Negotiated Rulemaking

Summary

Negotiated rulemaking, which is a supplement to traditional rulemaking, is a process in which representatives of federal agencies and affected parties work together in a committee to reach consensus on what can ultimately become a proposed rule. Although negotiated rulemaking is not appropriate for all regulations, advocates believe that the approach can speed rule development, reduce litigation, and generate more creative and effective regulatory solutions.

The Negotiated Rulemaking Act of 1990 established the basic statutory authority for the approach while giving agencies wide latitude in its implementation, and the Clinton Administration advocated a broader application of the approach. Agencies are permitted to use “conveners” to determine whether negotiated rulemaking is appropriate and to select participants, and to use “facilitators” to chair the negotiated rulemaking committee meetings. At the end of the process, agencies must still publish proposed and final regulations for public comment, but any proposal agreed to by the negotiating committee is not binding on the agency or other parties.

Although the Negotiated Rulemaking Act gives agencies substantial discretion as to whether the approach should be employed in rulemaking, Congress has sometimes mandated its use by rulemaking agencies and established specific procedures and time frames to follow. Studies examining the implementation of negotiated rulemaking have reached different conclusions regarding the approach’s effect on rulemaking timeliness, litigation, as well as other issues. Researchers also disagree regarding how the effectiveness of negotiated rulemaking should be measured.

This report will be updated if significant developments occur (e.g., congressional action or research findings) that could affect the use of negotiated rulemaking. For information on the traditional rulemaking process, see CRS Report RL32240, The Federal Rulemaking Process: An Overview, by Curtis W. Copeland.