Negotiated rulemaking (sometimes referred to as regulatory negotiation or "reg-neg") is a supplement to the traditional APA rulemaking process in which agency representatives and representatives of affected parties work together to develop what can ultimately become the text of a proposed rule. Some questions have been raised, however, regarding whether the approach actually speeds rulemaking or reduces litigation. For example, ACUS said agencies should use "conveners" to determine whether negotiated rulemaking is appropriate and to identify affected interests. Congressional Action

The Negotiated Rulemaking Act of 1990 (5 U.S.C. 2870, 3873), essentially enacted the ACUS recommendations, establishing basic statutory authority and requirements for the use of the approach while giving agencies wide latitude in its implementation. In making that determination, the act says the head of the agency must consider whether (1) a rule is needed, (2) there are a limited number of identifiable interests that will be significantly affected by the rule, (3) there is a "reasonable likelihood" that a balanced committee can be convened that will adequately represent those identifiable interests and is willing to negotiate in good faith to reach consensus on a proposed rule, (4) there is a "reasonable likelihood" that the committee will reach a consensus on the proposed rule within a fixed period of time, (5) the negotiated rulemaking process will not delay the issuance of the proposed or final rule, (6) the agency has adequate resources that it is willing to commit to the committee, and (7) the agency will use the committee's consensus as the basis of the proposed rule "to the maximum extent possible consistent with the legal obligations of the agency." Congressional Mandates to Negotiate

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. Substantial disagreements exist regarding how the effectiveness of negotiated rulemaking should be measured (e.g., timeliness and the amount of litigation). Most researchers agree, however, that the approach is not appropriate for all rules, and that more research is needed to determine its effects on rules, the rulemaking process, and participants in that process.
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 [author name scrubbed].