Document Type

Article

Publication Date

January 2008

Abstract

Introduction: As the ADR movement made its way from the courts to the agency hearing rooms in the 1980s, negotiated rulemaking (sometimes called "regulatory negotiation" or simply "reg-neg") also emerged on a parallel track as an alternative to traditional procedures for drafting proposed regulations. This exemplar of regulatory reform was based on two insights: (1) that the usual process of written notice-and-comment rulemaking has an intrinsic weakness because stakeholders engaged in it do not interact with each other or with the agency; and (2) in certain situations, it is possible to bring together representatives of the agency and the various affected interest groups to negotiate the text of a proposed rule. If the negotiators are able to achieve consensus on a draft rule, the resulting final rule is likely to be issued more quickly, easier to implement, and less likely to be subsequently challenged in court. Moreover, even in the absence of consensus on a draft rule, the process may be valuable as a means of better informing the regulatory agency of the issues and the concerns of the affected interests. For these reasons, negotiated rulemaking was seen as an appropriate application of ADR principles to the quasi-legislative rulemaking process.

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