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.

Negotiated rulemaking, sometimes abbreviated as "reg neg," emerged most prominently in the early 1980s because of a concern that traditional rulemaking procedures had become too adversarial. John Dunlop, Secretary of Labor under President Gerald Ford, first introduced the idea of formally engaging affected interests in negotiations over federal regulations in the 1970s. In 1982 Phillip Harter, an administrative law expert, developed the idea of reg neg further in a report to the Administrative Conference of the United States and then a law review article, proposing negotiation as a means of allieviating the "malaise" that hindered the existing federal rulemaking process. The U.S. Environmental Protection Agency and the United States Department of Transportation 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." The Reg Neg Act was reauthorized in 1996 and is now incorporated into the Administrative Procedure Act, at 5 U.S.C. §§ 561-570.
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.

Although only a small fraction of all regulations have been developed through negotiated rulemaking, a variety of federal government agencies have used the procedure, 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.

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