Negotiated Rulemaking in the United States

Rulemaking

Congress transfers legislative authority to agencies under the delegation doctrine, which can be a broad or specific grant of power. Rulemaking is one of the main mechanisms through which agencies act. Administrative rules, also referred to interchangeably as regulations, are adopted by agencies and are considered primary legal authority.

The process of rulemaking is governed by the Administrative Procedure Act. Generally, the APA requires a process that includes publication of the proposed rules, a period for comments and participation in the decisionmaking, and adoption and publication of the final rule. See 5 U.S.C. § 553. This is known as “notice and comment” or “informal” rulemaking (i.e., informal in comparison with the more complex process required for laws made by Congress).

Negotiated Rulemaking in Environmental Law

A relatively new procedure used by the Environmental Protection Agency (EPA) and other agencies to create regulations. If the agency believes a proposed regulation would be improved by the participation of interested parties, the EPA may announce its intention to begin a negotiated rulemaking. To be effective, participants must represent the broadest possible spectrum of interested parties, including industries that will be affected, public interest groups, and governmental officials. The number of individuals involved is limited to 25 except in rare circumstances, but the designated representatives are supposed to solicit comments from their peers so that they actually reflect the views of the segment they represent. The committee establishes its own ground rules, which may cover everything from the scope of the negotiation to its termination and what will be required for a consensus. A facilitator, who may or may not be a member of the EPA, will chair the meetings and give advice.

The purpose of the negotiated rulemaking is to resolve as many issues as possible before a regulation is proposed and speed up the process of promulgation. Members of the committee enter into an agreement concerning the consensus. Many times the agreement specifies what the EPA’s proposed regulation will be and in return, members agree not to submit adverse comments. Committee members usually agree that they will not sue the agency on the final rule if it is the result of the negotiations. However, the agreement by the committee members does not affect the rights of anyone who was not a member.

Negotiated rules can benefit all interested parties. The process requires people with different perspectives to listen to each other and try to fashion a solution. Often creativity is stimulated by open debate, and the resulting rules are made by consensus. However, the negotiation may also fail because the members may not be able to reach a consensus on important issues. If that is the case, the committee may terminate the effort, or it may narrow the issues to those on which agreement can be reached.
Based on “Environment and the Law. A Dictionary”.

Negotiated Rulemaking (Agency Rulemaking)

This section introduces, discusses and describes the basics of negotiated rulemaking. Then, cross references and a brief overview about Agency Rulemaking is provided. Finally, the subject of Administrative Law in relation with negotiated rulemaking is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Resources

Bibliography

• Cornelius M. Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy (4th ed.)
• Jeffrey F. Lubbers, A Guide to Federal Agency Rulemaking (4th ed.)