Negotiated Rulemaking Act

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 967-997

967

NEGOTIATED RULEMAKING ACT

18

967

Negotiated

Rulemaking

Act

Citations:

5 U.S.C. §§ 561–570 (2012); enacted Nov. 29, 1990, by Pub. L. No.

101-648, 104 Stat. 4969, renumbered Aug. 26, 1992, by Pub. L. No. 102-

354, 106 Stat. 944; amended by Pub. L. No. 104-320, § 11, Oct. 19, 1996,

110 Stat. 3870.

Lead Agency:

The Act originally named the Administrative Conference of the United

States (ACUS) as the lead agency for coordinating negotiated rulemaking,

but the Conference was defunded by Congress in 1995, so in 1996 Section

569 of the Act was amended to require the President to designate an agency

or interagency committee to facilitate and encourage agency use of negoti-

ated rulemaking. The President then named the Regulatory Working Group,

which had been established under Section 4(d) of Executive Order 12,866,

58 Fed. Reg. 51,735 (Sept. 30, 1993), as the lead agency. See Memorandum

on the Designation of Interagency Committees to Facilitate and Encourage

Agency Use of Alternate Means of Dispute Resolution and Negotiated

Rulemaking, May 1, 1998, 1 Pub. Papers of the Presidents 749, 1998 WL

214697. However, it is not clear that the Regulatory Working Group has

taken on any responsibilities in this area, despite its retention on paper and

specific amendment in Executive Order 13,258, 67 Fed. Reg. 9385 (2002).

The reestablishment of ACUS in 2010 has thus far not resulted in its

redesignation as the agency responsible for facilitating and encouraging the

use of negotiated rulemaking. Thus, there does not appear to be any real lead

agency for this Act. For more information on ACUS, see www.acus.gov.

968 NEGOTIATED RULEMAKING ACT

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Overview:

The Negotiated Rulemaking Act of 1990 establishes a statutory frame-

work for agencies to formulate proposed regulations by using negotiated

rulemaking. The Act supplements the rulemaking provisions of the Adminis-

trative Procedure Act by clarifying the authority of federal agencies to con-

duct negotiated rulemaking. It largely codifies the practice of those agencies

that had previously used the procedure. While not requiring use of the tech-

nique, the Act provides each agency discretion with regard to using negoti-

ated rulemaking.

Negotiated rulemaking (sometimes known as “regulatory negotiation” or

“reg-neg”) emerged in the 1980s as an alternative to traditional procedures

for drafting proposed regulations. The essence of the idea was that in certain

situations it is possible to bring together representatives of an agency and the

various affected interest groups to negotiate the text of a proposed rule. The

negotiators would try to reach consensus through a process of evaluating

their own priorities and making tradeoffs to achieve an acceptable outcome

on the issues of greatest importance to them. If they do achieve consensus,

then the resulting rule is likely to be easier to implement, and the likelihood

of subsequent litigation is diminished. Even absent 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.

Negotiated rulemaking should be viewed as a supplement to the rulemaking

provisions of the Administrative Procedure Act. This means that the negotia-

tion sessions generally take place prior to issuance of the notice and the op-

portunity for the public to comment on a proposed rule that are required by

the APA (5 U.S.C. § 553). In some instances, negotiations may be appropri-

ate at a later stage of the proceeding and have sometimes been used effec-

tively in drafting the text of a final rule based on comments received.

In 1982 ACUS set forth criteria for identifying rulemaking situations for

which reg-neg is likely to be successful (Recommendation 82-4, 47 Fed.

Reg. 30,708 (July 15, 1982)). These criteria were intended to guide agencies

in determining whether negotiated rulemaking would be appropriate for ad-

dressing particular regulatory problems. ACUS also suggested specific proce-

dures for agencies to follow in applying this approach. Additional refinements,

based on a study of initial agency experiences with reg-neg, were recom-

mended in 1985 (Recommendation 85-5, 50 Fed. Reg. 52,895 (Dec. 27,

1985)).

Much of the Negotiated Rulemaking Act is permissive, incorporating

many of the criteria and procedures suggested in the Conference recommen-