Negotiated Rulemaking Act of 1990
PL 101-648 (S.303), enacted 11/29/1990

PUBLIC LAW 101-648—NOV. 29, 1990 
104 STAT. 4969 
Public Law 101-648 
101st Congress 
An Act 
To establish a framework for the conduct of negotiated rulemaking by Federal 
Nov. 29, 1990 
agencies. 
[S. 303] 
Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 
Negotiated 
Rulemakmg Act 
SECTION 1. SHORT TITLE. 
9f.l??P. 
This Act may be cited as the "Negotiated Rulemaking Act of 
1990". 
5 u s e 581 note. 
SEC. 2. FINDINGS. 
5 USC 581 note. 
The Congress makes the following findings: 
(1) Government regulation has increased substantially since 
the enactment of the Administrative Procedure Act. 
(2) Agencies currently use rulemaking procedures that may 
discourage the affected parties from meeting and communicat-
ing with each other, and may cause parties with different 
interests to assume conflicting and antagonistic positions and to 
> engage in expensive and time-consuming litigation over agency 
rules. 
(3) Adversarial rulemaking deprives the affected parties and 
the public of the benefits of face-to-face negotiations and co-
operation in developing and reaching agreement on a rule. It 
also deprives them of the benefits of shared information, knowl-
edge, expertise, and technical abilities possessed by the affected 
parties. 
(4) Negotiated rulemaking, in which the parties who will be 
significantly affected by a rule participate in the development of 
the rule, can provide significant advantages over adversarial 
rulemaking. 
(5) Negotiated rulemaking can increase the acceptability and 
improve the substance of rules, making it less likely that the 
affected parties will resist enforcement or challenge such rules 
in court. It may also shorten the amount of time needed to issue 
final rules. 
(6) Agencies have the authority to establish negotiated rule-
making committees under the laws establishing such agencies 
and their activities and under the Federal Advisory Committee 
Act (5 U.S.C. App.). Several agencies have successfully used 
negotiated rulemaking. The process has not been widely used by 
other agencies, however, in part because such agencies are 
unfamiliar with the process or uncertain as to the authority for 
such rulemaking. 
SEC. 3. NEGOTIATED RULEMAKING PROCEDURE. 
(a) IN GENERAL.—Chapter 5 of title 5, United States Code, is 
amended by adding at the end the following new subchapter: 
104 STAT. 4970 
PUBLIC LAW 101-648—NOV. 29, 1990 
"SUBCHAPTER IV—NEGOTIATED RULEMAKING 
PROCEDURE 
"§ 581. Purpose 
"The purpose of this subchapter is to establish a framework for 
the conduct of negotiated rulemaking, consistent with section 553 of 
this title, to encourage agencies to use the process when it enhances 
the informal rulemaking process. Nothing in this subchapter should 
be construed as an attempt to limit innovation and experimentation 
with the negotiated rulemaking process or with other innovative 
rulemaking procedures otherwise authorized by law. 
"§ 582. Derinitions 
"For the purposes of this subchapter, the term— 
"(1) 'agency' has the same meaning as in section 551(1) of this 
title; 
"(2) 'consensus' means unanimous concurrence among the 
interests represented on a negotiated rulemaking committee 
established under this subchapter, unless such committee— 
"(A) agrees to define such term to mean a general but not 
unanimous concurrence; or 
"(B) agrees upon another specified definition; 
"(3) 'convener' means a person who impartially assists an 
agency in determining whether establishment of a negotiated 
rulemaking committee is feasible and appropriate in a particu-
lar rulemaking; 
"(4) 'facilitator' means a person who impartially aids in the 
discussions and negotiations among the members of a nego-
tiated rulemaking committee to develop a proposed rule; 
"(5) 'interest' means, with respect to an issue or matter, 
multiple parties which have a similar point of view or which are 
likely to be affected in a similar manner; 
"(6) 'negotiated rulemaking' means rulemaking through the 
use of a negotiated rulemaking committee; 
"(7) 'negotiated rulemaking committee' or 'committee' means 
an advisory committee established by an agency in accordance 
with this subchapter and the Federal Advisory Committee Act 
to consider and discuss issues for the purpose of reaching a 
consensus in the development of a proposed rule; 
"(8) 'party' has the same meaning as in section 551(3) of this 
title; 
"(9) 'person' has the same meaning £is in section 551(2) of this 
title; 
"(10) 'rule' has the same meaning as in section 551(4) of this 
title; and 
"(11) 'rulemaking' means 'rule making' as that term is de-
fined in section 551(5) of this title. 
"§ 583. Determination of need for negotiated rulemaking com-
mittee 
"(a) DETERMINATION OF NEED BY THE AGENCY.—An agency may 
establish a negotiated rulemaking committee to negotiate and de-
velop a proposed rule, if the head of the agency determines that the 
use of the negotiated rulemaking procedure is in the public interest. 
In making such a determination, the head of the agency shall 
consider whether— 
PUBLIC LAW 101-648—NOV. 29, 1990 
104 STAT. 4971 
"(1) there is a need for a rule; 
"(2) there are a limited number of identifiable interests that 
will be significantly afiected by the rule; 
"(3) there is a reasonable likelihood that a committee can be 
convened with a balanced representation of persons who— 
"(A) can adequately represent the interests identified 
- under paragraph (2); and 
"(B) are willing to negotiate in good faith to reach a 
consensus on the proposed rule; 
"(4) there is a reasonable likelihood that a committee will 
reach a consensus on the proposed rule within a fixed period of 
time; 
"(5) the negotiated rulemaking procedure will not unreason-
ably delay the notice of proposed rulemaking and the issuance 
of the final rule; 
"(6) the agency has adequate resources and is willing to 
commit such resources, including technical assistance, to the 
committee; and 
"(7) the agency, to the maximum extent possible consistent 
with the legal obligations of the agency, will use the consensus 
of the committee with respect to the proposed rule as the basis ^ 
for the rule proposed by the agency for notice and comment. 
"(b) USE OF CONVENERS.— 
"(1) PURPOSES OF CONVENERS.—An agency may use the serv-
ices of a convener to assist the agency in— 
"(A) identifying persons who will be significantly affected "^ 
by a proposed rule, including residents of rural areas; and 
~-
"(B) conducting discussions with such persons to identify 
the issues of concern to such persons, and to ascertain 
whether the establishment of a negotiated rulemaking 
committee is feasible and appropriate in the particular 
rulemaking, 
"(2) DUTIES OF CONVENERS.—The convener shall report find- Reports, 
ings and may make recommendations to the agency. Upon 
request of the agency, the convener shall ascertain the names of 
persons who are willing and qualified to represent interests that 
will be significantly affected by the proposed rule, including 
residents of rural areas. The report and any recommendations 
of the convener shall be made available to the public upon 
request. 
"§ 584. Publication of notice; applications for membership on 
committees 
"(a) PUBLICATION OF NOTICE.—If, after considering the report of a Federal 
convener or conducting its own assessment, an agency decides to Register, 
establish a negotiated rulemaking committee, the agency shall pub-
lish in the Federal Register and, as appropriate, in trade or other 
specialized publications, a notice which shall include— 
"(1) an announcement that the agency intends to establish a 
negotiated rulemaking committee to negotiate and develop a 
proposed rule; 
"(2) a description of the subject and scope of the rule to be 
developed, and the issues to be considered; 
"(3) a list of the interests which are likely to be significantly 
affected by the rule; 
"(4) a list of the persons proposed to represent such interests 
and the person or persons proposed to represent the agency; 
publication. 
104 STAT. 4972 
PUBLIC LAW 101-648—NOV. 29, 1990 
"(5) a proposed agenda and schedule for completing the work 
of the committee, including a target date for publication by the 
agency of a proposed rule for notice and comment; 
"(6) a description of administrative support for the committee 
to be provided by the agency, including technical assistance; 
"(1) a solicitation for comments on the proposal to establish 
the committee, and the proposed membership of the negotiated 
rulemaking committee; and 
"(8) an explanation of how a person may apply or nominate 
another person for membership on the committee, as provided 
under subsection (b). 
"(b) APPLICATIONS FOR MEMBERSHIP OR COMMITTEE.—Persons who 
will be significantly affected by a proposed rule and who believe that 
their interests will not be adequately represented by any person 
specified in a notice under subsection (a)(4) may apply for, or 
nominate another person for, membership on the negotiated rule-
making committee to represent such interests with respect to the 
proposed rule. Each application or nomination shall include— 
"(1) the name of the applicant or nominee and a description of 
the interests such person shall represent; 
"(2) evidence that the applicant or nominee is authorized to 
represent parties related to the interests the person proposes to 
represent; 
"(3) a written commitment that the applicant or nominee 
shall actively participate in good faith in the development of the 
rule under consideration; and 
"(4) the reasons that the persons specified in the notice under 
subsection (a)(4) do not adequately represent the interests of the 
person submitting the application or nomination. 
"(c) PERIOD FOR SUBMISSION OF COMMENTS AND APPLICATIONS,— 
The agency shall provide for a period of at least 30 calendar days for 
the submission of comments and applications under this section. 
"§ 585. Establishment of committee 
"(a) ESTABLISHMENT.— 
V 
"(1) DETERMINATION TO ESTABLISH COMMITTEE.—If after consid-
ering comments and applications submitted under section 584, 
the agency determines that a negotiated rulemaking committee 
can adequately represent the interests that will be significantly 
affected by a proposed rule and that it is feasible and appro-
priate in the particular rulemaking, the agency may establish a 
negotiated rulemaking committee. In establishing and admin-
istering such a committee, the agency shall comply with the 
Federal Advisory Committee Act with respect to such commit-
tee, except as otherwise provided in this subchapter. 
Federal 
"(2) DETERMINATION NOT TO ESTABLISH COMMITTEE.—If after 
m?hif(^«nn 
considering such comments and applications, the agency decides 
not to establish a negotiated rulemaking committee, the agency 
shall promptly publish notice of such decision and the reasons 
therefor in the Federal Register and, as appropriate, in trade or 
other specialized publications, a copy of which shall be sent to 
any person who applied for, or nominated another person for 
membership on the negotiating rulemaking committee to rep-
resent such interests with respect to the proposed rule. 
"(b) MEMBERSHIP.—The agency shall limit membership on a nego-
tiated rulemaking committee to 25 members, unless the agency head 
publication. 
PUBLIC LAW 101-648—NOV. 29, 1990 
104 STAT. 4973 
determines that a greater number of members is necessary for the 
functioning of the committee or to achieve balanced membership. 
Each committee shall include at least one person representing the 
agency. 
"(c) ADMINISTRATIVE SUPPORT.—The agency shall provide appro-
priate administrative support to the negotiated rulemaking commit-
tee, including technical assistance. 
"§ 586. Conduct of committee activity 
"(a) DUTIES OF COMMITTEE.—Each negotiated rulemaking commit-
tee established under this subchapter shall consider the matter 
proposed by the agency for consideration and shall attempt to reach 
a consensus concerning a proposed rule with respect to such matter 
and any other matter the committee determines is relevant to the 
proposed rule. 
"(b) REPRESENTATIVES OF AGENCY ON COMMITTEE.—The person or 
persons representing the agency on a negotiated rulemaking 
committee shall participate in the deliberations and activities of the 
committee with the same rights and responsibilities as other mem-
bers of the committee, and shall be authorized to fully represent the 
agency in the discussions and negotiations of the committee. 
"(c) SELECTING FACILITATOR.—Notwithstanding section 10(e) of the 
Federal Advisory Committee Act, an agency may nominate either a 
person from the Federal Government or a person from outside the 
Federal Government to serve as a facilitator for the negotiations of 
-
the committee, subject to the approval of the committee by consen-
sus. If the committee does not approve the nominee of the agency for 
facilitator, the agency shall submit a substitute nomination. If a 
committee does not approve any nominee of the agency for 
facilitator, the committee shall select by consensus a person to serve 
as facilitator. A person designated to represent the agency in sub-
stantive issues may not serve as facilitator or otherwise chair the 
committee. 
"(d) DUTIES OF FACILITATOR.—A facilitator approved or selected by 
a negotiated rulemaking committee shall— 
"(1) chair the meetings of the committee in an impartial 
manner; 
"(2) impartially assist the members of the committee in 
conducting discussions and negotiations; and 
"(3) manage the keeping of minutes and records as required Records, 
under section 10 (b) and (c) of the Federal Advisory Committee 
Act, except that any personal notes and materials of the 
facilitator or of the members of a committee shall not be subject 
to section 552 of this title. 
"(e) COMMITTEE PROCEDURES.—A negotiated rulemaking commit-
tee established under this subchapter may adopt procedures for the 
operation of the committee. No provision of section 553 of this title 
shall apply to the procedures of a negotiated rulemaking committee. 
"(f) REPORT OF COMMITTEE.—If a committee reaches a consensus 
on a proposed rule, at the conclusion of negotiations the committee 
shall transmit to the agency that established the committee a report 
containing the proposed rule. If the committee does not reach a 
consensus on a proposed rule, the committee may transmit to the 
agency a report specifying any areas in which the committee 
reached a consensus. The committee may include in a report any 
, ' 
other information, recommendations, or materials that the commit-
tee considers appropriate. Any committee member may include as 
104 STAT. 4974 
PUBLIC LAW 101-648—NOV. 29, 1990 
an addendum to the report additional information, recommenda-
tions, or materials. 
, 
"(g) RECORDS OF COMMITTEE.—In addition to the report required by 
subsection (f), a committee shall submit to the agency the records 
required under section 10 (b) and (c) of the Federal Advisory 
Committee Act. 
"§ 587. Termination of committee 
"A negotiated rulemaking committee shall terminate upon 
promulgation of the final rule under consideration, unless the 
committee's charter contains an earlier termination date or the 
agency, after consulting the committee, or the committee itself 
specifies an earlier termination date. 
"§ 588. Services, facilities, and payment of committee member 
expenses 
"(a) SERVICES OF CONVENERS AND FACILITATORS.— 
"(1) IN GENERAL.—An agency may employ or enter into con-
tracts for the services of an individual or organization to serve 
as a convener or facilitator for a negotiated rulemaking commit-
tee under this subchapter, or may use the services of a Govern-
ment employee to act as a convener or a facilitator for such a 
committee. 
"(2) DETERMINATION OF CONFLICTING INTERESTS.—An agency 
shall determine whether a person under consideration to serve 
as convener or facilitator of a committee under paragraph (1) 
has any financial or other interest that would preclude such 
person from serving in an impartial and independent manner. 
"(b) SERVICES AND FACIUTIES OF OTHER ENTITIES.—For purposes of 
this subchapter, an agency may use the services and facilities of 
other Federal agencies and public and private agencies and 
instrumentalities with the consent of such agencies and instrumen-
talities, and with or without reimbursement to such agencies and 
instrumentalities, and may accept voluntary and uncompensated 
services without regard to the provisions of section 1342 of title 31. 
The Federal Mediation and Conciliation Service may provide serv-
ices and facilities, with or without reimbursement, to assist agencies 
under this subchapter, including furnishing conveners, facilitators, 
and training in negotiated rulemaking. 
"(c) EXPENSES OF COMMITTEE MEMBERS.—Members of a negotiated 
rulemaking committee shall be responsible for their own expenses of 
participation in such committee, except that an agency may, in 
accordance with section 7(d) of the Federal Advisory Committee Act, 
pay for a member's reasonable travel and per diem expenses, ex-
penses to obtain technical assistance, and a reasonable rate of 
compensation, i
f
— 
"(1) such member certifies a lack of adequate financial re-
sources to participate in the committee; and 
"(2) the agency determines that such member's participation 
in the committee is necessary to Eissure an adequate representa-
tion of the member's interest. 
"(d) STATUS OF MEMBER AS FEDERAL EMPLOYEE.—A member's 
receipt of funds under this section or section 589 shall not conclu-
sively determine for purposes of sections 202 through 209 of title 18 
whether that member is an employee of the United States Govern-
ment. 
PUBLIC LAW 101-648—NOV. 29, 1990 
104 STAT. 4975 
"§ 589. Role of the Administrative Conference of the United States 
and other entities 
"(a) CONSULTATION BY AGENCIES.—An agency may consult with 
the Administrative Conference of the United States or other public 
or private individuals or organizations for information and assist-
ance in forming a negotiated rulemaking committee and conducting 
negotiations on a proposed rule. 
"(b) ROSTER OF POTENTIAL CONVENERS AND FACILITATORS.—The 
Administrative Conference of the United States, in consultation 
with the Federal Mediation and Conciliation Service, shall maintain 
a roster of individuals who have acted as or are interested in serving 
as conveners or facilitators in negotiated rulemaking proceedings. 
The roster shall include individuals from government agencies and 
private groups, and shall be made available upon request. Agencies 
may also use rosters maintained by other public or private individ-
uals or organizations. 
"(c) PROCEDURES TO OBTAIN CONVENERS AND FACILITATORS.— 
"(1) PROCEDURES.—The Administrative Conference of the 
United States shall develop procedures which permit agencies 
to obtain the services of conveners and facilitators on an expe-
dited basis. 
"(2) PAYMENT FOR SERVICES.—Payment for the services of 
conveners or facilitators shall be made by the agency using the 
services, unless the Chairman of the Administrative Conference 
agrees to pay for such services under subsection (f). 
"(d) COMPILATION OF DATA ON NEGOTIATED RULEMAKING; REPORT 
T
O CONGRESS.— 
"(1) COMPILATION OF DATA.—The Administrative Conference 
of the United States shall compile and maintain data related to 
negotiated rulemaking and shall act as a clearinghouse to assist 
agencies and parties participating in negotiated rulemaking 
proceedings. 
"(2) SUBMISSION OF INFORMATION BY AGENCIES.—Each agency 
engaged in negotiated rulemaking shall provide to the Adminis-
trative Conference of the United States a copy of any reports 
submitted to the agency by negotiated rulemaking committees 
under section 586 and such additional information as necessary 
to enable the Administrative Conference of the United States to 
comply with this subsection. 
"(3) REPORTS TO CONGRESS.—The Administrative Conference of 
the United States shall review and analyze the reports and 
information received under this subsection and shall transmit a 
biennial report to the Committee on Governmental Affairs of 
the Senate and the appropriate committees of the House of 
Representatives that— 
"(A) provides recommendations for effective use by agen-
cies of negotiated rulemaking; and 
"(B) describes the nature and amounts of expenditures 
made by the Administrative Conference of the United 
States to accomplish the purposes of this subchapter. 
"(e) TRAINING IN NEGOTIATED RULEMAKING.—The Administrative 
Conference of the United States is authorized to provide training in 
negotiated rulemaking techniques and procedures for personnel of 
the 
Federal 
Government 
either 
on a 
reimbursable 
or 
nonreimbursable basis. Such training may be extended to private 
individuals on a reimbursable basis. 
104 STAT. 4976 
PUBLIC LAW 101-648—NOV. 29, 1990 
"(f) PAYMENT OF EXPENSES OF AGENCIES.—The Chairman of the 
Administrative Conference of the United States is authorized to pay, 
upon request of an agency, all or part of the expenses of establishing 
a negotiated rulemaking committee and conducting a negotiated 
rulemaking. Such expenses may include, but are not limited to— 
"(1) the costs of conveners and facilitators; 
"(2) the expenses of committee members determined by the 
agency to be eligible for assistance under section 588(c); and 
"(3) training costs. 
Determinations with respect to payments under this section shall be 
at the discretion of such Chairman in furthering the use by Federal 
agencies of negotiated rulemaking. 
"(g) USE OF FUNDS OF THE CONFERENCE.—The Administrative 
Conference of the United States may apply funds received under 
section 575(cX12) of this title to carry out the purposes of this 
subchapter. 
"§ 590. Judicial review 
"Any agency action relating to establishing, assisting, or termi-
nating a negotiated rulemaking committee under this subchapter 
shall not be subject to judicial review. Nothing in this section shall 
bar judicial review of a rule if such judicial review is otherwise 
provided by law. A rule which is the product of negotiated rule-
making and is subject to judicial review shall not be accorded any 
greater deference by a court than a rule which is the product of 
other rulemaking procedures.". 
(b) The table of sections at the beginning of chapter 5 of title 5, 
United States Code, is amended by adding at the end the following: 
"SUBCHAPTER IV—NEGOTIATED RULEMAKING PROCEDURE 
"Sec. 581. Purpose. 
"Sec. 582. Definitions. 
"Sec. 583. Determination of need for negotiated rulemaking committee. 
"Sec. 584. Publication of notice; applications, for membership on committees. 
"Sec. 585. Establishment of committee. 
"Sec. 586. Conduct of committee activity. 
"Sec. 587. Termination of committee. 
"Sec. 588. Services, facilities, and pajmient of committee member expenses. 
"Sec. 589. Role of the Administrative Conference of the United States and other 
entities. 
"Sec. 590. Judicial review.". 
5 u s e 581 note. 
SEC. 4. AUTHORIZATION OF APPROPRIATIONS. 
In order to carry out this Act and the amendments made by this 
Act, there are authorized to be appropriated to the Administrative 
Conference of the United States, in addition to amounts authorized 
by section 576 of title 5, United States Code, not in excess of $500,000 
for each of the fiscal years 1991,1992, and 1993. 
5 u s e 581 note. 
SEC. 5. SUNSET AND SAVINGS PROVISIONS. 
Subchapter IV of title 5, United States Code, as added by section 3 
of this Act, and that portion of the table of sections at the beginning 
of chapter 5 of title 5, United States (Dode, relating to subchapter IV, 
are repealed, effective 6 years after the date of the enactment of this 
Act, except that the provisions of such subchapter shall continue to 
PUBLIC LAW 101-648—NOV. 29, 1990 
104 STAT. 4977 
apply after the date of the repeal with respect to then pending 
negotiated rulemaking proceedings initiated before the date of 
repeal which, in the judgment of the agencies which are convening 
or have convened such proceedings, require such continuation, until 
such negotiated rulemaking proceedings terminate pursuant to such 
subchapter. 
Approved November 29, 1990. 
LEGISLATIVE HISTORY—S. 303 (H.R. 743): 
HOUSE REPORTS: No. 101-461 accompanying H.R. 743 (Ck)mm. on the Judiciary). 
SENATE REPORTS: No. 101-97 (Comm. on Governmental Affairs). 
CONGRESSIONAL RECORD: 
Vol. 135 (1989): Aug. 3, considered and passed Senate. 
Vol. 136 (1990): May 1, H.R. 743 considered and passed House; proceedings 
vacated and S. 303, amended, passed in lieu. 
Oct. 4, Senate concurred in House amendments with 
amendments. 
Oct. 22, House concurred in Senate amendments. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 26 (1990): 
Nov. 29, Presidential statement. 
o