beginning the informal rulemaking process. Negotiated rulemaking, also known as regulatory negotiation or reg-neg, is generally used at the discretion of the agency with the goal of improving communication between agencies and affected parties, avoiding litigation, and increasing efficiency in the rulemaking process.[1][2]
Negotiated rulemaking: Background and origin
- See also: Rulemaking, informal rulemaking, and formal rulemaking
Negotiated rulemaking aims to bring together agency officials and affected parties in an effort to reach an accord on a proposed rule prior to initiating the informal rulemaking process. During negotiated rulemaking, an advisory committee made up of stakeholders, at least one agency official, and one or more neutral mediators, known as "convenors," meet to negotiate a consensus on a proposed rule. Advisory committees are generally made up of no more than 25 members.[1][3]
Congress passed the Negotiated Rulemaking Act in 1990 to officially endorse the use of negotiated rulemaking, which administrative agencies had started to employ in the 1980s. According to the Administrative Conference of the United States (ACUS), Congress formally approved the use of negotiated rulemaking in an effort to improve communication between agencies and stakeholders, avoid litigation, and increase efficiency:[1][2]
| “ | Congress had found that traditional informal rulemaking 'may discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions and to engage in expensive and time-consuming litigation.' Congress found that negotiated rulemaking could 'increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement or challenge such rules in court' and that negotiation could 'shorten the amount of time needed to issue final rules.'[1][4] | ” |
Implementation
Negotiated rulemaking is generally implemented at the discretion of the agency to assist in the development of a complex rule. Congress has occasionally required the use of negotiated rulemaking through statute. According to the ACUS, the Negotiated Rulemaking Act recommends that agencies consider using negotiated rulemaking in the following situations:[1][5]
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Negotiated rulemaking: Process
When an agency decides to employ negotiated rulemaking, the agency must first publish a notice of negotiated rulemaking in the Federal Register. The notice must include information about the purpose of the negotiated rulemaking committee and a list of proposed members. After publishing the notice, the agency must allow for public feedback on the proposed committee and membership before moving forward.[3]
According to the U.S. Department of Agriculture, negotiated rulemaking generally proceeds according to the following five steps:[2]
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1. The agency evaluates the suitability of reg-neg and gives its go-ahead or a particular statute requires the agency to utilize the reg-neg process. |
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At the conclusion of negotiated rulemaking, the agency either reaches a consensus with stakeholders or the two groups fail to agree. If the agency and affected parties reach a consensus, the committee issues a report that outlines the negotiated proposed rule. If the agency and stakeholders disagree, the committee may issue a report that describes any areas in which the groups were able to find common ground. If the parties fail to reach a consensus and the agency still chooses to move forward with drafting a proposed rule, the agency may incorporate any areas of consensus or information gathered through negotiated rulemaking. Once a proposed rule is developed, the agency must proceed through the informal rulemaking process[2][3]
Negotiated rulemaking: Example
The Online Learning Consortium, a 501(c)(3) higher education organization, provided the following account of a 2014 negotiated rulemaking by the U.S. Department of Education:[6]
| “ | [I]n May 2012 the U.S. Department of Education announced the intent to form a negotiated rulemaking committee to consider proposed regulations that would help prevent fraud and ensure appropriate use of Title IV Federal Student Aid program funds, especially within the 'context of current technologies'. More specifically, the proposed regulations were to address the use of debit cards to distribute such funds. Later, in April 2013, several topics were added for consideration of the negotiated rulemaking committee, including items related to state authorization for programs offered through distance education.
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Though the committee did not arrive at a consensus, the U.S. Department of Education issued the proposed rule on August 8, 2014. In the text of the proposed rule, the department invited "all parties who participated or were represented in the negotiated rulemaking, in addition to all members of the public, [to] comment freely on the proposed regulations." The department issued the final rule on October 23, 2014.[7][8]
Negotiated rulemaking in practice
The Congressional Research Service identified a series of advantages and drawbacks to the negotiated rulemaking process in a 2006 report.[9]
The report described the following advantages of negotiated rulemaking:[9]
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The report described the following drawbacks to negotatied rulemaking:[9]
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See also
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 Administrative Conference of the United States, "Negotiated Rulemaking and Other Options for Public Engagement," June 16, 2017
- ↑ 2.0 2.1 2.2 2.3 2.4 U.S. Department of Agriculture, "What is Negotiated Rulemaking?" accessed August 24, 2017
- ↑ 3.0 3.1 3.2 Congressional Research Service, "A Brief Overview of Rulemaking and Judicial Review," accessed August 24, 2017
- ↑ 4.0 4.1 4.2 4.3 4.4 4.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Federal Motor Carrier Safety Administration, "Frequently Asked Questions: Negotiated Rulemaking," accessed August 24, 2017
- ↑ 6.0 6.1 Online Learning Consortium, "What is Negotiated Rulemaking and How Does It Work Anyway?" June 7, 2014
- ↑ U.S. Department of Education, "Negotiated Rulemaking 2013-2014 Program Integrity and Improvement," accessed September 19, 2019
- ↑ Federal Register, "Proposed Rule—William D. Ford Federal Direct Loan Program," August 8, 2014
- ↑ 9.0 9.1 9.2 9.3 9.4 Congressional Research Service, "Negotiated Rulemaking," August 28, 2006
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