Encourage Agencies to Use Negotiated Rulemaking

Increase the use of negotiated rulemaking. (1)

The President should encourage agencies to use reg neg. This is
consistent with the new regulatory review executive order. Regulatory
agencies that have not used reg neg since enactment of the Negotiated
Rulemaking Act of 1990 should identify at least one candidate for using
reg neg during the coming year or explain why it would not be feasible
to do so.[Endnote 10] The administration should facilitate efforts to
use reg neg by identifying and removing any administrative barriers to
its use.

Reg neg should rarely, if ever, be required by statute for particular
rulemakings because its success depends on the voluntary participation
of all participants, including the agency.[Endnote 11] Moreover,
Congress should recognize that short statutory deadlines to issue
proposed or final rules, especially if they are shorter than two years,
may preclude the use of negotiated rulemaking.

Endnotes

10. In this and all other recommendations in this report, "regulatory
agencies" are those agencies that are named to the Regulatory
Coordinating Group (see REG01) and subagencies (or subdepartments) that
are designated by department or agency heads as engaging in significant
regulatory activities. Generally, this should include those subagencies
that are listed in the most recent Unified Agenda of Federal Regulations
as having over 40 regulatory issuances. The Negotiated Rulemaking Act of
1990, Pub. L. No. 101- 648 was enacted on November 29, 1990.  

11. Three statutes have mandated that the Department of Education use
reg neg for specific rulemakings and another statute required the
Nuclear Regulatory Commission (NRC) to do so. All were subject to
relatively short statutory deadlines and these deadlines constrained the
negotiation process. In addition, the NRC was required to convene a
regulatory negotiation on issues that most observers felt were
non-negotiable.