Administrative Conference of the United States

NEGOTIATED RULEMAKING
Final Report: June 5, 2017

Cheryl Blake

Reeve T. Bull

Attorney Advisor

Research Chief

Administrative Conference of
the United States

Administrative Conference of
the United States

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions,
views and recommendations expressed are those of the authors and do not necessarily reflect those of the members
of the Conference or its committees, except where formal recommendations of the Conference are cited.

June 5, 2017

Acknowledgements
The authors would like to thank Daniel Cohen, Neil Eisner, Jeffrey Lubbers, David
Pritzker, and Richard Parker for their assistance and guidance from the inception of this project
to its conclusion. To the several current and former agency officials, facilitators, and other
experts who confidentially provided their candid and thoughtful remarks, the authors also
express their sincere gratitude. Finally, the authors thank Matthew Wiener, Vice Chairman of
ACUS, Daniel Sheffner, Attorney Advisor at ACUS, and Cary Coglianese, Chair of the ACUS
Committee on Rulemaking and Edward B. Shils Professor of Law at the University of
Pennsylvania for their immensely helpful commentary on drafts of this report.

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Table of Contents
I.

Introduction ........................................................................................................................................... 1

II.

Background ........................................................................................................................................... 3
A.

Development of Negotiated Rulemaking .......................................................................................... 4

B.

Scholarly Assessments of Negotiated Rulemaking........................................................................... 7

C.

Current Status of Negotiated Rulemaking and Alternative Consultation Procedures..................... 11

III.

Negotiated Rulemaking in Context ................................................................................................. 13

A.

Spectrum of Stakeholder Engagement Options .............................................................................. 13

B.

Choosing between Negotiated Rulemaking and Other Engagement Options ................................. 16
1.

Stage in Policy Development ...................................................................................................... 17

2.

Goals and Anticipated Outcomes of the Process ........................................................................ 17

3.

Issues for Discussion................................................................................................................... 19

4.

Other Constraints to Consider ..................................................................................................... 20

IV.

Case Studies .................................................................................................................................... 22

A.

Full Consensus: Coast Guard’s Oil Spill Vessel Response Plans Rulemaking .............................. 22

B.

Partial Consensus: EPA’s Asbestos in Schools Rulemaking .......................................................... 22

C.

Failure to Reach Consensus: NPS Cape Hatteras Off-Road Vehicles Rulemaking........................ 24

V.

Planning for a Successful Negotiated Rulemaking ............................................................................. 27
A.

Selecting a Neutral .......................................................................................................................... 27

B.

Assembling the Committee ............................................................................................................. 28

C.

Conducting the Negotiation and Reaching Consensus ................................................................... 31

D.

Issuing the NPRM and Proceeding with Informal Rulemaking ...................................................... 32

VI.

Recommendations ........................................................................................................................... 32

Appendix ........................................................................................................................................................ i

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I.

Introduction

Since the enactment of the Administrative Procedure Act (APA) in 1946, stakeholder input
has been an integral component of the so-called “informal rulemaking” process. Under the APA’s
notice-and-comment provisions, an agency seeking to promulgate a rule must publish a notice of
proposed rulemaking (NRPM) in the Federal Register, solicit public comments on the rule, and
then consider the “significant matter presented” in these comments and modify the proposed rule
as appropriate. To the extent the agency fails to do so, an aggrieved party can challenge the
agency’s rule in court, seeking to establish that the agency acted “arbitrarily and capriciously” in
failing to account for pertinent information contained in the public comments.
The public comment process arguably democratizes federal agency rulemaking and
certainly gives agencies access to information that they might not otherwise develop internally.
Still, the model contains inherent limitations in that it assigns an essentially reactive role to the
general public and, accordingly, often places the agency in a defensive posture. Specifically, once
the agency has prepared an NPRM, it has already committed at least to an overall strategy and may
incur significant costs in modifying its preferred approach. For their part, stakeholders may be
disinclined to engage constructively with the process, instead simply filing comments in order to
preserve the opportunity to challenge the agency’s rule in court once it is finalized.
In the 1970s and 1980s, as legal reform advocates sought to expand the use of alternative
dispute resolution (ADR) to reduce the incidence of litigation, administrative law scholars began
to consider whether importing ADR norms into the rulemaking process might alleviate some of
these tensions and create a more constructive, collaborative dynamic between agencies and
stakeholders. The procedure that they ultimately devised, known as “negotiated rulemaking,”
brings together an advisory committee of key stakeholder groups to collaborate on the formulation
of an NPRM. The committee is typically led by an ADR expert (usually termed a “convenor” or
“facilitator” at different stages of the process)1 who establishes mutually agreed upon ground rules
for the negotiation, seeks to flesh out the stakeholders’ positions, identifies and gathers information
on relevant questions of fact, and guides participants towards producing a draft rule text based on
group consensus. In theory, this should lead to a more well-informed, broadly acceptable NPRM
than an agency could have produced using only notice-and-comment. Further, the process should
simplify the agency’s task by ensuring that various conflicts among stakeholder groups are
resolved prior to the issuance of an NPRM and should reduce the incidence of post-promulgation
litigation, given that the key stakeholders have essentially agreed to the rule in principle.
Of course, even based on this oversimplified description of the model, one can identify any
number of potential limitations. For instance, if a convenor cannot identify all relevant stakeholder
groups, or if they are too numerous, the negotiation would be imbalanced and should not proceed.
Indeed, recruiting only institutionalized, well-resourced stakeholders could promote a sort of
agency capture, while those excluded would be especially likely to challenge the rule in court. In
As defined by the Negotiated Rulemaking Act, 1996, a convenor “means a person who impartially assists an
agency in determining whether establishment of a negotiated rulemaking committee is feasible and appropriate in a
particular rulemaking,” while a facilitator is “a person who impartially aids in the discussions and negotiations
among the members of a negotiated rulemaking committee to develop a proposed rule.” 5 U.S.C. § 562. In
practice, these functions are frequently undertaken by the same individual. See infra pp. 26–27.
1

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these cases, negotiated rulemaking would impose added procedural burdens on agencies without
netting promised efficiencies. To better understand when negotiated rulemaking might suffer from
these limitations—and under what circumstances the process is likely to yield benefits—an
examination of its use is in order.
Over the last thirty years, numerous agencies have conducted negotiated rulemakings,
providing a record for assessing the procedure’s success in accomplishing its purported goals. The
Administrative Conference championed the use of negotiated rulemaking in the 1980s, issuing two
recommendations that encouraged agencies to consider the procedure and exploring the instances
in which it was likely to prove effective. Congress formally blessed the practice in 1990 by
enacting the Negotiated Rulemaking Act (though a handful of agencies had already conducted
negotiated rulemakings prior to that point), and the procedure became increasingly popular over
the course of the 1990s. Its use peaked in the late-1990s, and its prevalence declined markedly
over the 2000s. In the last few years, the procedure has enjoyed something of a mini-resurgence,
as the Departments of Transportation and Energy have deployed it in a handful of high-profile
rulemakings, but it has not come close to recapturing the popularity it enjoyed in its heyday.
One can posit any number of possible explanations for this pattern. It may be that reaching
consensus on complex, contested policy questions is too difficult to achieve in most circumstances.
Or, flawed execution, misperceptions as to its usefulness, or cost or external legal constraints could
hobble the process. Unfortunately, it is quite challenging to test the causes for negotiated
rulemaking’s decline, or the optimal circumstances under which it could be used, empirically. No
agency could conduct a controlled experiment in which it compares the effectiveness of negotiated
rulemaking to some alternative procedure and determines which produces a superior result. One
is therefore left to examine the instances in which agencies have conducted negotiated rulemakings
and attempt to discern which factors cut for or against its success. Yet the impossibility of
constructing a counter-factual scenario warrants caution in making assertions about negotiated
rulemaking’s effectiveness vel non via this approach.2
In that light, this report does not attempt to definitively explain the rise and fall of
negotiated rulemaking over the past decades. Similarly, it takes no position on whether agencies
should use negotiated rulemaking more or less frequently. Instead, it draws upon case studies, the
scholarly literature, and interviews with negotiated rulemaking experts (including proponents and
skeptics in agencies, the private sector, and academia) in order to get a better sense of how agencies
have structured their stakeholder outreach efforts and where negotiated rulemaking fits into the
array of options they have available.
As the report will show, negotiated rulemaking is simply one tool among many that
agencies can use to leverage stakeholder input in order to improve the quality of their rules. The
Specifically, though some negotiated rulemakings may be deemed “successful,” it is entirely possible that a less
burdensome approach (e.g., enhanced stakeholder outreach) could have produced a similar result at a much lower
cost to the agency. By the same token, though some negotiated rulemakings may be deemed to have “failed,” it is
always possible that the agency would have “succeeded” had it restructured the process (or that external constraints,
such as adherence to the requirements of the Federal Advisory Committee Act, doomed the process from the outset).
Similarly, it is possible that the agency might have “succeeded” had it set different goals at the outset. Finally, even
some “failures” can be deemed at least partially successful due to the information obtained by the agency, especially
as to where a partial consensus might exist.
2

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report seeks to highlight this spectrum of options and identify the considerations that may counsel
in favor of any given approach. It also reviews the cases in which negotiated rulemaking has
yielded a result that is deemed satisfactory to both the agency and stakeholders in order to identify
the factors that maximize the probability that the process will produce a constructive outcome. In
many respects, this involves managing the expectations of the participants, clearly announcing
what the agency hopes to achieve with the process and carefully defining the committee’s mandate
(e.g., identifying certain approaches that the agency is statutorily prohibited from taking). It also
requires a levelheaded appreciation of the limitations of the process. For instance, negotiated
rulemaking neither can nor should replace regulatory review by the Office of Information and
Regulatory Affairs or the notice-and-comment process. The ensuing recommendations should
prove useful to agencies as they consider the range of options for stakeholder engagement and
decide both which approach to take and how to structure the process to maximize success.
The authors would note one final point before delving into the discussion. The primary
purpose of the report is to offer an overview of the range of available stakeholder engagement
opportunities and of the considerations that factor into selecting negotiated rulemaking or one of
the other potential options. For those who seek a more detailed overview of these matters, the
authors would highly recommend David Pritzker and Deborah Dalton’s Negotiated Rulemaking
Sourcebook, copies of which are available in the Administrative Conference library.

II.

Background

For decades, administrative law practitioners and scholars have searched for remedies to
the delay, high cost, and litigation that often afflict the rulemaking process.3 First proposed in the
1980s, negotiated rulemaking is a procedure designed to remedy what has been considered one
significant, underlying cause of each of these ills—entrenched adversarial positions among
agencies and various stakeholder groups.
In connection with the rise of ADR in courts and other contexts throughout the 1970s and
1980s, a small cohort of scholars4 and agency officials5 advocated for the use of negotiation and
consensus-building methods in the development of proposed rules. They ultimately designed a
process that came to be called “regulatory negotiation” or “negotiated rulemaking” (often
shortened to Reg Neg). In conducting a Reg Neg, an agency convenes an advisory committee—
comprised of agency officials and the range of stakeholders interested in a potential rule—to
openly debate the arguments, data, and priorities at issue with the goal of reaching consensus on
the content of a draft notice of proposed rulemaking (NPRM). After the committee agrees on the
content of a proposed rule, an agency issues the consensus NPRM and the standard procedural
safeguards of the notice-and-comment process then proceed as prescribed by the APA.6

3

Philip Harter traces such concerns back to the late 1960s, only 20 years after the Administrative Procedure Act was
passed. Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 GEO. L.J. 1, 1–2 (1982).
4
See, e.g., Peter H. Schuck, Litigation, Bargaining, and Regulation, 3 REG. 26, 32 (1979); Harter, supra note 3,
passim.
5
Administrative Conference of the United States, Recommendation 82-4, Procedures for Negotiating Proposed
Regulations, 47 Fed. Reg. 30,701 (July 15, 1982); Administrative Conference of the United States,
Recommendation 85-5, Procedures for Negotiating Proposed Regulations, 50 Fed. Reg. 52,893 (Dec. 27, 1985).
6
5 U.S.C. § 553.

3

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Such a collaborative process was designed not only to reduce the incentive to posture in
anticipation of litigation, as had become increasingly common in traditional informal rulemaking,
but also to produce a better rule reflecting input from key stakeholders and incorporating
information to which the agency might not have otherwise had access. Nevertheless, following
the APA’s existing notice-and-comment requirements would ensure that any inaccuracies or
omissions could be commented upon by the public and that any parties not invited to participate
in the Reg Neg would still have an opportunity to comment (of course, participants themselves can
and do comment on the proposal). Notably, as originally envisioned, post-negotiation notice-andcomment procedures should act as a failsafe; stakeholders selected to serve on the negotiated
rulemaking committee are intended to represent the broader interests and concerns of the group of
which they are a part, rather than only the perspective of their own organization. As such, through
this procedural design, the developers of Reg Neg hoped to increase the efficiency of the
rulemaking process as well as the ultimate quality of final rules.
A. Development of Negotiated Rulemaking
Suggestions that some form of negotiation may assist agencies in the rulemaking process
had been made since the late 1970s.7 However, the process known today as negotiated rulemaking
only began to take shape in connection with a set of research articles and recommendations issued
by the Administrative Conference of the United States (ACUS) in 1982 and 1985. As an
independent agency tasked with advising federal agencies, Congress, and the courts on
improvements to administrative procedures, ACUS was well-situated to bring together scholars,
agency officials, and experts in ADR and related fields to propose how negotiation and consensusbuilding could be used to draft regulations.
The Conference twice addressed the subject through Recommendations 82-4 and 85-5,
both entitled Procedures for Negotiating Proposed Regulations.
The first of these
recommendations noted that negotiation on the content of a rule was not without precedent; such
efforts were often undertaken in the context of settling legal challenges to rules brought by affected
parties.8 Professor Philip Harter, the consultant to the 1982 ACUS project, drafted the first
proposal to bring this negotiation process to the front-end of rulemaking.
In his report to the Conference, Harter examined methods that provided antecedents for the
structured negotiated rulemaking process that he proposed would “cure the malaise” of
adversarialism in rulemaking.9 These analogous methods included not only the use of negotiated
settlements but also the development of consensus standards in highly technical policy areas10 and
innovative cases such as the National Coal Policy Project, an initiative led by the coal industry to
identify areas of agreement with environmental groups.11 Harter aimed to build on the strengths
7

See Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 DUKE
L.J. 1255, 1261–62 (1997).
8
ACUS Recommendation 82-4, supra note 5, at preamble.
9
Harter, supra note 3, at 31–41.
10
Examples of such technical standards range from those on the “threads for fitting light bulbs to lamps . . . [to]
control technologies for nuclear power plants.” Harter, supra note 3, at 34–35.
11
The National Coal Policy Project (NCPP) originated in the mid-1970s with industry efforts to work with
environmentalists to identify common points of agreement among the two traditionally adversarial groups. Industry
stakeholders believed it was important to more heavily use coal, compared to oil and natural gas, but recognized
environmental groups would object. In an effort to minimize disagreement, over a period of five years the NCPP

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of these efforts by designing a holistic procedure for negotiation that would take place before an
agency issued an NPRM. By charging the committee to reach consensus on the content of what
would become the NPRM, all parties would be sufficiently invested in the outcome to deliberate
on its content, bargain over priorities, and support the rule once final.
However, even the strongest proponents of the process never claimed that regulatory
negotiation would be appropriate in all circumstances. A key element for success in such a process
is that each party must feel it will gain more by participating than by pursuing other options,
including litigation.12 Harter proposed a number of considerations to help agencies determine
when investing resources in Reg Neg might be worthwhile. Specifically, there should be a
sufficiently limited and identifiable number of stakeholders such that parties can effectively meet
and negotiate; the questions at issue must be mature for discussion; trade-offs must be possible; it
must be clear that the agency intends to imminently decide the questions under consideration; and
the questions must not turn on “fundamental values” of the participating parties.13
Drawing on Harter’s report, the 1982 ACUS recommendation sketches out the procedural
structure for a consensus-building process. Broadly, an agency would establish a regulatory
negotiation committee comprised of an agency official—with the seniority to speak with authority
on the agency’s policy goals, possible trade-offs, etc.—and representatives of various industry
groups, non-profits, tribal or local authorities, and other stakeholders who would be affected by
the agency’s decision.14 Once the decision to engage in the process was made, it was proposed
that the agency should publish a notice of intent to form a negotiated rulemaking committee in the
Federal Register.15 As such, stakeholders who may not have already been selected for the
committee may petition to join.
In order to facilitate negotiation among the participants, Harter emphasized that the agency
should select a neutral individual, preferably a practitioner with experience in mediation or related
fields, to act as a convenor.16 The convenor would help identify appropriate individuals to serve
as part of the negotiation committee, and frame the questions for discussion to ensure the
committee’s deliberations addressed all relevant issues.17 Additionally, the convenor (or
facilitator) would play a central role in educating participants about the goals and norms of the
negotiation; prompting participants to identify data, arguments and priorities for debate;
supporting the ranking of priorities; and ensuring no one voice drowns out others.18
The first agency effort to implement the model proposed by ACUS Recommendation 824 and Harter’s report was the Federal Aviation Administration’s (FAA) 1983 Flight Time rule.19
The Environmental Protection Agency (EPA) and Occupational Safety and Health Administration
(OSHA) had also experimented with the process and achieved useful results, if not always full
identified and published 200 points on which industry and environmental groups agreed. Harter, supra note 3, at
38–40.
12
Id. at 43.
13
Id. at 46–51.
14
ACUS Recommendation 82-4, supra note 5, at Recommendations 7 and 8.
15
Id. at Recommendation 7.
16
Id. at Recommendation 3.
17
Id. at Recommendations 3 and 4.
18
Id. at Recommendation 4.
19
Coglianese, supra note 7, at 1263.

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consensus on a draft NPRM.20 Though agencies had enthusiastically pursued this initial wave of
experimentation, the process for Reg Neg remained somewhat abstract—and, for some, of
uncertain legality.21 To assess recent agency experience with regulatory negotiation and advance
use of the process, ACUS issued another set of recommendations in 1985. To effectuate the
procedural guidelines outlined in the first set of recommendations, ACUS made additional
proposals including the development of opportunities to train agency staff in negotiation and
facilitation and the maintenance of rosters of facilitators. The recommendations also emphasized
the varied forms negotiations could take and the possibility that agencies might use negotiation at
various stages in the rulemaking process.22
Both sets of recommendations, in concert with advocacy by those involved in developing
and experimenting with the process, led to the passage of the Negotiated Rulemaking Act in 1990.
The Act’s main purpose was to clarify agencies’ legal authority to use Reg Neg, rather than to
impose additional requirements. The Act directed agency heads to consider the following factors
when deciding whether using Reg Neg would be in the public interest: the need for a rule, the
number of identifiable interests significantly affected by a proposed rule, the likelihood of
convening a balanced committee, the likelihood of reaching consensus in a fixed period of time,
whether using the procedure would introduce unreasonable delay in the rulemaking process,
whether the agency has adequate resources to commit to the process, and whether the agency is
willing to rely on the committee’s consensus, consistent with its other legal obligations.23
Further, the Act provided the following steps an agency should take during Reg Neg:
1. The agency should engage a convenor to identify stakeholders likely to be affected
by a rule, and the convenor should establish whether forming a negotiated
rulemaking committee would be “feasible and appropriate.”24 The convenor
should then make recommendations to the agency.
2. Assuming the convenor and agency’s assessment is positive, the agency should
publish a notice of intent to form a negotiated rulemaking committee in the Federal
Register. The notice should describe the subject of the proposed rule, list the
interests that will be affected along with individuals identified to represent those
interests, allow members of the public to petition to be included on the committee,
propose an agenda and schedule for the negotiation, and allow for public
comments.25
3. If an agency decides to proceed based on public comments and petitions to join the
committee submitted in response to the preceding notice, it should establish a
committee in compliance with the applicable provisions of the Federal Advisory
Committee Act (FACA). If the agency decides not to proceed, the agency should
publish a Federal Register notice explaining why.26
20

ACUS Recommendation 85-5, supra note 5, at preamble.
Cornelius M. Kerwin, Assessing the Effects of Consensual Processes in Regulatory Programs: Methodological
and Policy Issues, 32 AM. U. L. REV. 401, 409 (1983).
22
ACUS Recommendation 85-5, supra note 5, at Recommendation 3.
23
Negotiated Rulemaking Act of 1990, Pub. L. No. 101-648, 104 Stat. 4969, 5 U.S.C § 583.
24
Id. at § 583(b).
25
Id. at § 584.
26
Id. at § 585(a).
21

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4. The agency should select a facilitator to chair the committee meetings, “impartially
assist the members of the committee in conducting discussions and negotiations,”
and “manage the keeping of minutes and records as required” by FACA.27
5. During the negotiation, the committee is charged to consider the matter proposed
by the agency and work to reach consensus. Agency representatives should sit on
the committee with the same rights and responsibilities as other participants, and
will be authorized to represent the agency in discussions.28
6. If a committee reaches full or partial consensus, it should prepare a report to the
agency documenting the areas on which it agreed along with any other material it
deems appropriate. The committee will also submit records required by FACA.29
7. Finally, the committee shall terminate, consistent with its charter, once its task is
complete.30
In addition to these procedures, the Act authorized agencies to terminate a committee, use
appropriated funds for a Reg Neg, and employ the services of a private facilitator or the Federal
Mediation and Conciliation Service (FMCS).31 ACUS was further authorized to provide training
on Reg Neg to agencies, maintain a roster of qualified facilitators, and report to Congress on the
use and advancement of the process.32 Notably, the ACUS Chairman was authorized to cover the
expenses of an agency’s negotiated rulemaking, should the head of that agency request it. 33 The
role envisioned for ACUS to continuously monitor and support the use of Reg Neg came to an end
when the agency was defunded in 1995.34 When the Negotiated Rulemaking Act was permanently
reauthorized in 1996, no other entity was empowered to take on a similar role with respect to
negotiated rulemaking.35
B. Scholarly Assessments of Negotiated Rulemaking
Throughout the 1990s, agencies continued to use Reg Neg. Along with other regulatory
reform efforts, the Clinton administration endorsed the use of Reg Neg in appropriate contexts as
a method for better informing agency rules and enabling public participation.36 Further, Congress
occasionally mandated the use of the process when passing new legislation that directed agencies
to address certain complex policy problems.37 These actions demonstrate the widespread
27

Id. at § 586(c).
Id. at § 586(a)–(b).
29
Id. at § 586(f).
30
Id. at § 587.
31
Id. at § 589.
32
Id.
33
Id.
34
The Office of the Chairman published a comprehensive sourcebook on negotiated rulemaking authored by David
Pritzker and Deborah Dalton. The publication remains an excellent resource on the process and, as noted in the
introduction, copies are available in the ACUS library. NEGOTIATED RULEMAKING SOURCEBOOK (David M.
Pritzker & Deborah S. Dalton, eds., 1995).
35
The Negotiated Rulemaking Act of 1996, Pub. L. 104-320 (amending Pub. L. 101-648 and Pub. L. 102-354).
36
See, e.g., Presidential Memorandum for Exec. Dep’ts & Selected Agencies; Administrator Office of Info. & Reg.
Affairs, Negotiated Rulemaking (Sept. 30, 1993), available at
http://govinfo.library.unt.edu/npr/library/direct/memos/2682.html. See also Exec. Order 12,866, § 6(a)(1).
37
Coglianese, supra note 7, at 1256, 1268. See discussion in footnotes 5 and 75 of Coglianese’s article for
legislation in the 1990s mandating the use of negotiated rulemaking. Over a dozen were passed before 1997,
including the Student Loan Reform Act of 1993 (Pub. L. No. 103-66, § 4021, 107 Stat. 341, 353) and the Native
28

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agreement among government actors that a collaborative process like Reg Neg had the potential
to address certain shortcomings in the rulemaking process.
Though support for the goals behind the process remained strong, at this time there was
little systematic analysis on the question of whether Reg Neg had met its stated aims—or whether
it was the only way of doing so. In response, scholars sought to determine whether the benefits of
the process were being achieved in practice, in addition to debating the strengths and weaknesses
of Reg Neg. It is worth noting that the goal of the following discussion is to describe the history
of scholarly analysis of Reg Neg. In so doing, we hope to clearly flesh out many of the process’s
benefits, as well as the concerns of critics, which will be referred to in later sections.
Among the first quantitative analyses of negotiated rulemaking was Professor Cary
Coglianese’s empirical assessment of all Reg Negs commenced since 1985.38 Previous scholarly
publications had tended to focus on case studies, which provided qualitative assessments and
lessons learned based on an agency or practitioner’s experience with Reg Neg.39 By analyzing
data in aggregate, Coglianese’s study intended to answer whether the process had achieved two of
its stated goals: “reducing overall rulemaking time and decreasing the number of judicial
challenges to agency rules.”40 While these are only two of the several stated goals of Reg Neg,
they are the most straightforward to assess empirically.
To assess whether using negotiated rulemaking saved time in the development of rules,
Coglianese analyzed the 35 instances in which the process had led to final rules. 41 The shortest
took half a year and the longest took nearly seven. 42 Comparing EPA’s negotiated versus
traditional rulemakings—based on the time between the publication of an initial notice and final
rule—tended to show that Reg Negs saved roughly three months compared to rules promulgated
under notice-and-comment, though it is worth noting that the exact amount of time varied based
on the measures and samples used.43 Coglianese also noted that Reg Negs could take more
American Housing Assistance and Self-Determination Act of 1996 (Pub. L. No. 104–330, § 106(b), 110 Stat. 4016,
4029). Despite the rise and fall in negotiated rulemaking’s popularity, Congress has continued to mandate that
agencies use negotiated rulemaking in connection with programs conducted under certain statutes. A recent
example is the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7212, 118 Stat.
3638, 2829 (cited in Lubbers, infra note 68, at 995). For a case study of the congressionally-mandated use of Reg
Neg by the U.S. Department of Education, see Jeffrey S. Lubbers, Enhancing the Use of Negotiated Rulemaking by
the U.S. Department of Education (Dec. 5, 2014), in RECALIBRATING REGULATION OF COLLEGES AND
UNIVERSITIES, REPORT OF THE TASK FORCE ON FEDERAL REGULATION OF HIGHER EDUCATION, app. IV at 90 (2015),
available at http://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf.
38
This dataset totaled 35 negotiated rulemakings, of which roughly one-third (a total of 12) had come from
Environmental Protection Agency. Seven had been done by the Department of Transportation, six by the
Department of Education, and a total of ten by other agencies.
39
Coglianese, supra note 7, at 1258.
40
Id. at 1259.
41
Id. at 1279.
42
Id. at 1279.
43
Id. at 1280–84. It is also worth noting that, while the comparison between EPA’s negotiated and traditional
rulemakings was undertaken because of the high number of Reg Negs the agency had undertaken and the amount of
attention focused on the agency by other scholars and advocates of the process (particularly as shown in the
legislative history of the Negotiated Rulemaking Act), it is possible that EPA’s results are not fully generalizable to
all other agencies. In the process of drawing conclusions from the variety of studies undertaken, all readers should
closely examine the variety of factors influencing why Reg Neg seems to have achieved, or failed to achieve,
particular results under a given set of circumstances.

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aggregate time because they are more effortful than traditional rulemaking, thus requiring greater
investment of time and resources that could have been applied to other rulemaking efforts.44
Next, Coglianese turned to whether Reg Neg reduced the number of judicial challenges
brought against rules. First, it was necessary to establish a baseline for the litigation rate in
traditional rulemaking. A review of the legislative history leading up to the passage of the
Negotiated Rulemaking Act reveals heightened concern about the cost and delay of judicial
challenges to rules—in particular, an oft-quoted figure asserted that 80% of EPA rules faced
litigation.45 Finding no underlying source for this statistic, Coglianese undertook an independent
analysis of the EPA and D.C. Circuit litigation dockets.46 In so doing, he found the true litigation
rate to be only 26%.47
However, if Reg Neg was designed to facilitate rulemaking in particularly contentious
circumstances, a comparison to all rulemaking may not be warranted. As such, Coglianese further
narrowed the scope of challenged regulations to those that were significant48 and promulgated
under two major statutes—the Clean Air Act and Resource Conservation and Recovery Act.49
Even for this subset of rules, the litigation rate hovered in the range of 30% to 40%, not 80%.50
By comparison, six of EPA’s twelve Reg Negs (i.e., 50%) had faced judicial challenge.51 This
analysis suggested that not only was the perceived litigation rate much greater than the reality, but
that Reg Neg did not seem to result in the promised decrease in litigation (at least based on this
dataset). Coglianese therefore argued that the resource investment required by the process may
not be justified, particularly given that negotiation among stakeholders and the agency, even if
done more informally, nevertheless occurs in traditional notice-and-comment rulemaking.52
Moreover, Coglianese argued that Reg Neg may introduce new sources of conflict. For
instance, parties may contest who is included at the negotiating table and whether final rules reflect
the negotiated consensus; there may also be greater attention to the potential costs of a rule, rather
than potential net benefits.53 Even should these obstacles be overcome, a consensus-based NPRM
must still be open to change based on public comment and review by the Office of Information
and Regulatory Affairs (OIRA), whose oversight process accounts for a non-trivial portion of

44

Id. at 1284. This analysis reveals, at the very least, that those considering whether to use Reg Neg should be
attentive to precisely how the process might save time or other resources. Details of the factors that influence when
and how Reg Neg works best are discussed at length, infra. One brief example is that chartering a negotiated
rulemaking committee under the Federal Advisory Committee Act can take a substantial amount of time, a burden
mitigated when an agency is statutorily exempted from complying with the Act or when the agency charters a
standing committee from which sub-committees can be created, without the need for additional paperwork or
approval.
45
Id. at 1264–67.
46
Id. at 1298.
47
Id.
48
As used in this study, significant refers to those proposed rules EPA deemed of sufficient importance to publish in
its Unified Agenda, whether because they exceeded the annual economic impact threshold of $100 million or for
other reasons. Id. at 1299–1300.
49
Id. at 1300.
50
Id.
51
Id. at 1301.
52
Id.
53
Id. at 1322.

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rulemaking time.54 Ultimately, Coglianese asserted that, on the whole, agencies and stakeholders
are no better off trying to achieve consensus in Reg Neg than they are in using the more informal
consultative engagements.55
In response to Coglianese’s research Philip Harter argued that not only did Reg Neg have
other goals not accounted for in the article, but that the methodology was not appropriately
applied.56 Harter raised qualitative concerns that he argued were not captured in an empirical
analysis. For example, Harter posited that agencies may use Reg Neg to achieve more immediate
goals than a final rule, as in the case of the Coast Guard’s use of the process to negotiate an interim
agreement in response to a presidential deadline.57 In such cases, Harter argued, the agency’s final
goals were achieved more quickly than could have been done in conventional rulemaking. Indeed,
in contentious cases where an agency might otherwise take decades to issue a rule, negotiated
rulemaking might be one of few ways to advance the process along a reasonable timeline.58
Further, he argued that judicial challenges in Reg Negs did not target the final rule’s substance,
but focused on procedural issues.59
At a minimum, this exchange highlights the difficulties of clearly assessing a process with
benefits that are not readily quantifiable. Still, Coglianese’s response to Harter highlights that,
given the experimental nature of Reg Neg, the process requires rigorous evaluation to determine
whether the demands it places on agencies and stakeholders result in the anticipated benefits.60
Coglianese’s article emphasizes that the qualitative considerations raised by Harter do not displace
the empirical findings. For example, in the context of measuring the duration of rulemaking,
Coglianese cautions against Harter’s argument that Reg Negs should be considered complete when
the negotiation is over. Coglianese argues the publication date of the final rule must be used in
order to compare negotiated and traditional rulemakings, because that is the only kind of end date
the two procedures have in common. Basing comparisons on researchers’ “ad hoc decisions”
about start and end dates or other metrics undermines reliability and comparability among
studies.61
Another noteworthy empirical study by Professors Cornelius Kerwin and Laura Langbein
compared participants’ perceptions of the negotiated rulemaking process and conventional noticeand-comment rulemaking. Through in-depth interviews from participants in eight regulatory
negotiations and six comparable rules promulgated under notice-and-comment, their study found
that participants considered Reg Neg to produce “more learning [among stakeholders], better

54

Id. at 1329.
Id. at 1334.
56
Philip J. Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking, 9 N.Y.U. ENVTL.
L.J. 32, 32 (2000).
57
Id. at 43. Overall, Harter argues the time savings of Reg Neg are significant. Id. at 39–49.
58
See infra Section IV.C for a discussion of the challenges facing the National Park Service’s efforts to regulate the
use of Off-Road Vehicles on Cape Hatteras and the agency’s efforts to overcome them using negotiated rulemaking.
59
Id. at 49–50.
60
Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip
Harter, 9 N.Y.U. ENVTL. L.J. 386, 388, 393 (2001).
61
Id. at 408–09.
55

10

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quality rules, and higher [participant] satisfaction compared to conventional rulemaking.”62 As
Kerwin and Langbein note, however, participants’ perceptions of quality or satisfaction with
rulemaking outcomes do not necessarily measure the actual quality of final rules themselves
(although self-reported satisfaction with the process is nevertheless a meaningful finding in and of
itself).63 And, as noted by Professor Coglianese, Kerwin and Langbein’s sample of participants in
Reg Negs contains several EPA staff as well as state and local officials, while the sample of
participants from the traditional rulemakings contains no EPA staff and only a few state and local
officials.64 He argues that government actors (as opposed to regulated entities) are more likely to
view regulatory actions positively in any process.65
Occurring simultaneously with this empirical debate, other scholars raised normative
concerns with Reg Neg. Professor William Funk argued that negotiated rulemaking undermined
key principles of administrative law.66 In this view, because an agency’s statutory authority now
served as an outer limit on parties’ negotiation—rather than the driving force behind proposed
policy—regulatory negotiation undermined rule of law and the technical rationality that served as
the raison d’être of agencies.67 Funk also suggested that Reg Neg could constrain agencies from
independently ascertaining the public interest, and lead to agency capture.68 In a similar vein,
Professor Susan Rose-Ackerman expressed concern that Reg Neg could not be “democratically
legitimate unless all interested parties are adequately represented. Agreement among only the
subset of interests that have organized advocates is not sufficient.”69 To these arguments advocates
of Reg Neg would point out that it is indeed for these kinds of reasons that the Negotiated
Rulemaking Act emphasizes the need for a balanced committee and for a convenor to advise the
agency on whether the issues under consideration are appropriate for negotiation. Nevertheless,
agencies should be aware that these concerns have been raised and be conscious of avoiding them.
C. Current Status of Negotiated Rulemaking and Alternative Consultation Procedures
Criticisms about the efficacy and desirability of Reg Neg seem to have dampened much of
the initial enthusiasm for the process—although other factors no doubt contributed as well. In his
article analyzing the reasons for Reg Neg’s decline, Professor Jeffrey Lubbers suggests that
constrained budgets have caused agency decision-makers to balk at the cost of convening a
committee and hiring a facilitator.70 Even if the process were to save costs in other ways, such
savings would be deferred to future fiscal years. Real and perceived challenges in the FACA
62

Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 9 N.Y.U. ENVIRO. L.J.
60, 62 (2000); Laura I. Langbein & Cornelius M. Kerwin, Regulatory Negotiation versus Conventional Rulemaking:
Claims, Counterclaims, and Empirical Evidence, 10 J. PUB. ADMIN. RES. 599, 600 (2000).
63
Coglianese, supra note 60, at 430.
64
Id. at 431. Specifically, 11% of the total 101 negotiated rulemaking participants were EPA staff and 25% were
state and local officials. By contrast, no EPA staff were interviewed in the sample of traditional rulemaking
participants; three of the total 51 in this group were state or local officials.
65
Id.
66
William Funk, Bargaining Toward the New Millennium: Regulatory Negotiation and the Subversion of the Public
Interest, 46 DUKE L.J. 1351, 1375 (1997).
67
Id. at 1375–76.
68
Id. at 1384.
69
Susan Rose-Ackerman, Consensus versus Incentives: A Skeptical Look at Regulatory Negotiation, 43 Duke L.J.
1206, 1211 (1994).
70
Jeffrey S. Lubbers, Achieving Policymaking Consensus: The (Unfortunate) Waning of Negotiated Rulemaking, 49
TEX. L. REV. 987, 997 (2008).

11

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committee chartering process further dissuaded agencies from engaging in negotiated
rulemaking.71
Whatever the precise combination of reasons, agency reliance on Reg Neg has clearly
declined. Lubbers’s survey of trends in negotiated rulemaking shows that between 1991 and 1996,
agencies formed 63 negotiated rulemaking committees.72 Only 22 were formed between 2000 and
2007—a significant drop-off.73 A more recent study by Professors Peter Schuck and Steven
Kochevar found that even fewer Reg Negs were undertaken between 2007 and 2013 than in the
2000 and 2007 period.74 Notably, 85% of these were statutorily mandated.75
To get a sense of how this trend has played out since the period studied by Schuck and
Kochevar, we undertook our own survey of Reg Negs76 initiated between April 29, 2013 and May
31, 2017. The results reveal that a total of 23 such committees had been formed. This represents
a bump up from the 2007 to 2013 period, much closer to the number formed between 2000 to
2007. Of these, 11 were mandated by statute—just under 50% of the total. Another 10 had been
undertaken voluntarily by the Department of Energy.77 The final two Reg Negs were voluntary
initiatives of the Department of Transportation. A table listing each of the notices, along with
citations and other details, may be found in the Appendix.
To better understand the reasons behind this decline in the use of negotiated rulemaking—
and identify what other forms of stakeholder consultation agencies have used—this report draws
on case studies and unstructured interviews with agency officials, facilitators, and other experts.78
This research aims to better identify what contexts are attractive candidates for Reg Neg, and when
less structured or costly collaborative or consultative efforts could be useful. One theme carrying
through this analysis is the importance of defining an agency’s goals in the initial instance (before
deciding to use Reg Neg or some alternative approach). When successfully achieving these goals
may require exchange and deliberation short of consensus, alternatives to Reg Neg may be most
appropriate.

71

Id. at 1001.
Id.
73
Id. A recent ACUS report on FACA similarly bears out this decline. Reeve T. Bull, The Federal Advisory
Committee Act: Issues and Proposed Reforms, (Sept. 12, 2011), 52 and Appendix A, available at
https://www.acus.gov/sites/default/files/documents/COCG-Reeve-Bull-Draft-FACA-Report-9-12-11.pdf.
74
Peter H. Schuck & Steven Kochevar, Reg Neg Redux: The Career of a Procedural Reform, 15 THEORETICAL
INQUIRIES IN LAW 417, 439 (2014).
75
Id.
76
We used the same search terms as prior studies, “negotiated rulemaking committee” or “negotiated rulemaking
advisory committee” to pull all relevant notices during the search period. We then reviewed them to exclude those
that were not notices of intent to form new negotiated rulemaking committees. Unlike the previous studies, the we
used the Federal Register database on LexisAdvance rather than Westlaw because it was readily available.
77
Each of these negotiated rulemaking committees were part of the Department’s Appliance Standards and
Rulemaking Federal Advisory Committee (ASRAC), discussed infra Section V.
78
Interviews were conducted off the record, and as such this report does not quote or refer directly to those
conversations.
72

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III. Negotiated Rulemaking in Context
To determine when Reg Neg is most appropriate, it is necessary to assess the process in
comparison with other methods agencies might use to develop policy—particularly in instances
where stakeholder input is desirable or required. As discussed above, Reg Neg originated at a time
when ADR techniques first became widespread during the 1970s and 80s. Techniques such as
arbitration and mediation originated in an effort to reduce the financial expense, delay, and damage
to parties’ relationships that often resulted from litigation. Negotiated rulemaking represented a
novel effort to bring such tools to the forefront of decision-making, with the intention of managing
anticipated conflict early on.
This period did not mark the end of efforts to experiment with robust stakeholder
engagement in the early stages of government decision- or policy-making. Over the subsequent
decades, a variety of techniques and processes have been deployed that are increasingly tailored
to address different agency goals, financial and resource constraints, and other concerns. While
engagement methods that are procedurally less intensive do much to reduce cost, they also may
not net the same benefits—including cross-pollination of ideas and stakeholder buy-in—as a more
structured process like Reg Neg. As such, practitioners have sought to identify forms of
engagement that capture the benefits of dialogue, which “can result in deeper and more practical
insights . . . than if the interested parties acted individually,”79 while minimizing procedural
burdens.
A fully detailed overview of these approaches is beyond the scope of this report. Indeed,
many agency officials, academics, and other experts have published a number of resources that
analyze, in greater depth, the spectrum of collaboration and engagement options that are available.
Rather, here we discuss public consultation and collaboration options with the goal of placing Reg
Neg in context. We hope that this context will support agency staff as they work to gauge what
kinds of processes will achieve their goals and enable them to make the most of their investment
of time and resources. With this caveat, the next section will proceed to analyze the considerations
that play a role in whether Reg Neg is the optimal engagement vehicle in a particular set of
circumstances.
A. Spectrum of Stakeholder Engagement Options
For the purposes of situating Reg Neg in the context of other outreach activities agencies
might undertake, four levels or categories of agency-stakeholder engagement in policymaking may
prove illustrative.80 Each level of engagement is characterized by different tools and strategies, as
well as different outcomes an agency seeks to accomplish. It is also worth noting that whatever
79

ENVIRONMENTAL PROTECTION AGENCY, BETTER DECISIONS THROUGH CONSULTATION AND COLLABORATION 1
(2008), available for download at https://www.epa.gov/international-cooperation/better-decisions-throughconsultation-and-collaboration (hereinafter, Better Decisions).
80
This report uses an original, simplified four-category model to help readers easily navigate the vast range of
methods by which agencies might engage with stakeholders. Other agency experts and scholars have drawn the
lines between categories of stakeholder engagement somewhat differently, though all analyses aim to clearly
distinguish stakeholder engagement options based on the varying amount of information exchange, capacity for
consensus-building, and level of effort required by participants. For more, see, e.g., Id. at 6 and Spectrum of
Collaborative Processes, ADR.GOV, https://www.adr.gov/pdf/spectrum_6_23_16_clean.pdf.

13

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engagement strategies an agency uses will require buy-in from agency leadership. Lack of support
from leadership will likely inhibit successful execution of a process and reduce the agency’s return
on its investment in stakeholder engagement.

Information
Dissemination

•One-way flow of information from the agency to the
public.
•Includes press releases, Federal Register notices,
government websites.

Low
Engagement

•Basic two-way exchange between the agency and
public.
•Includes information exchange, notice-and-comment
during informal rulemaking, public hearings, and
town halls.

Moderate
Engagement

•Semi-structured, group engagement between the
agency and public.
•Includes workings groups, advisory boards, and
shuttle diplomacy resulting in non-binding (and
often non-consensus) recommendations.

High
Engagement

•Collaborative group engagement between the agency
and public.
•Includes negotiated rulemaking, collaborative
planning, and partnerships that involve final
outcomes often based on consensus.

Figure 1: Levels of Agency-Stakeholder Engagement
The first level is agency information dissemination or one-way communication to the
public, where there is no collaboration or engagement because information does not flow from the
public back to the agency. Information dissemination primarily deals with public outreach about
agency activities, services, or regulatory requirements. Delivery mechanisms include press
releases, fact sheets, Federal Register notices, videos, government websites, and other media. The
anticipated outcome is not that the agency directly receives input, but that stakeholders and
members of the public at large are informed about the agency’s activities and policies.
A second level might be termed low engagement, where basic two-way exchange exists
between the agency and the public.81 Such efforts might also be deemed “consultation,” denoting
that agencies gather stakeholder feedback but have not yet reached the level of collaborating with
stakeholders to produce advice, recommendations, or agreements.82 Low engagement activities
include workshops, listening sessions, public hearings, or town halls; the notice-and-comment
period of informal rulemaking may also be considered a form of low engagement. As described
For a concise summary of agency goals, processes, and other details encompassed in what is here called “low
engagement,” see Spectrum of Collaborative Processes, supra note 80, which refers to these as “inquiry” and
“information exchange.”
82
Better Decisions, supra note 77, at 6. FACA should generally not apply to such engagement efforts, as the
participants are providing individual information to the agency rather than group advice. Id. at 9.
81

14

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by the Department of Justice’s ADR Working group, agencies may use these processes to solicit
feedback for the purposes of “enhanc[ing] the [agency’s] organizational decision-making or
effectiveness” or ask stakeholders to “provid[e] and exchang[e] data, opinions, or options” on
specific issues.83
A third level, moderate engagement, encompasses semi-structured, formalized engagement
between stakeholders and an agency over time. In comparison to communication and low
engagement methods, moderate (to high) engagement efforts contemplate a smaller number of
stakeholders who can collaborate on policy matters.84 Examples of moderate engagement include
working groups, advisory boards, and policy dialogues. These typically result in non-binding
recommendations.
EPA’s iterative stakeholder negotiation model, which some have referred to as “shuttle
diplomacy,” may straddle the line between low and moderate engagement.85 After preparing an
initial draft of a proposed rule, agency staff use low engagement activities such as listening
sessions and one-on-one meetings with stakeholders to solicit feedback and revise the draft
accordingly. Although it does sacrifice the cross-pollination of ideas among participants that is a
significant benefit of negotiated rulemaking, some of those inter-participant reactions can still be
captured at listening sessions, technical workshops, and similar fora.86
Indeed, some scholars have identified a set of low to moderate engagement processes—
including listening sessions, technical workshops, and shuttle diplomacy—as “Reg Neg Lite,” a
catch-all term describing mechanisms designed to capture the benefits of group exchange (though
not consensus) at lower procedural and financial cost. It is also worth noting that even in moderate
engagement processes, robust interaction between high-level administrators from the agency and
stakeholders is essential to demonstrate the agency’s commitment to the process and guarantee
stakeholder buy-in.
“Reg Neg Lite” is, as a legal matter, indistinguishable from informal stakeholder outreach,
except that the agency must exercise greater caution to avoid moving from “individual input” to
“group advice” and thereby triggering FACA. Examining the various processes often referred to
as Reg Neg Lite, one could define it as generally including the following elements: (a) the goal is
to obtain detailed information from or determine the policy preferences of certain stakeholder
groups but not to achieve group consensus on a draft rule; (b) the assemblage of stakeholders is
generally not organized as an advisory committee subject to FACA, as the goal is not to provide
83

Spectrum of Collaborative Processes, supra note 80.
Better Decisions, supra note 79, at 8.
85
Id. at 55. The term “shuttle diplomacy” is not intended to draw a bright line distinction between EPA practice and
the efforts many agencies routinely undertake in the course of developing ANPRMs, etc. Rather, this term simply
denotes how EPA thinks of these various stakeholder engagement opportunities in a unified way, undertaken
iteratively and with a particular set of goals in mind throughout.
86
A few notes on cost savings may be worthwhile here. In both shuttle diplomacy and the somewhat more
structured technical workshops and listening sessions deployed by EPA, cost savings in comparison to negotiated
rulemaking are primarily realized as reduced pressure on agency resources to charter a FACA committee and
convene a representative group of stakeholders. There may also be financial savings on the salary of a facilitator or
travel expenses, though, depending on the nature of the engagement, these costs may be still present in listening
sessions and technical workshops.
84

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group advice but rather to flesh out the views of the various stakeholders; and (c) the charge of the
stakeholder group is somewhat more loosely defined than it would be under a negotiated
rulemaking or in the case of an advisory committee.
Finally, high engagement efforts include Reg Neg, collaborative planning,87 and publicprivate partnerships.88 Here, significant collaboration among parties is intended to lead to a
concrete, mutually agreed upon, final outcome. High engagement may additionally encompass
some form of stakeholder action, such as implementation of voluntary pollution reduction
programs.89 An added benefit of deep, face-to-face engagement is that personal connections
establish trust. Because stakeholder engagement is not a one-off activity, use of Reg Neg and
other high engagement efforts may also help build trust that enables more functional working
relationships among agencies and repeat players in the rulemaking process. Though it stands to
reason that increasing trust should reduce the incidence of litigation and other conflicts over time,
such outcomes are likely impossible to measure.
B. Choosing between Negotiated Rulemaking and Other Engagement Options
There are many issues—such as the particular goals of a given stakeholder engagement
exercise or the resources an agency is able to invest—that are at play in deciding which kind of
process would be best for an agency to deploy in a given policymaking context. Some scholars
and practitioners, particularly those focused on web-enabled public participation in policymaking,
have framed engagement as a design problem.90 A focus on design, or structure, is useful in that
it brings to the surface that public engagement is a multi-faceted, long-term undertaking done with
a particular set of outcomes in mind.91
It is worth noting that agency staff are not limited to using just one method of stakeholder
engagement. As one moves forward in the policy development process, kinds of engagement that
were not appropriate at early stages may become more beneficial. Throughout the discussion
87

One example of collaborative planning involved the development of a structured, repeatable multi-disciplinary
analysis of IT projects, plans, and infrastructure overseen by the Office of Management and Budget (OMB) in
connection with numerous stakeholder agencies. As with other collaborative engagement mechanisms,
collaborative planning intends to draw on the benefits of stakeholder buy-in and trust-based, working relationships
that result in more well-informed, streamlined outcomes than would be possible in more ad hoc engagement
processes. Collaborative Planning Methodology, PHASEONE, http://www.pocg.com/collaborative-planningmethodology/.
88
Public-private partnerships can be defined as long-term contracts between government and private entities, where
private entities “participat[e] in the delivery and financing” of public projects. P3 Defined, FED. HIGHWAY ADMIN.,
https://www.fhwa.dot.gov/ipd/p3/defined/
89
Better Decisions, supra note 79, at 6. It is worth noting that this handbook distinguishes agreement/consensusbuilding mechanisms such as negotiated rulemaking from kinds of engagement designed to lead to stakeholder
action. In light of this report’s focus on negotiated rulemaking, we do not elaborate on that distinction here.
90
Scholars (Archon Fung, Putting the Public Back into Governance: The Challenges of Citizen Participation and its
Future, 75 PUB. ADMIN. REV 513 (2015)), governments (Designing a Public Engagement & Decision Making
Program, FED. HIGHWAY ADMIN., http://contextsensitivesolutions.org/content/topics/process/involvingstakeholders/public-engagement/), and civil society organizations (Becky Michelson, Digital Citizenship and
Engagement: Guides, Playbooks, and Resources, https://medium.com/engagement-lab-emerson-college/digitalcitizenship-and-engagement-guides-playbooks-and-resources-1715302c17de#.a2chbnsn9) have recently focused on
the design of stakeholder engagement and public participation processes in government decision-making.
91
Lisa Blomgren Binhgam, et al., The New Governance: Practices and Processes for Stakeholder and Citizen
Participation in the Work of Government, 65 PUBLIC ADMIN. REV. 547, 555 (2005).

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below, the focus remains on Reg Neg, although other processes are discussed in comparison to
demonstrate the factors that cut for or against its use.
The list of factors examined below are intended to help agencies decide when using Reg
Neg, compared to other stakeholder engagement options might be most appropriate. The factors
have been drawn from the interviews with practitioners conducted as part of this study, in addition
to a review of the literature. This list intends to highlight the most significant matters agency
decision-makers must attend to. Ultimately, the guiding principle is that agency decision-makers
must be thoughtful in their choice of process and endeavor to identify whether a particular process
will meet the needs of the agency and stakeholders alike.
1. Stage in Policy Development
The early stages of policy development—when an agency is still gathering necessary facts
and data, identifying stakeholder groups that could be affected, or choosing among the various
alternative policy positions it may adopt—lend themselves to communication or low engagement
efforts. By informing the public of the issues and goals an agency has under consideration, an
agency promotes transparency and allows for early input of potentially valuable information.
Even at these early stages, however, agencies should anticipate how Reg Neg or other
moderate to high engagement efforts may advance the latter stages of policy development. In
particular, agencies can begin to identify the range of industry, public interest, and other
stakeholders who could participate later on in technical workshops, listening sessions, and other
forums. Indeed, EPA has relied on mechanisms like technical workshops frequently, often as
procedurally simpler alternatives to Reg Neg.92 Still, as the agency itself notes, different processes
lead to different outcomes.93 It is therefore essential for an agency to continuously evaluate what
processes will meet its goals at any given time.
It is once the agency has fully fleshed out its policy aims—or at least narrowed these down
to a few concrete options—and has gathered existing data and other materials on which it intends
to rely, that it may best consider using Reg Neg to develop a consensus-based NPRM.
Additionally, the immediacy with which an agency intends to act may influence the level of
investment potential participants are willing to make. Particularly for those participants who have
not previously engaged in Reg Neg, the knowledge that an NPRM is likely to issue with or without
intensive stakeholder engagement is likely to incentivize participants to come—and stay—at the
table.
2. Goals and Anticipated Outcomes of the Process
The nature of an agency’s goals may be the most important determinant of the kind of
public engagement to undertake. At the most basic level, every agency’s goals will be shaped by
its mandate, as specified by its founding statute and other legislation that directs the agency to take
92

For example, the EPA explains its use of technical workshops in the course of studying hydraulic fracturing in a
report titled 2013 Technical Workshop Series on Hydraulic Fracturing: How Workshops Informed the EPA Study,
available at https://www.epa.gov/sites/production/files/201312/documents/how_technical_workshops_informed_the_epa_study.pdf.
93
The EPA’s Better Decisions handbook is devoted to comprehensively defining and comparing the structures,
methods, and outcomes of a range of engagement mechanisms. Better Decisions, supra note 79.

17

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certain action.94 Within these greater statutory boundaries, there are many goals an agency might
pursue. As discussed above, these goals could range from communication that is designed to
support public awareness of agency activities all the way to Reg Neg or collaborative planning,
which involve iterative dialogue toward agreement between the agency and stakeholders. When
an agency seeks in-depth feedback on a proposal, Reg Neg is one out of several options in the
moderate to high engagement categories from which it might choose.
Some agencies have opted to use technical workshops and other processes rather than Reg
Neg, citing not only cost but the fact that full consensus (full consensus here meaning unanimity
on all issues) has been difficult to achieve. Since Reg Neg was originally developed, however,
there has been significant debate about whether the process must result in full consensus to be
considered successful. Reaching consensus on several issues, even if a few remain short of
agreement, often places the proposal in a better position than it would have been otherwise.95 It is
not uncommon for negotiations to end with some unresolved problems—and it is impossible to
know at the outset how a negotiation will play out. This need not detract from the success of a
procedure. Rather, the committee should carefully consider at the outset what level of agreement
it will consider successful.
When consensus, however defined, is the goal, it signals that participants must invest
heavily in the process. This can cut against the process if parties are hesitant to commit to a single
negotiated agreement that binds everyone. Hosting dialogues through technical workshops could
be a preferable alternative in such cases, particularly where parties have not previously engaged in
collaborative decision-making. Furthermore, an agency could explore during workshops and
similar engagements whether Reg Neg would be worthwhile, before resources have been invested
in the process.
On the other hand, the level of commitment required to reach consensus can incentivize
participants to engage. While some have argued that contentious issues result in gridlock, which
would stymie a consensus-oriented process, facilitators have argued that the goal of consensus can
actually help address such gridlock. Rather than having “disparate groups [advocating for their
own views], you have one group with a common problem [to solve].”96 Indeed, Reg Neg
inherently contemplates a neutral facilitator supporting the process, which may be particularly
beneficial in contentious cases where parties could not otherwise coordinate agreement
themselves.
Ultimately, agencies should decide at the outset whether consensus on all or some issues
is the goal of a Reg Neg. Agencies should not give lip-service to consensus while seeing something
short of consensus as “good enough.” If consensus is deemed necessary, the agency will have to
94

This raises additional challenges in interagency policymaking contexts. Agencies such as EPA and the Army
Corps of Engineers must often work together, but they have different mandates. Communicating these statutory
boundaries to stakeholders—whether in the course of negotiated rulemaking or another engagement process—will
clarify what is on the table for discussion.
95
Indeed, a committee has the power to decide how it defines consensus. That may mean unanimity on all issues,
some issues, or none at all—partial consensus on all or part of a draft NPRM may be chosen as the most workable
option. See the discussion infra Section IV.
96
Administrative Law & Regulation: What Next for Negotiated Rulemaking?, Panel Transcript, National Lawyers
Convention, FED. SOC. (Nov. 15, 2001), available for download at http://www.fed-soc.org/publications/detail/whatnext-for-negotiated-rulemaking-transcript (hereinafter, Negotiated Rulemaking Panel).

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frame issues appropriately and rely on a facilitator to guide parties toward agreement. If there is
uncertainty as to whether participants can agree on a subset of issues being negotiated, the
committee should prioritize transparency about these concerns. If these ground rules are not
established at the outset, the agency and various participants may very well have divergent
expectations. When these expectations are violated, the process is likely to break down. Agencies
should not jeopardize their investment in Reg Neg by failing to establish goals and define
success—whether that is full unanimity or only agreement on a subset of issues—from the
beginning.
The foregoing considerations are also relevant to congressional decisions about whether
and when to mandate that an agency use Reg Neg. Where issues have been contentious, the
procedural protections of Reg Neg, and particularly the benefits of having a neutral facilitator,
could help address them. Because the choice of process is no longer up to the agency, at least one
point of contention has been removed. And, Congress’s mandate will make it clear to participants
that a rule will be issued. However, as discussed in more detail below, Congress should also be
aware that not all subjects are equally suited to negotiated rulemaking.
3. Issues for Discussion
The next factor an agency must consider when determining the optimal mechanism for
public engagement is: what sorts of issues does it seek public input on? Here we focus on what is
required to properly select and frame issues for Reg Neg.
One reason it is essential to adequately select and frame issues is to ensure that the agency
can accurately identify the range of stakeholders who should participate in the negotiation. The
Negotiated Rulemaking Act lists several factors for agencies to consider when deciding whether
Reg Neg is appropriate. One factor explicitly directs agency decision-makers to consider whether
“there are a limited number of identifiable interests that will be significantly affected by the rule.”97
This factor was originally intended to underscore that too many parties would make the process
unmanageable. However, this consideration also reinforces that the choice of participants is
closely tied to the issues under consideration. If issues are not prepared thoughtfully in advance
of Reg Neg, they could be framed in such a way that they appeal to more, or different, participants
than the agency envisioned.
Further, for participants to negotiate effectively, the issues must be clearly defined. Vague
questions are not suited to the kind of precise argumentation, well-informed by the best available
evidence, that is needed for parties to reach consensus on a draft proposal. Clearly defining the
issues becomes even more important when the questions under consideration are value-laden.
Parties cannot bargain over or reach agreement on values, such as whether protecting waterways
is more important than promoting business growth. However, parties can agree on choices or
positions underlying their values—such as which pollution standards to implement to protect a
waterway, or the period of time over which such standards will be implemented. 98 A skilled
convenor can help remind participants that the purpose of the negotiation is not to determine which
97

The Negotiated Rulemaking Act of 1996, Pub. L. 104-320 (amending Pub. L. 101-648 and Pub. L. 102-354), §
563.
98
Michelle Maiese, Interests, Positions, Needs, and Values, BEYOND INTRACTABILITY,
http://www.beyondintractability.org/essay/interests.

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value will “win,” but how to best achieve balance among co-existing values by choosing from a
set of policy options to achieve a particular regulatory goal.
If the issues are well-defined, but the underlying facts and data are uncertain or conflicting,
Reg Neg can be used to clarify information. Especially where such data is needed to conduct
benefit-cost analysis, Reg Neg may enable the agency to gather information it would otherwise be
unable to access. For example, in its negotiated rulemakings to set energy efficiency standards,
the Department of Energy has used consultants to gather data from members of industry and
present the information in aggregate.99
One final set of questions that fall under the umbrella of framing issues for discussion is
whether there are positions an agency is not willing to negotiate on. If a Reg Neg gets close to
consensus but is then halted because the agreement was deviating from an agency’s preferred
outcome, participants’ investment in the process and trust in the agency may be significantly
damaged. Clearly defining what is and is not up for negotiation—or, what the acceptable
alternatives would look like for an agency—is essential at the outset of a negotiation. In a similar
vein, the agency should be sensitive to issues that, without consensus, will block the negotiation.
It may largely fall to the convenor/facilitator to determine such fault lines early in the process of
framing issues and identifying participants.
The questions involved in properly selecting and framing issues for Reg Neg are also
essential for Congress to consider when mandating that an agency use the process. Where issues
are nebulous or involve a great number of stakeholders, it is likely that the process will not resolve
the most difficult aspects of a rule. If the agency is left to resolve the thorniest questions, the
process may not have been worth the cost, because it is with respect to the most difficult questions
that Reg Neg is most useful. One way to address this could be for agencies or experienced
facilitators to offer technical assistance on legislation proposing to mandate negotiated rulemaking.
4. Other Constraints to Consider
Finally, even where the stage in the policymaking process, goals, and issues seem
appropriate for Reg Neg, resource and other constraints may caution against use of the process.
When assessing the cost of using Reg Neg, however, agency decision-makers should balance that
cost against the benefits the process can bring (particularly that no other process is as well-suited
to develop broad stakeholder consensus) and the cost that will necessarily be incurred by using
another process.100
Cost. The major costs involved in conducting Reg Neg involve hiring a facilitator, unless
the agency has facilitators on staff, and, in some cases, another expert who consults on technical
questions for the committee. As mentioned above, consultants can assist a committee in making
factual determinations, but this presents an added cost. Reports for each federal advisory
committee disclose the amount paid to experts, facilitators, and others who assist the advisory
E.g., ASRAC Full Committee Meeting Minutes Summary, DEP’T OF ENERGY. (April 28, 2016), available for
download at https://www.regulations.gov/document?D=EERE-2013-BT-NOC-0005-0080.
100
In other words, the agency should determine the marginal cost of Reg Neg (i.e., [Cost of Reg Neg] – [Cost of the
Alternative the Agency Would Otherwise Select]). The question, then, is whether investing in additional resources
would be worthwhile to capture the additional benefits negotiated rulemaking would bring.
99

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process. The cost depends on the scope of the issues being analyzed; for an entire Reg Neg, the
amount paid to experts is typically $10,000 to $15,000 for a relatively bounded issue.101 Another
set of cost concerns revolves around whether interested groups who should be at the table will be
unable to participate due to the cost of travel, limited staff availability, etc. Video conferencing
can mitigate this barrier, though in-person attendance is ideal to promote consensus-building.
Time. Another set of considerations that may caution against the use of negotiated
rulemaking involves the existence of a deadline for issuing a rule, whether imposed internally, by
statute, or by a court. Reg Neg has been criticized for taking longer, in a number of cases, than
traditional rulemaking. At least part of this delay (usually a minimum of six months) can be
attributed to the need to form an advisory committee—which is not required in typical informal
rulemaking. Gridlock in the negotiation process could introduce further delay. As such, under
these circumstances it may be preferable to use listening sessions or workshops to gather
information from stakeholders and foster dialogue, where possible, while proceeding with the
agency’s usual informal rulemaking schedule.
On the other hand, cheaper, less structured alternatives to Reg Neg like listening sessions
and technical workshops could, under certain circumstances, become subject to FACA, which
would defeat the purpose of avoiding Reg Neg out of concern for delay. EPA notes that FACA is
not necessarily “limited to situations in which the Agency looks for consensus recommendations
or advice. Rather, it is the group dynamic that can make an information exchange meeting subject
to a legal challenge.”102 As such, agency staff must “exercise caution to manage the meeting
carefully so that discussion does not move into group advice that would be subject to FACA.”103
External legal requirements. Two final constraints—which have halted Reg Negs in the
past—are worth noting in this section. The first is that agencies should be mindful of
circumstances where changes to other rules could impact the negotiation at hand. For instance, a
Reg Neg that refers to external energy efficiency standards or the calculation of payments to
doctors under Medicare104 could fail to reach agreement if those outside rules are subject to
planned review in the near future. Secondly, agencies should be aware of unresolved legal
questions, or differing interpretations of a legal provision, that would affect the issues under
negotiation. If parties do not agree on the nature of some legal rights and obligations, negotiation
likely will be unable to settle those disagreements.
Ultimately, if there are serious concerns on any of the foregoing possible constraints, Reg
Neg may not be the optimal choice for stakeholder engagement. However, if other engagement
methods present similar problems, or if Reg Neg is likely to present benefits such as consensus
that cannot otherwise be achieved, the process should be conducted with careful planning.

101

E.g., Committee Cost, Appliance Standards and Rulemaking Federal Advisory Committee, FACA DATABASE,
http://www.facadatabase.gov/committee/committee-cost.aspx?t=c&cid=2445&aid=42. As always, these costs are
highly variable depending on the nature of the Reg Neg. For the same reason we do not attempt here to quantify the
total costs of Reg Negs in general.
102
Better Decisions, supra note 79, at 9.
103
Id. at 9.
104
Coglianese, supra note 7, 1268 (discussion in footnote 75).

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IV. Case Studies
We now review a sample of Reg Neg case studies, some of which reached consensus, some
of which did not reach consensus but were considered successful by those involved, and some that
failed to reach a successful outcome as defined by the negotiation committee. In describing and
analyzing these cases, we hope to illustrate the foregoing discussion of factors that influence the
success of Reg Neg.
A. Full Consensus: Coast Guard’s Oil Spill Vessel Response Plans Rulemaking
Shortly after the Exxon Valdez oil spill, Congress passed the Oil Pollution Act of 1990
(OPA).
The Act required oil tankers to prepare and file oil spill clean-up plans by February 18,
1993; tankers that failed to do so would no longer be able to “handle, store, or transport oil” without
authorization from the President.106 Directed by Congress to implement the Act, the Coast Guard
quickly moved to set standards so that affected entities would have adequate time to develop plans
in compliance with the statute.
105

After issuing its notice of proposed rulemaking in August 1991,107 the Coast Guard held a
public workshop on November 14, 1991.108 Based on feedback from the roughly 200 attendees,
the agency issued a notice of intent to form a negotiated rulemaking committee on November 18,
1991. The committee was established on January 20, 1992 and, after only two and a half months
of meetings, reached consensus on a draft notice of proposed rulemaking.109 The rule went into
effect seven months later.110
The driving forces behind the committee’s ability to reach full consensus—and at such
speed—were the immediacy of the timeline and clarity of requirements imposed by the OPA. The
only questions left on the table were how to accomplish what Congress had mandated.
Additionally, a discrete, readily identifiable set of stakeholders—many of whom already interacted
with the Coast Guard on a repeat basis—were likely to be affected and could easily be brought
into the negotiation. Finally, these stakeholders had a concrete incentive to work quickly toward
negotiated agreement. In the absence of clear guidelines issued by the Coast Guard well in advance
of the February 18, 1993 deadline, oil tanker operators would have been forced to seek potentially
uncertain Presidential authorization to continue shipping.
B. Partial Consensus: EPA’s Asbestos in Schools Rulemaking
In 1986, Congress passed the Asbestos Hazard Emergency Response Act (AHERA) 111 in
response to heightened concern, and confusion, about the risks posed by asbestos in schools.
105

Harter, supra note 56, at 43.
Id. 33 U.S.C. S 1321(j)(5)(F) & (G).
107
Harter, supra note 56, at 43.
108
Id.
109
Id.
110
While a number of additional steps took place—such as the issuance of an interim final rule and a final rule much
later—Harter rightly notes that the agency quickly achieved its primary goal of issuing clear, standard guidelines
such that regulated entities could proceed with certainty and rapidly develop oil spill clean-up plans before the
statutory deadline.
111
Toxic Substances Control Act Subchapter II: Asbestos Hazard Emergency Response (15 U.S.C. § 2641-2656).
106

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Although parents and educators were by this time well aware that asbestos posed a significant
health risk, and Congress had previously addressed the matter through the Asbestos School Hazard
Abatement Act (ASHAA) of 1984, there remained continued uncertainty about whether removal
was the best method for asbestos abatement.112 Additionally, by this time there was growing
awareness that contractors often lacked the necessary guidelines to identify asbestos and remove
it properly without increasing the amount of asbestos dust to which contractors, students, and
educators would be exposed.113
AHERA directed EPA to promulgate rules defining how asbestos-containing materials
should be identified in school buildings, defining the appropriate response of schools when such
materials are damaged (e.g., could release asbestos dust into the air), setting standards for the
transportation and disposal of asbestos-containing waste, and requiring local educational agencies
to develop asbestos management plans.114 AHERA required EPA to issue a notice of proposed
rulemaking covering these directives by April 20, 1987—180 days after the statute’s enactment.115
Should the agency fail to do so, the Act required local educational agencies to nevertheless carry
out the Act’s regulatory directives in accordance with EPA’s current guidance.116
EPA elected to use Reg Neg, and convened a committee comprised of “representatives of
education groups, school service employees, asbestos product manufacturers, asbestos abatement
workers, contractors, designers, industrial hygienists, school districts, public interest groups,
States, and EPA.”117 Meeting for eleven days between February and April 1987, 20 out of 24 total
members agreed on the content of the proposed rule issued April 30, 1987.118 As such, EPA’s
effort to reach agreement on a complex, far-ranging set of rules in a compressed timeline was
largely successful.
Some members of the committee expressed concerns—some of which related to the rule’s
substance and some of which related to the conduct of the negotiation. Substantively, several
experts disagreed that visual inspection was sufficient to accurately identify asbestos risk, arguing
air sampling was instead the only reliable method.119 Additionally, the continued emphasis on
removal, rather than other methods of asbestos abatement, failed to account for the fact that
asbestos removal often increased exposure above pre-removal levels.120 As to the conduct of the
negotiation, some participants felt the composition of the group had over-included some groups
and under-included others.121

112

JACQUELINE KARN CORN, ENVIRONMENTAL PUBLIC HEALTH POLICY FOR ASBESTOS IN SCHOOLS: UNINTENDED
CONSEQUENCES, 80–82 (1999).
113
Id.
114
Toxic Substances Control Act Subchapter II: Asbestos Hazard Emergency Response (15 U.S.C. § 2641-2656).
115
Negotiated Rulemaking at the Environmental Protection Agency, in ESD REGULATORY PROCEDURES MANUAL,
ENVIRO. PROTECTION AGENCY (Nov. 18, 1994), available at
https://yosemite.epa.gov/oaqps/rdms.nsf/591caf4ab155e210852566de00539f57/24159174b32278f085256707005b8
dc9!OpenDocument (hereinafter, Negotiated Rulemaking at EPA).
116
Toxic Substances Control Act Subchapter II: Asbestos Hazard Emergency Response (15 U.S.C. § 2641-2656).
117
Negotiated Rulemaking at EPA, supra note 115.
118
CORN, supra note 112, at 84.
119
Id. at 83–84.
120
Id. at 84.
121
Freeman & Langbein, supra note 62, at 83.

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Nevertheless, subsequent interviews with participants in the asbestos negotiation reported
satisfaction with the process. Of the 16 participants interviewed by Kerwin and Langbein, 91%
agreed that over three-quarters of issues were resolved through negotiation or determined by the
presentation of data and analysis.122 Educators involved in the process viewed it so favorably that
they urged senators to include a negotiated rulemaking mandate for the Department of Education’s
rulemaking on compensatory-education programs.123 Notably, this group did not take a strict,
unanimous view of consensus at the outset of the negotiation.124 This flexible approach may have
helped the negotiation proceed smoothly, despite the concerns mentioned above.
Additionally, this flexibility may have helped mitigate the restrictions imposed by the tight
timeline mandated by Congress. Indeed, according to Kerwin and Langbein, 27% of respondents
involved in the negotiation felt they had too little time to draft the proposal.125 Had a stricter view
of consensus been taken, the participants would likely not have been able to reach agreement in
the timeline required by AHERA. If EPA had proceeded without a consensus-based proposal,
stakeholder groups would certainly not have felt as positively about the process, and may have had
significantly greater cause to bring legal challenges to the rule.126
C. Failure to Reach Consensus: NPS Cape Hatteras Off-Road Vehicles Rulemaking
In 2005, the National Park Service (NPS) began exploring the feasibility of using Reg Neg
to develop a proposed rule for the use of off-road vehicles (ORV)127 at the Cape Hatteras National
Seashore (CAHA).128 Executive Order 11,644 directs the NPS to use informal rulemaking to
establish acceptable routes and other requirements for the use of off-road vehicles on all public
lands the agency oversees.129 Due to significant disagreement among the stakeholders who would
be affected by the regulation, NPS had not yet successfully put an ORV management plan in place
for CAHA.130

122

Id. at 86.
The final bill did not ultimately require the Department of Education to use negotiated rulemaking, but rather
strongly urged its use. Julie A. Miller, E.D. to Try ‘Negotiated Rulemaking’ Process, EDU. WEEK (Feb. 17, 1988).
124
Freeman & Langbein, supra note 62, at 92.
125
Id. at 104.
126
Id. One legal challenge to the asbestos rule was brought, but failed. While this indicates that negotiated
rulemaking does not eliminate legal challenges, it stands to reason in this case that potential challenges were reduced
in scope and number.
127
Environmental Mediation Services/Consensus Building Institute to Conduct Feasibility Study, NAT’L PARK
SERV., March 6, 2005, available for download at https://parkplanning.nps.gov/document.cfm?parkID=358&projectI
D=10641&documentID=11056 (hereinafter, CBI to Conduct Feasibility Study). Off-road vehicles are “any
motorized vehicle designed for or capable of cross-country travel on or immediately over land, water, sand, snow,
ice, marsh, swampland, or other natural terrain,” except motor boats or military and emergency vehicles, and include
“motorcycles, minibikes, trial bikes, snowmobiles, dune-buggies, all-terrain vehicles, and others.” Exec. Order
11,644, 37 Fed. Reg. 2877 (Feb. 9, 1972), 3 C.F.R. 322 (1974), as amended by Exec. Order No. 11,989, 3 C.F.R.
120-21 (1978).
128
CBI to Conduct Feasibility Study, supra note 127.
129
Exec. Order 11,644, 37 Fed. Reg. 2877 (Feb. 9, 1972), 3 C.F.R. 322 (1974), as amended by Exec. Order No.
11989, 3 C.F.R. 120-21 (1978).
130
Negotiated Rulemaking Feasibility Assessment Report, CONSENSUS BUILDING INSTITUTE, April 4, 2005, at ii,
available for download at https://parkplanning.nps.gov/document.cfm?parkID=358&projectID=10641&documentI
D=14670 (hereinafter, Final Feasibility Report).
123

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Though both federal and local actors recognized the need to balance between
environmental concerns and the tourism-based local economy on Cape Hatteras, the parties
struggled to determine what the right balance should be. Since the 1930s, the relationship between
the NPS and locals on the Outer Banks had been contentious.131 Local and state officials largely
opposed federal control of the seashore, and wanted to retain decision-making control over the
socially and economically important land at issue.132 Federal officials, however, had been charged
with a number of overlapping duties related to environmental conservation—including protecting
the habitat of the piping plover, listed as threatened in 1986.
Given this complicated history, NPS hoped that Reg Neg would help manage the conflict
it anticipated would arise in the course of its rulemaking. NPS therefore requested that the U.S.
Institute for Environmental Conflict Resolution conduct a feasibility assessment with
stakeholders—including local businesses, civic organizations, and environmental groups—to
determine whether Reg Neg would likely “be successful in resolving issues around CAHA ORV
management and regulations.”133
Based on the interviews the Institute’s mediators conducted with stakeholders, the final
feasibility report identified several themes. Unsurprisingly, the two main, competing perspectives
that arose were 1) concerns that ORV restrictions would burden residents’ and tourists’ use of the
beaches and, in the latter case, harm local businesses and 2) that use of ORVs would pose a
persistent risk to both protected and unlisted plants and wildlife.134 At the same time, each of the
interviewed stakeholders expressed interest in negotiated rulemaking, and many noted that existing
ad hoc management of ORV use failed to achieve “the certainty and predictability that a
management plan and regulations [would] provide.”135 Long-time residents in particular hoped to
improve the relationship between themselves and NPS—whether through Reg Neg or other means.
The foregoing factors cut both for and against Reg Neg. Taking stock of this, the Institute
nevertheless made a cautious recommendation that NPS proceed with the process, noting that the
process “can yield important benefits even if agreement is not reached, and has a modest chance
of success if [certain] conditions are met.”136 Notably, around this time NPS had received both
petitions for rulemaking and notices of intent to sue from environmental groups on issues related
to the ORV and endangered species management.137 Given this heightened pressure to proceed
with regulation of ORV use in CAHA, and the prospect that Reg Neg offered the highest chance
of success, NPS decided to proceed with the process, establishing the committee in December
2007.138

131

Lavell Merritt, Evaluating a Negotiated Rulemaking Process at Cape Hatteras National Seashore: Toward
Piping Plover and People in One Place, Dissertation (Dec. 2009), at 9–10,
http://oaktrust.library.tamu.edu/bitstream/handle/1969.1/ETD-TAMU-2009-12-7524/MERRITTDISSERTATION.pdf?sequence=3 (hereinafter, Merritt, Evaluating Negotiated Rulemaking at Cape Hatteras).
132
Id. at 10.
133
Final Feasibility Report, supra note 130, at i.
134
Id. at ii.
135
Id.at iii.
136
Id. at iii to iv.
137
Id.at ii.
138
Establishment of Negotiated Rulemaking Advisory Committee for Off-Road Vehicle Management, Cape
Hatteras National Seashore, 72 Fed. Reg. 72,316 (Dec. 20, 2007).

25

June 5, 2017

Ultimately, after just over a year of public meetings, the committee determined that it could
not reach consensus. After the final committee meeting on February 3, 2009, an Integration
Workgroup was formed to consolidate the information and proposals developed in the preceding
year and make recommendations for a consensus plan, if possible, to the full committee.139 Though
the Workgroup struggled to agree on what documents to provide the committee, it ultimately
presented two proposals—Option A and Option B—mapping different possible routes for areas
closed, open, or seasonally open to ORVs.140 Option A largely expressed the preferences of the
local community and business owners, as well as the county government, while Option B reflected
the concerns of environmentalists and stakeholders who privileged pedestrian, rather than
vehicular, access.141
Though both plans had some areas of agreement, the stakeholders representing the
opposing perspectives were unable to propose a consensus agreement, nor was the committee able
to reach agreement in its consideration of the two options.142 Ultimately, the complexity of the
issues involved in striking the right balance between environmental groups, the local community,
and business concerns undermined the committee’s ability to reach consensus. For example, while
all might have agreed that some areas should be protected by seasonal route closures to protect
nesting or mating wildlife, not all stakeholders agreed on the length of these seasons. As a
procedural matter, some committee members viewed Options A and B as packages. Because each
Option necessarily attempted to balance competing interests through various trade-offs,
particularly in the details of which routes and areas would be closed or open at what times, these
members felt that deviating from the two proposals would have subverted the Workgroup’s
deliberations (and, in effect, would have put the committee back in the same position as when it
created the Workgroup).143
In reviewing the outcome of this Reg Neg, it appears the history of conflict among
stakeholders proved fatal to the parties’ ability to reach consensus. By all accounts, the committee
seemed well-balanced, guided by knowledgeable facilitators, and fully aware of the relevant facts
and data—all indicators of what should lead to a successful Reg Neg capable of drafting a
consensus NPRM. Moreover, participants were willing to negotiate and hoped the process would
help repair relationships among federal officials and the local community.
A review of public comments submitted at the committee’s final meeting illuminate some
possible reasons why the committee, despite its strengths, was unable to fully address local
stakeholders concerns. Numerous public commenters criticized the scientific considerations
underlying suggested beach closures, suggesting instead that pedestrian traffic, natural occurrences
including unseasonal heat waves, storms, and waves were just as damaging, if not more so, to
threatened habitats than ORVs.144 To be sure, these comments do not necessarily reflect the views
of the committee, which was equipped with significantly more information and capacity to
Meeting 13 Summary - Cape Hatteras National Seashore Negotiated Rulemaking, NAT’L PARK SERV. (May 18,
2009) 2, https://parkplanning.nps.gov/document.cfm?parkID=358&projectID=10641&documentID=27588
(hereinafter Meeting #13 Summary).
140
Id. at 2–3.
141
Id. at 3.
142
Id. at 5.
143
Id.
144
Id. at 5–7.
139

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June 5, 2017

deliberate. Nevertheless, they demonstrate that many in the local community perceived that
environmental concerns had placed undue emphasis on ORV use in comparison to other factors.
Importantly, however, NPS was directed to regulate ORV use with concern for
environmental impacts, not to regulate the totality of beach activity in light of environmental
concerns. It is unclear how, or whether, NPS could have effectively remedied the pervasive
misunderstanding of the legal landscape, particularly given how values and factual determinations
were interwoven in the local business community’s position. While the inevitability that a rule
will issue typically cuts in favor of Reg Neg, here the decades-long delay NPS faced in achieving
its regulatory mandate may have reduced the urgency parties would feel to come to consensus. In
spite of the negotiation’s ultimate failure, use of Reg Neg was likely one of the most effective
avenues NPS could have pursued. Certainly, this is a case where an agency was struggling to issue
a rule at all.145

V.

Planning for a Successful Negotiated Rulemaking

This report has reviewed the origin, early use, and decline of Reg Neg—most importantly
highlighting the goals the process is meant to achieve and the original factors that proponents
suggested would most likely lead to successful outcomes. Situating Reg Neg in the context of
other stakeholder engagement options that agencies might use, as well as examination of relevant
case studies, further illustrate when and why agencies might elect to undertake the process.
Once an agency has made the decision to undertake Reg Neg—or if Congress has mandated
that the agency use the process—staff should take care in planning for each stage. Indeed, Philip
Harter has expressed the concern that “inattention to detail and taking short-cuts” have reduced
the effectiveness of Reg Neg and negatively affected how the process is perceived.146
This section will examine each of the following stages of a Reg Neg in turn: selecting a
neutral; assembling a committee; conducting the negotiation and finalizing the proposal; and
issuing the NPRM and proceeding with informal rulemaking. It will discuss existing agency
approaches to each of these steps in the process and highlight best practices.
A. Selecting a Neutral
Role of the neutral. When selecting a neutral (convenor and/or facilitator) for a Reg Neg,
the agency should clearly define the scope of his or her responsibilities. As referenced above, the
Negotiated Rulemaking Act refers to a convenor as the neutral responsible for helping an agency
decide whether to proceed with the process and, if so, define the issues for discussion and select
participants; the Act goes on to define a facilitator as a neutral who mediates throughout the
negotiation itself.147 The same person can fill both roles, and the terms are therefore sometimes
used interchangeably.

145

Negotiated Rulemaking Panel, supra note 96.
Id.
147
Pub. L. No. 101-648, 104 Stat. 4969, §562. For further discussion and examples of the convening process, see
NEGOTIATED RULEMAKING SOURCEBOOK, supra note 34, at 123–192.
146

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Attentiveness to such terminology matters only to the extent that confusion may result if
the terms are unclear or carry certain connotations for other participants. For example, some
agencies might avoid referring to their neutral as a mediator, insofar as the term calls to mind the
adversarial posture of litigation. What is most important is ensuring that agency staff, the
neutral(s), and participants are aware of what role the neutral will play.
All such individuals avoid taking positions as to the substance of a negotiation, but the
extent to which they move the process along can vary from intensive to minimal.148 Agency staff
may envision using a neutral playing primarily an organizational role from the outset of the
negotiation to its conclusion—selecting committee participants, overseeing meetings, and
preparing the committee’s reports. Because it is an agency’s responsibility to formulate policy,
there may be sensitivity when a neutral moves beyond these organizational responsibilities.
While a Reg Neg can be conducted with a minimal role for the neutral, many would see
their role in the negotiation as much more active.149 Individuals with ADR, facilitation, and
mediation experience are trained to move the committee toward the process’s goal—which, in Reg
Neg, is to develop a well-informed, consensus-based draft NRPM. Under this view, the neutral
may advance the negotiation in many ways, including by helping participants identify areas where
more facts are needed, clearly articulating issues and concerns, and ranking priorities.
Additionally, in contentious negotiations, the neutral can work one-on-one with individual
participants, when necessary, to persuade those who are dissatisfied to stay at the table and be
productive. Such techniques are classic in mediation contexts and take advantage of the neutral’s
role as a non-party. Given the time and resources invested in Reg Neg, it is likely that selecting a
neutral who can actively advance, rather than merely organize, the negotiation will lead to a better
draft proposal.
Framing the issues. The timing of when a facilitator is brought into the process makes a
difference. If an agency contacts a convenor as soon as it is considering using Reg Neg, he or she
can provide input into whether the issues the agency wants to negotiate are suitable for the process.
The convenor can then also help frame the issues for negotiation by the committee.
In some cases, particularly where there is a statutory mandate directing the agency to
assemble a committee, an agency may take the lead on defining the issues for negotiation and
identifying participants, only recruiting a convenor after these steps are complete. Regardless of
when a convenor is brought in, however, there may be value in opening the negotiation with a
proposal covering all topics that would need to be in an NPRM. This can support the negotiation
by allowing participants to see there are some areas on which they agree. Participants may find
this easier than having to negotiate only the thorniest issues under negotiation.
B. Assembling the Committee
FACA requirements. First, the procedural aspects of assembling the negotiated rulemaking
committee largely revolve around FACA. As has been mentioned briefly in the previous sections,

148
149

Better Decisions, supra note 79, at 31.
Id.

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many have pointed to FACA requirements as a significant contributor to delay and complexity in
Reg Neg.
In 1993, President Clinton issued an Executive Order to reduce the number of federal
advisory committees, and limit the creation of new committees not required by statute. 150 The
General Services Administration (GSA), which reviews and approves all FACA charters, has been
tasked with enforcing an upper limit of 534 discretionary committees.151 Although this ceiling has
not been reached, a widespread perception persists that securing approval for a discretionary
advisory committee is challenging. As a result, many agencies have sought to minimize use of
advisory committees and, when they do prepare charters, staff may invest significant resources
into drafting the charter to support its approval.152
While the internal procedures for establishing an advisory committee can be timeconsuming, the process does not otherwise appear to be difficult. From our interviews, a sixmonth waiting period to approve and form a committee seems common. Agency decision-makers
have often sought to avoid such delay through technical workshops and other methods that provide
some structure for soliciting input, but avoid group advice. However, where systematic feedback
from multiple stakeholders is needed, other mechanisms may be more procedurally stymied. For
example, it could take well over a year to create and receive approval for a survey instrument under
the Paperwork Reduction Act.153 If an agency contemplates using such an instrument to inform a
rulemaking, Reg Neg could prove a procedurally preferable process—assuming the policy under
development is otherwise suited to the considerations discussed throughout this report.
Still, there are several ways agencies can manage the delay and resource costs associated
with creating advisory committees. One approach is to charter a parent advisory committee, and
create sub-committees for individual Reg Negs. In this way, the agency need only go through the
chartering process once, though the charter does need to be renewed periodically. Sub-committees
may comply with FACA requirements—such as opening meetings to the public and publishing
notices in the Federal Register—but need not do so. The parent committee could be large, and
serve as the primary source of participants on individual sub-committees. Alternatively, an agency
could use a small, steering parent committee and select participants for individual Reg Negs even
if those individuals do not sit on the parent committee.
The latter approach may be most appropriate in highly technical areas of rulemaking where
stakeholders will frequently work together. The Department of Energy’s (DOE) Appliance
Standards and Rulemaking Federal Advisory Committee (ASRAC) serves as a standing Reg Neg

150

Exec. Order No. 12,838, 58 Fed. Reg. 8207 (Feb. 10, 1993).
Administrative Conference Recommendation 2011-7, The Federal Advisory Committee Act – Issues and
Proposed Reforms, at preamble.
152
Bull, supra note 73, at 36–37.
153
The Department of Health and Human Services estimates that clearance of a survey instrument (or other
“information collection” under the Paperwork Reduction Act takes six to nine months. This does not include the
time an agency spends drafting and reviewing a survey before initiating the clearance process. Frequently Asked
Questions about PRA/Information Collection, DEP’T HEALTH & HUMAN SERV.,
https://www.hhs.gov/ocio/policy/collection/infocollectfaq.html.
151

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body for setting energy efficiency standards for appliances and commercial equipment. 154 The
ASRAC itself is comprised of 13 members who oversee the negotiations of sub-committees
(“working groups,” in DOE parlance) on discrete topics, such as manufactured housing.155 These
sub-committees will necessarily be comprised of members other than those who serve on the
parent committee, though the participants who serve on both the parent and particular subcommittee can supplement the facilitator’s effort to mentor new participants in the norms of
negotiation. Parent committee members also facilitate exchange with the other members of the
parent committee. The latter role is particularly important, because under FACA parent
committees may not merely rubber stamp the work of sub-groups.
Another approach to the parent-sub structure is used by the Federal Aviation
Administration (FAA). FAA uses rulemaking committees,156 which are ad hoc bodies unique to
the agency, to advise on technical aspects of a particular ongoing rulemaking (Aviation
Rulemaking Committees or ARCs); FAA also uses a standing advisory committee for Reg Neg
and other structured public participation (Aviation Rulemaking Advisory Committees or
ARACs).157 ARACs comply with FACA (unlike ARCs, which are statutorily exempt). ARAC
sub-committees, much like those used by DOE, are formed to address particular topics (whether
through formal negotiated rulemaking or otherwise) and also voluntarily comply with all FACA
requirements other than chartering, such as holding open meetings and keeping detailed meeting
minutes.158
Though the above approaches can net significant benefits, a few potential drawbacks of the
parent-sub process should be noted. Depending on an agency’s policies, the time required to form
a sub-committee could be equal to that required for chartering a new advisory committee.
Agencies should also exercise caution in using an existing committee to serve as the parent for a
Reg Neg sub-committee when the parent committee was not designed for that purpose. Because
the activities of the sub-committee must be routed through the parent, the sub-committee’s work
could be disrupted if the parent imposes its procedural requirements (e.g., rule on preparing
meeting summaries) on the sub-committee without consideration for how the two committees’
goals differ.
Finally, when Congress mandates that an agency use Reg Neg, an advisory committee
would thereby be required by statute and not fall under the category of discretionary committees
Appliance Standards and Rulemaking Federal Advisory Committee, DEP’T OF ENERGY,
https://energy.gov/eere/buildings/appliance-standards-and-rulemaking-federal-advisory-committee (hereinafter,
ASRAC overview).
155
Id.
156
FAA is authorized by statute to use rulemaking committees—“groups of aviation specialist[s] who evaluate
issues that could result in rulemaking”—that are exempt from FACA. The Office of Rulemaking Committee
Manual, OFFICE OF RULEMAKING, FED. AVIATION. ADMIN., Part I: Chapter 2.1,
https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/Comm_001_015.pdf
(hereinafter, FAA Committee Manual).
157
Id.
158
Id. at Part III: Chapter 1.8. Professor Hannah Wiseman provides another example of how agencies might use
standing advisory committees to engage in negotiated rulemaking in her case study on the Federal Railroad
Administration’s rulemaking to “address accidents involving trains carrying crude oil and ethanol.” See Hannah J.
Wiseman, Negotiated Rulemaking and New Risks: A Rail Safety Case Study, 7 WAKE FOREST J. L. & POL’Y
(forthcoming 2017), 106–108, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2796577.
154

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capped by GSA. In some cases, Congress has exempted agencies from FACA requirements when
mandating the use of Reg Neg. If Congress chooses not to do so, an agency will likely require at
least six months to form the committee before it can begin substantive work on the rules it has
been directed to issue.
Selecting the participants. Second, the convenor will recommend and the agency will
select the participating stakeholders who will serve on the committee (or, in the case of some
statutorily mandated Reg Negs, the agency will select the stakeholders directly). The main
requirement here is balance—ensuring all identifiable interests are represented at the negotiating
table. As highlighted by Philip Harter’s original report to ACUS on Reg Neg, “negotiation would
be inappropriate for a regulation that would affect many interests in such diverse ways that
representation by a few individuals or teams of individuals would be impossible.”159
From past interactions with stakeholders, agencies will have a general sense of the parties
who may be interested in a specific Reg Neg. However, it is important to avoid defaulting to the
“usual players.” Indeed, the role of a convenor here can parallel his or her role in framing the
issues for discussion. Through informational interviews with stakeholders the agency has already
identified, a convenor can identify sub-groups or alternative positions taken by different members
of industrial, civil, and other interest groups. In so doing, the convenor can best ensure that each
group that will be affected differently by the proposed rule has its own seat at the table. If done
properly, Reg Neg can in this way “level the playing field and eliminate the chance that [one party]
is going to hijack [other interests]”.160
C. Conducting the Negotiation and Reaching Consensus
While the conduct of the negotiation will comprise the bulk of time and effort invested by
the agency, most relevant considerations have already been discussed in this report. This only
reinforces how essential early, thoughtful planning is to conducting a successful Reg Neg.
Ultimately, pre-planning is in large part designed to avoid last minute surprises that could derail
the negotiation.161
In particular, the role of the convenor is worth revisiting here. If the agency has had a
strong hand in selecting the participants, and has elected to use the convenor as more of an
organizer than a mediator, there may be some tension insofar as the agency is also a party to the
negotiation.162 The agency should make clear for itself and all other members what role different
agency staff play in the process.
Setting the bounds of negotiation early will support a smooth negotiation process. This
includes mindfulness of the agency’s statutory mandate, which largely means there will only be
discussion about how to accomplish a goal, not what goal should be accomplished. Insofar as this

159

Harter, supra note 3, at 46.
Negotiated Rulemaking Panel, supra note 96.
161
For further discussion and examples related to conducting and finalizing the negotiation, see NEGOTIATED
RULEMAKING SOURCEBOOK, supra note 34, at 207–266.
162
The Negotiated Rulemaking Act specifies that the agency will be represented as a member on the negotiated
rulemaking committee.
160

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means the agency is unwilling to negotiate on some positions, that should be made clear to the
participants.
Similarly, all participants should be mindful of what Reg Neg cannot do. The committee
cannot elect to exclude certain issues from consideration in order to reach agreement. Doing so
could, among other ramifications, undermine the agency’s original justification for the rule, which
would jeopardize the rulemaking as a whole. In such circumstances, the proposal is likely to be
modified substantially despite the consensus agreement, particularly if avoiding certain issues
raises concerns with the agency’s benefit-cost analysis.
D. Issuing the NPRM and Proceeding with Informal Rulemaking
One of the arguments in favor of Reg Neg has been that, because it is followed by the
traditional informal rulemaking process, any potential flaws in the selection of participants,
information or facts laid out by the parties, etc. will be rectified through notice-and-comment.
However, it is worth bearing in mind that this should only be a failsafe, if the Reg Neg was
conducted properly.
Much of Reg Neg’s success relies on thoughtful advance planning—which includes
anticipation of how the post-negotiation process will play out. One essential piece of this is
ensuring that the participants understand the totality of the rulemaking process. Participants should
know that their final agreement is subject to outside revision in accordance with the agency’s legal
requirements—including OIRA review. If participants are not cautioned about the postnegotiation process, deviations from their final agreement would likely come as a surprise and
could undermine participants’ faith in the process.
In addition to educating participants about the rulemaking process, it may be good practice
for an agency to keep OIRA desk officers informed of ongoing negotiations. Though desk officers
may not have the resources to attend meetings of the negotiation committee, some interface
between agency officials and OIRA could enable desk officers to voice concerns about the data
and other evidence under negotiation that is related to benefit-cost and related analyses.

VI. Recommendations
Selecting the Optimal Approach to Stakeholder Engagement
1. Negotiated Rulemaking is one option of many that agencies should consider when seeking
stakeholder input on a contemplated rule. The following alternatives to negotiated rulemaking
are likely to prove preferable under certain circumstances:
a. Notice-and-comment rulemaking is likely adequate when the goal is simply to obtain
documentary information from a wide array of stakeholders.
b. Agencies should consider meeting with selected groups of stakeholders where they
contemplate a two-way exchange of information but do not consider it worthwhile to
convene a larger assemblage of stakeholders to provide group-level advice.
c. In situations in which the agency is interested in determining the views of various
stakeholder groups in connection with a contemplated rule but does not consider it
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worthwhile to push for a consensus position on a proposed rule, the agency should consider
convening an ad hoc assemblage of stakeholders to provide input (often referred to as
“Reg Neg Lite” in agency parlance).
d. Where the agency seeks group-based input on a discrete aspect of a proposed policy
(whether or not connected with a contemplated rule), the agency should convene an
advisory committee, observing all requirements prescribed by FACA.
Prior to determining what stakeholder outreach (if any) it wishes to undertake beyond the
minimum requirements of notice-and-comment rulemaking,163 the agency should consider its long
term goals and determine which stakeholder engagement tool is most likely to advance those ends.
In many cases, notice-and-comment alone may be adequate. Specifically, if the agency is simply
looking to obtain additional technical information or to ascertain the views of stakeholder groups
that are likely to file a comment of their own volition,164 notice-and-comment is likely completely
sufficient.
The primary limitation of the notice-and-comment process is that it lacks engagement, as
defined above, between the public and the agency. The agency does not, as a general matter,
consult commenters to obtain additional information or to flesh out the information contained in
the comments received. In circumstances in which the agency perceives some benefit in more
active interaction with certain stakeholder groups, it may wish to undertake affirmative outreach
to solicit information from specific stakeholders or groups thereof. As a general matter, there is
no prohibition on agencies’ engaging in so-called “ex parte contacts” with private parties,
especially prior to the issuance of a notice of proposed rulemaking.165 Though the agency should
strive to ensure that it is obtaining a balanced set of perspectives (e.g., it should not reach out solely
to large corporations or to environmental organizations), there is no legal requirement that the
agency do so (other than the risk that a rule informed by only one set of views may be less likely
to survive judicial review). As such, the agency should simply use its discretion in deciding which
stakeholders to contact and on which specific issues to solicit their input.
As discussed in Section III, Reg Neg Lite is much less formal than Reg Neg or the advisory
committee process, which gives the agency much greater flexibility in determining precisely how
it will structure the dialogue among the stakeholders. Most importantly, as there is no expectation
that the group will reach a consensus position or produce a draft rule, the agency can decide
precisely what it wishes to achieve from the process. In this light, the agency should be as precise
163

5 U.S.C. § 553.
Certain commentators have argued that traditional notice-and-comment gives a skewed picture of stakeholders’
views, as only especially well-financed entities are likely to participate in the process. See, e.g., JOHN E. CHUBB,
INTEREST GROUPS AND THE BUREAUCRACY: THE POLITICS OF ENERGY 251 (1983); Wendy Wagner et al.,
Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards, 63 ADMIN. L. REV. 99, 123
(2011). In this light, agencies may consider undertaking affirmative steps to obtain the views of stakeholders that
are unlikely to be represented (e.g., small business organizations), though resource constraints may render such
outreach infeasible.
165
Sierra Club v. Costle, 657 F.2d 298, 400–01 (D.C. Cir. 1981); Esa L. Sferra-Bonistalli, Ex Parte
Communications in Informal Rulemaking 25 (May 1, 2014), https://www.acus.gov/report/final-ex-partecommunications-report.
164

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and transparent as possible in communicating its goals to the participants. For instance, if the
agency wishes only to receive technical information from the stakeholder groups and is not
interested in those groups’ position on whether or not issuing a rule is advisable as a policy matter,
it should explicitly state that at the outset.
If handled properly, Reg Neg Lite can produce highly valuable information without
constraining the agencies’ decisionmaking discretion by binding it to issuing the rule agreed upon
by the stakeholders. On the other hand, stakeholders may be much less willing to engage
constructively in the Reg Neg Lite process, as they have no firm commitment from the agency that
it will ultimately act on the stakeholders’ recommendations. Thus, the agency may prefer formal
negotiated rulemaking if it believes that the benefits of incentivizing serious stakeholder
engagement outweigh the costs of tying its hands to a certain extent. Of course, if the agency opts
to use Reg Neg Lite, then it must scrupulously manage stakeholder expectations by carefully
explaining what it hopes to achieve. Otherwise, stakeholder groups are likely to be highly wary
of the process and to refuse to engage constructively.
A final consideration associated with the use of Reg Neg Lite is avoiding inadvertently
triggering FACA. FACA applies when an assemblage of stakeholders is providing “group advice”
to the agency.166 Accordingly, so long as the various stakeholders do not engage with each other
and attempt to formulate common advice to the agency, the interaction should qualify for the socalled “individual advice” exemption to FACA.167 Of course, the precise point at which
“individual advice-giving” matures into “group advice-giving” is difficult to define, so the agency
must maintain a level of vigilance in conducting such meetings. Some agencies ensure that an
attorney from the General Counsel’s office is on hand at all times and can terminate the meeting
if the discussion moves in a direction that may trigger FACA.
The final option for stakeholder outreach is actually convening an advisory committee
under the procedures set forth under FACA. Agencies are understandably reluctant to invoke this
procedure, as the formation of an advisory committee can be a protracted process, 168 and FACA
imposes various strictures on the operation of committee meetings (e.g., requirements for Federal
Register notice, open meetings, solicitation of public comments, public availability of committee
documents).169 Nevertheless, as the 2011 Conference project on FACA demonstrated, many of
the hurdles to effective use of advisory committees are self-created, and agencies can considerably
expedite at least the committee formation process considerably if they are diligent. For instance,
agencies can quickly approve draft committee charters if they obtain all internal approvals
simultaneously rather than passing along the document from one reviewer to the next (the external
review of the charter by the General Services Administration is actually relatively quick).170

166

5 U.S.C. app. § 3(2); Bull, supra note 73, at 13.
Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 913 (D.C. Cir. 1993); Nader v. Baroody, 396
F. Supp. 1231, 1234 (D.D.C. 1975); Bull, supra note 73, at 13–14.
168
Bull, supra note 73, at 47.
169
See generally 5 U.S.C. app.
170
Bull, supra note 73, at 47–48.
167

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The advisory committee process is optimal when the agency has identified a discrete issue
on which it requires the formal advice of a balanced group of stakeholders. As a general matter,
the committee will be tasked with opining on some specific component of a broader rulemaking
process (e.g., commenting on a study that undergirds a proposed rule) rather than advising on the
overall rule itself. If the agency simply wishes to solicit broader stakeholder input on a proposed
rule, Reg Neg Lite or informal stakeholder outreach is likely to be more suitable.
Deciding When to Use Negotiated Rulemaking
2. An agency should consider utilizing negotiated rulemaking when it determines that there is a
high probability that it can convene a discrete, representative group of stakeholders that can reach
consensus on the text of a proposed rule.
3. As a general matter, Congress should not statutorily direct an agency to use negotiated
rulemaking, except in instances in which it has actually determined that the probability of
achieving stakeholder consensus on a proposed rule is high. If Congress wishes to enhance
stakeholder input, alternatives such as a requirement to issue an advance notice of proposed
rulemaking or to convene an advisory committee will often be preferable to mandated negotiated
rulemaking.
For all of the reasons explored previously, the universe of proposed regulations in which
negotiated rulemaking is the optimal course of action is likely quite small. Conducting a negotiated
rulemaking is resource intensive, and any number of alternative options, including Reg Neg Lite,
often prove preferable. The research contained in the previous sections of this report suggests that
the factors identified in the Negotiated Rulemaking Act remain relevant in deciding whether to
pursue this course. Specifically, the agency must be mindful of the following:


“[T]here is a limited number of identifiable interests that will be significantly affected by
the rule.”171 Given the inherent challenges of group dynamics, a negotiated rulemaking
committee with any more than roughly 25 members is unlikely to operate effectively. 172
Consequently, if there are more than 25 discrete stakeholder interests that must be
represented on the committee to achieve any durable consensus, negotiated rulemaking is
not an attractive option.
Though the interests not represented on the committee can of course submit public
comments after the fact, or could attend public meetings and comment but not vote,173 this
opportunity for participation pales in comparison to a seat on the negotiated rulemaking
committee. A negotiated rulemaking failing to include all affected interests would be
flawed, as has been noted since the original development of the process. Indeed, such an
exclusionary approach would give credence to the argument that negotiated rulemaking is

171

5 U.S.C. § 563(a)(2).
Id. § 565(b). Recall that members represent the interests of their overall stakeholder group, rather than only the
interests of their own organization.
173
Id. § 553(c).
172

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a form of institutionalized capture in which large stakeholders reach a mutually desirable
bargain at the expense of small stakeholders.174 In particular, agencies should be highly
sensitive to whether small and medium enterprises can appoint one or more representatives
that can adequately represent the full diversity of interests prevailing in that community.


“[T]here is a reasonable likelihood that a committee can be convened with a balanced
representation of persons who (a) can adequately represent the [identifiable and
significantly affected] interests and (b) are willing to negotiate in good faith to reach a
consensus on the proposed rule.”175 For the reasons explored previously, it is absolutely
imperative that the committee include a balanced set of stakeholders that represents all or
nearly all of the key interest groups. Any omission of a significant interest group or any
imbalance in representation will necessarily lead to charges of favoritism and capture,
dooming the process from the very outset.
It is also critical that the committee is capable of reaching a non-zero sum outcome, such
that all stakeholders are satisfied that the committee’s product is preferable to what would
have been achieved had the agency proceeded with a rule in the absence of convening a
negotiated rulemaking committee. As in any almost non-zero sum game, some parties will
obtain a more favorable outcome than others, but each participant must leave the process
believing that its views received a fair hearing and that the final outcome is acceptable.
Otherwise, disaffected participants are unlikely to live by the bargain reached and may
decide to challenge the rule in court, which they remain perfectly free to do.176 Indeed, at
least one prominent scholar has contended that negotiated rulemaking does not reduce the
incidence of litigation surrounding a rule,177 and the ease with which any disaffected
participant can challenge the consensus rule is perhaps one reason why. Of course,
participants that agreed to the proposed rule text can also challenge the end product in
court, but they are presumably much less likely to do so if they believe that the committee’s
rule is more favorable to their interests than a rule issued exclusively by the agency would
be.



The agency possesses the resources necessary to conduct a negotiated rulemaking and
determines that the institutional benefits outweigh the costs.178 From an institutional
perspective, an agency will not pursue negotiated rulemaking unless it deems the benefits
to exceed the costs. For reasons explored earlier in the report, the costs are often less

174

Funk, supra note 66, at 1375.
5 U.S.C. § 563(a)(3).
176
While the Negotiated Rulemaking Act provides that a negotiated rulemaking committee should attempt to reach a
consensus, no section of the statute imposes or implies that parties to the negotiation are prohibited from bringing
legal challenge to the rule (regardless of whether the committee reaches consensus). The Negotiated Rulemaking
Act of 1996, Pub. L. 104-320 (amending Pub. L. 101-648 and Pub. L. 102-354), §566.
177
Coglianese, supra note 7, at 1298.
178
See 5 U.S.C. §§ 563(a)(4)–(6) (providing that “there is a reasonable likelihood that the committee will reach
consensus on the proposed rule within a fixed period of time;” “the negotiated rulemaking procedure will not
unreasonably delay the notice of proposed rulemaking and the issuance of the final rule;” and “the agency has
adequate resources and is willing to commit such resources, including technical assistance, to the committee.”).
175

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substantial than the agency might initially assume: the services of a convenor/facilitator
can often be acquired inexpensively (on the order of tens of thousands of dollars), and the
initial investment of time can often pay dividends on the back end if the notice-andcomment process proceeds more smoothly or the final rule is less likely to be challenged
in court.179 Nevertheless, the benefits are often difficult to quantify, whereas the costs are
concrete and immediately apparent, which likely creates a disincentive to pursue negotiated
rulemaking.180 Furthermore, many of the same benefits can often be captured through the
use of Reg Neg Lite or an even less formal mechanisms of stakeholder outreach, such that
the marginal benefits of negotiated rulemaking may not outweigh the marginal costs.
Unfortunately, there are no overarching principles that an agency can apply here; each
rulemaking situation is unique. Of course, an agency should not pursue negotiated
rulemaking if it faces an imminent statutory deadline or otherwise must act very quickly in
promulgating a rule. Nevertheless, in those instances in which negotiated rulemaking
could be a viable option but in which the agency is unsure of whether the benefits exceed
the costs, some degree of speculation is inevitable. In these circumstances, the relevant
agency officials must ask: (a) Have the aforementioned statutory factors been satisfied,
such that the likelihood of achieving group consensus on a draft rule is relatively
high? -and- (b) Do the marginal benefits associated with negotiated rulemaking exceed the
marginal costs vis-à-vis some less formal alternative such as Reg Neg Lite? Though the
agency can never answer these questions with anything approaching complete certainty, it
should at least be able to identify areas in which the probability of a successful negotiated
rulemaking is high, especially as it acquires experience in using the procedure.


“[T]he 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.”181 In order to ensure
that the participants in the negotiated rulemaking bargain in good faith, the agency must
provide some level of commitment that it will actually use the draft consensus rule
achieved as part of the process. Of course, the draft rule is still subject to notice and
comment,182 and it therefore may change as the agency finalizes the rule, but the parties
should at least receive the assurance that the agency will introduce the draft text as a
proposed rule. If the agency reserves the right to tinker with the product after the fact, then
the parties have essentially no incentive to bargain in good faith (especially if they are

179

Agencies and regulated entities are likely to benefit over the long-term from having better working relationships.
For example, parties who better understand the regulatory process participate in the rulemaking process and comply
with regulatory requirements more effectively. For their part, agencies would likely more easily access stakeholder
data and be able to promulgate higher quality rules.
180
There is also a practical imbalance in costs versus savings. For example, savings from avoiding litigation are
deferred to the future; they may also accrue to the Department of Justice rather than an agency’s own budget. See
Lubbers, supra note 70, at 997.
181
5 U.S.C. § 563(a)(7).
182
Lubbers, supra note 70, at 989.

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compromising the position they might otherwise take in litigation against the agency) and
the process is almost certainly doomed from the outset.
By the same token, for reasons that will be explored in greater detail in subsequent
recommendations, the agency must clearly articulate any statutory and regulatory
limitations that would constrain the contents of the final rule. If the parties ultimately agree
to a position that the agency is foreclosed from taking as a matter of law, then the agency
cannot issue the consensus rule, and this outcome will necessarily produce alienation on
the part of the participants. As such, the agency must be very explicit in drafting the
committee’s charge, defining the precise parameters of what the committee can and cannot
do under existing law.
Given the complexity of the foregoing calculations, the agency will, as a general matter,
be the party that is best situated to determine whether negotiated rulemaking is optimal in any
given set of circumstances. It would be challenging for Congress to make this determination when
directing an agency to regulate in a particular area. If the goal is to require the agency to engage
more closely with key stakeholders, alternatives such as an advance notice of proposed rulemaking
requirement are likely to prove far more productive. That is not to say that Congress could not
identify an area wherein a discrete group of stakeholders is likely to reach consensus on a draft
rule (especially if the relevant stakeholders are lobbying members of Congress for a negotiated
rulemaking requirement), but the circumstances in which that outcome is likely to obtain are
almost certainly exceedingly rare. Accordingly, Congress should generally leave the decision of
whether to invoke negotiated rulemaking to the agencies.183
Structuring a Negotiated Rulemaking Committee to Maximize the Probability of Success
4. Agency officials should clearly define the charge of the negotiated rulemaking committee at the
outset. This involves explicitly stating all restraints on the universe of options the committee is
authorized to consider, including legal prohibitions and policy positions that the agency is
unwilling to take. It also involves informing the committee of the use to which the information they
provide will be put and notifying them that negotiated rulemaking committee meetings and
documents submitted in connection therewith are available to the public as a default.
5. Agencies should appoint an official with sufficient authority to speak on behalf of the agency to
attend all negotiated rulemaking committee meetings. This individual should actively manage
stakeholder expectations, informing participants of any legal or other constraints that would limit
the range of options available to the committee members.
Managing stakeholder expectations is a critical component to ensuring the success of the
negotiated rulemaking process. If the agency does not clearly communicate the committee’s
charge and explicitly delineate the range of policy options the committee can consider, the
183

The authors have not closely analyzed the situations in which Congress has mandated the use of negotiated
rulemaking, and they therefore express no opinion on whether Congress should eliminate the negotiated rulemaking
requirement in those cases.

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probability that the committee will ultimately produce a draft rule that the agency cannot introduce
is greatly increased. This, in turn, alienates committee members, who are then much less likely to
engage constructively in subsequent negotiated rulemakings or other stakeholder engagement
efforts the agency undertakes. As such, the agency officials structuring the committee must very
clearly describe both the committee’s mandate and the legal constraints under which the agency
operates to the members. To the extent that the agency can appoint an official to participate in the
committee’s work and notify the committee when they are contemplating a course of action that
the agency cannot ultimately support, the likelihood of a downstream conflict is further minimized.
By the same token, agency officials should explicitly communicate the legal strictures that
govern negotiated rulemaking committee meetings. Most importantly, since negotiated
rulemaking committee meetings are advisory committee meetings subject to FACA (with a
handful of exceptions, wherein Congress has explicitly exempted certain agencies’ negotiated
rulemaking committee meetings from FACA), all committee meetings are open to public
participation,184 and any documents considered by the committee are subject to public inspection
on request.185 As such, participants should not be operating under the mistaken assumption that
anything they say or submit to the larger committee will be confidential. FACA does contain a
provision for closing committee meetings or portions thereof, which requires that agency invoke
one of the exceptions to the open meeting requirements set forth in the Government in the Sunshine
Act,186 but those exceptions would not typically be met in the context of a negotiated rulemaking
committee meeting.187 Furthermore, as a matter of policy, the agency would likely wish to
maintain the highest level of openness possible, especially given the concern that negotiated
rulemaking promotes a form of institutionalized capture wherein well-connected players reach a
backroom deal outside of the public gaze.
6. Agencies should clearly define the convenor and facilitator’s roles at the outset of a negotiated
rulemaking. Agencies also should draw upon the convenor and facilitator’s expertise in selecting
committee members, defining the issues the committee will address, and setting the goals for the
committee’s work.
As explored earlier in the report, negotiated rulemaking grew from a broader movement to
import many of the norms of ADR into agency decisionmaking. Agencies have traditionally drawn
on the expertise residing in the ADR community by appointing a convenor (who helps structure
the negotiated rulemaking committee and define its charge) and/or a facilitator (who effectively
acts as a mediator among the various stakeholder groups during the actual committee meetings) to
assist in certain negotiated rulemakings. Whether the agency uses one or more such ADR
professionals will depend on the circumstances surrounding a contemplated rule (including the
resources that the agency can dedicate to any given negotiated rulemaking effort), and this report
therefore expresses no opinion on whether agencies should always appoint convenors or
184

5 U.S.C. app. § 10(a)(1).
Id. § 10(b).
186
Id. § 10(d).
187
The exception that is most likely to be met in connection with a negotiated rulemaking committee meeting is that
for “trade secrets and commercial or financial information.” 5 U.S.C. § 552b(b)(4).
185

39

June 5, 2017

facilitators or the contexts in which it may be especially productive to do so.188 Ultimately, this is
a decision the agency will need to make on a case-by-case basis.
Nevertheless, to the extent that the agency elects to involve an ADR professional, he or she
should be included in the process as early as possible. Having the same individual serve as both
the convenor and facilitator can be beneficial in that he or she is involved in the entire lifecycle of
the committee process.189 ADR professionals can offer valuable insights on the stakeholder groups
the agency should include and on the types of stakeholder representatives who are most likely to
engage constructively in the process. ADR professionals can also help identify the types of
problems that lend themselves to non-zero sum solutions and set realistic goals for what the
committee can accomplish. Thus, if it elects to use an ADR professional, the agency should not
bring in the individual as an afterthought, after it has already formed a committee and provided it
with a charge. The upfront investment associated with hiring a professional early in the process
can pay significant dividends in maximizing the probability that the negotiation will proceed
smoothly and that the committee will ultimately produce a viable work product.
7. Agencies should be mindful of OIRA’s role in the rulemaking process when conducting
negotiated rulemaking. This includes inviting the agency’s OIRA desk officer to participate in the
committee meetings or providing him or her with briefings on the meetings, informing the
committee members of OIRA’s role in the process, and using the committee process to develop the
elements of a regulatory impact analysis.
From its very inception, negotiated rulemaking has been in some tension with the OIRA
process for reviewing significant regulations.190 The reason why is not too difficult to grasp: a
negotiated rulemaking committee is tasked with producing a fully-formed draft rule that the agency
will propose, yet OIRA has an important role in scrutinizing significant proposed rules prior to the
issuance of a notice of proposed rulemaking (including assessing the economic analysis
underpinning the rule and coordinating an interagency review process).191 To the extent a conflict
arises, understandable frustrations can emerge on both sides: OIRA may feel as if it is being frozen
out of the process, and committee members may feel that their work is all for naught if OIRA
upsets the bargain struck among the stakeholders after-the-fact.
Fortunately, the risk of such a conflict can be greatly reduced (though likely not eliminated
entirely) by carefully managing the expectations of the stakeholders. Ultimately, OIRA’s role in
the regulatory process is well-established, and negotiated rulemaking need not displace or diminish
that role in any respect. As such, committee members should be informed of OIRA’s role in
188

Nevertheless, agency staff pursuing (or considering whether to pursue) negotiated rulemaking might refer to the
recommendations on how agencies might most effectively use facilitators made by Jeff Lubbers as part of a report of
the Task Force on Federal Regulation of Higher Education. Jeffrey S. Lubbers, supra note 37, at 100–101.
189
The agency should nevertheless be aware that a convener may have a conflict of interest in that he or she may
have an incentive to recommend proceeding with a Reg Neg in order to maximize the probability that he or she will
be selected as facilitator.
190
Lubbers, supra note 70, at 999–1000.
191
Exec. Order No. 12,866, § 6(b), 58 Fed. Reg. 51,735, 51,742–43 (Oct. 4, 1993); Cass R. Sunstein, The Office of
Information and Regulatory Affairs: Myths and Realities, 126 HARV. L. REV. 1838, 1841–42 (2013).

40

June 5, 2017

reviewing significant regulations and notified that OIRA may ultimately recommend changes to
the draft rule that the committee produces. The agency should also advise the committee of steps
the agency is taking to anticipate and preemptively address the possible reasons OIRA would
request changes. Committee members should also be informed of OIRA’s role in reviewing the
regulatory impact analysis undergirding economically significant regulations,192 and they should
be encouraged to produce the sort of economic analysis of regulatory benefits and costs associated
with the key regulatory alternatives that will ultimately be included in the agency’s regulatory
impact analysis that is reviewed by OIRA. Finally, the agency component conducting the
negotiated rulemaking should invite its OIRA desk officer to participate in the committee
meetings, or offer to brief the officer on the meetings. Unfortunately, OIRA is currently quite
understaffed by historical standards,193 and resource constraints may limit the extent to which the
desk officer can actively participate, but the agency should proffer the desk officer an opportunity
to attend meetings and provide periodic updates on the committee’s work if the desk officer
ultimately cannot participate.
Again, even if the agency scrupulously observes these recommendations, OIRA may
ultimately question certain aspects of the draft rule produced, and the committee members should
be informed that OIRA is fully empowered to do so. Nevertheless, the proposed practices should
significantly reduce the likelihood of a conflict, especially insofar as the stakeholders involved in
the negotiated rulemaking process are the same as those that would meet with OIRA and urge
reforms to an agency’s proposed rule.
8. Congress should amend the Negotiated Rulemaking Act to exempt negotiated rulemaking
committees from the requirements of FACA. Congress should then also amend the Negotiated
Rulemaking Act to require that negotiated rulemaking committee meetings be noticed in advance
and permit public participation.
9. In the absence of a statutory reform rendering FACA inapplicable to negotiated rulemaking,
agencies should take advantage of FACA’s flexibilities in convening negotiated rulemaking
committees. In particular, agencies should consider maintaining standing committees from which
a negotiated rulemaking committee can be formed on an as-needed basis, rather than chartering
a new committee anytime the agency wishes to undertake a negotiated rulemaking.
In 2011, the Administrative Conference recommended that negotiated rulemaking
committees be exempt from FACA.194 A detailed explanation of the rationale for that proposal
appears in an earlier report that one of the instant paper’s authors prepared for the Conference in
connection with that project.195 In essence, the idea is that the Negotiated Rulemaking Act already

192

Exec. Order No. 12,866, §§ 6(a)(3)(C), 6(b), 58 Fed. Reg. 51,735, 51,741–43 (Oct. 4, 1993).
Susan E. Dudley, Ten Regulatory Process Reform Recommendations for President-Elect Trump, FORBES, Dec. 8,
2016, http://www.forbes.com/sites/susandudley/2016/12/08/ten-regulatory-process-reform-recommendations-forpresident-elect-trump/#4c82df3a1630.
194
Administrative Conference of the United States, Recommendation 2011-7, The Federal Advisory Committee
Act—Issues and Proposed Reforms, ¶ 7, 77 Fed. Reg. 2261, 2263 (Jan. 17, 2012).
195
Bull, supra note 73, at 51–55.
193

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requires that agencies take care to ensure that negotiated rulemaking committees contain an
appropriate balance of committee members196 (and is duplicative of FACA in that respect) and that
it could easily be amended to include an open meeting requirement. The other elements of FACA,
such as the requirement that advisory committees be chartered, fit poorly in the context of
negotiated rulemaking and have potentially deterred agencies from using that process. 197 Indeed,
Congress has already exempted certain negotiated rulemakings conducted by specific agencies
from FACA,198 and extending this carveout to all negotiated rulemaking would ideally make it a
more attractive option for agencies. Accordingly, this report reaffirms and endorses the 2011
recommendation that Congress render FACA inapplicable to negotiated rulemaking.
Assuming that Congress does not take up this recommendation, agencies should at least
take advantage of the flexibilities within FACA to minimize the constraints it places upon their
negotiated rulemaking activities. As explored earlier in the report, two agencies have adopted an
innovative approach to structuring negotiated rulemaking committees that other agencies should
carefully consider.
The first approach, pioneered by the Federal Aviation Administration (hereafter the “FAA
approach”) involves creating a large standing committee with a wide array of members
representing the full panoply of stakeholder groups the agency is likely to encounter. Whenever
the FAA wishes to open a new negotiated rulemaking, it simply creates a subcommittee that
includes a selection of members from the parent committee who represent the key interest groups.
Since FACA does not apply to subcommittee meetings,199 this assemblage can operate outside the
constraints of the Act. Of course, the subcommittee should not operate in secrecy, and the FAA
therefore voluntarily complies with the FACA open meeting requirements in connection with
subcommittee meetings (though it is under no legal obligation to do so), but the subcommittee is
not chartered and otherwise does not observe the FACA requirements that create an unnecessary
hindrance to efficient committee operations. This arrangement still faces some potential legal
hurdles, as a parent committee cannot rubber-stamp the decisions reached by a subcommittee,200
196

5 U.S.C. §§ 563(a)(3).
Lubbers, supra note 70, at 1001. In addition to the various strictures imposed by FACA itself, Executive Order
12,838 places a cap on the total number of discretionary advisory committees (i.e., those not mandated by statute) in
the federal government. Exec. Order No. 12,838, 58 Fed. Reg. 8207 (Feb. 10, 1993); Office of Management &
Budget, Circular A-135: Management of Federal Advisory Committees, 59 Fed. Reg. 53,856, 53,857 (Oct. 26,
1994). Since negotiated rulemaking committees qualify as federal advisory committees, this cap may prove a
further deterrent to establishing new negotiated rulemaking committees. Of course, the total number of advisory
committees currently falls well below the cap, but some agency officials may be unaware of this and may be chilled
in forming new advisory committees. Bull, supra note 73166, at 38. Accordingly, this report reaffirms and
endorses the Conference’s 2011 recommendation that Executive Order 12,838’s cap be rescinded. Administrative
Conference of the United States, Recommendation 2011-7, The Federal Advisory Committee Act—Issues and
Proposed Reforms, ¶ 4, 77 Fed. Reg. 2261, 2263 (Jan. 17, 2012).
198
See, e.g., 20 U.S.C. § 6571(b)(4) (exempting the Department of Education from the strictures of FACA for a
statutorily required negotiated rulemaking); Pub. L. No. 111-239, § 2(b)(2)–(3), 124 Stat. 2501 (2010) (“Any
negotiated rulemaking committee established by the Secretary of Agriculture pursuant to [the section authorizing the
negotiated rulemaking committee] shall not be subject to the Federal Advisory Committee Act . . . .”).
199
41 C.F.R. § 102-3.35(a).
200
Charles Howton et al., FACA for Facilitators 30, available at
http://www.fs.fed.us/emc/nepa/ecr2008/sessions/materials/25/FACA%20for%20Facilitatators%20Presentation.pdf.
197

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but FAA ensures that the parent committee carefully considers the subcommittee’s
recommendation and issues a final vote.
The second approach, pioneered by the Department of Energy (hereafter the “DOE
approach”), involves creating a much smaller parent committee with a handful of members that
represent key stakeholder constituencies. When the agency wishes to undertake a negotiated
rulemaking, the parent committee establishes a subcommittee that includes one or more members
of the parent committee and also includes additional stakeholders who do not sit on the parent
committee. As with the FAA approach, the agency voluntarily complies with the open meeting
provisions of FACA, but the subcommittee is not chartered. Once the subcommittee has settled
upon the text of a proposed rule, the parent committee then reviews the subcommittee’s work and
transmits the draft rule to the agency.
Absent a statutory change rendering FACA inapplicable to negotiated rulemaking,
agencies should closely consider the FAA and DOE approaches to forming negotiated rulemaking
committees. Which of these approaches the agency selects ultimately depends upon the universe
of stakeholders with an interest in the agency’s work. If the agency regularly interacts with a
relatively small, discrete group of stakeholders, the FAA approach may prove optimal: each of the
stakeholder groups should have at least one representative on the parent committee, and the agency
should then form a subcommittee that includes each stakeholder group with an interest in a
particular rule. If, by contrast, the universe of stakeholders with which the agency interacts is
larger or more fluid, the DOE approach may be preferable. The parent committee can include
representatives of broad categories of stakeholders (e.g., major industry groups, environmental
organizations, consumer representatives), and the agency can then ascertain the specific interest
groups involved in a particular rule at a more granular level when forming the subcommittee. As
such, this report endorses neither approach as preferable to the other but commends both
approaches to agencies’ consideration.
Of course, both the FAA and DOE approaches depend on the continued viability of the socalled subcommittee exemption under FACA. In the last several years, the House has considered
(and on at least four separate occasions passed) a bill that would, among other things, eliminate
the subcommittee exemption.201 The authors echo the 2011 recommendation of the Conference in
urging Congress not to eliminate the subcommittee exception, both because it is critical to
conducting negotiated rulemaking efficiently and because agencies rely on it more broadly to
ensure that they can effectively organize and plan for advisory committee meetings without
constantly running up against the public meeting requirements.202

201

H.R. 70, 115th Cong. (2017) (passed the House on January 4, 2017); H.R. 2347, 114th Cong. (2016) (passed the
House on March 1, 2016); H.R. 1320, 111th Cong. (passed the House on July 26, 2010); H.R. 5687, 110th Cong.
(passed the House on June 24, 2008).
202
Administrative Conference of the United States, Recommendation 2011-7, The Federal Advisory Committee
Act—Issues and Proposed Reforms, ¶ 5, 77 Fed. Reg. 2261, 2263 (Jan. 17, 2012); Bull, supra note 73, at 43–45.

43

June 5, 2017

***
In conclusion, there are many circumstances under which agencies are likely to find
negotiated rulemaking to be beneficial. Where the issues an agency has under consideration, or
where the relationships among the agency and various stakeholder groups, are contentious, the
process’s structure may well offer the best chance for productive discussion of the underlying facts
and ultimate disposition of complex issues. Even in cases that are not contentious but are complex
and technical, convening a committee of stakeholders to exchange data and dig into the details will
almost certainly produce a draft rule superior to what an agency could have done on its own. There
are also many cases where negotiated rulemaking provides little added benefit over other
stakeholder engagement options. Agencies should carefully consider goals and constraints to
determine the process most suited to their needs. Because no one-size-fits-all approach is possible
for the varied work agencies undertake, hopefully the foregoing discussion provides insight into
the circumstances under which negotiated rulemaking is likely to prove most useful.

44

Appendix
The table below displays the Federal Register citation, publication date, and statutory mandate, if
any, for the 23 notices of intent to form a negotiated rulemaking committee published in the
Federal Register from April 29, 2013 to May 31, 2017.
Federal Register
Citation

Date

Agency

Required by
Statute?

78 Fed. Reg. 35179

June 12, 2013

Department of Education

Yes

78 Fed. Reg. 44036

July 23, 2013

Department of Energy

No

78 Fed. Reg. 57571

Sept. 19, 2013

Department of Education

Yes

78 Fed. Reg. 69612

Nov. 20, 2013

Department of Education

Yes

79 Fed. Reg. 33870

June 13, 2014

Department of Energy

No

79 Fed. Reg. 33873

June 13, 2014

Department of Energy

No

79 Fed. Reg. 52273

Sept. 3, 2014

Department of Education

Yes

79 Fed. Reg. 73273

Dec. 10, 2014

Department of
Transportation

No

79 Fed. Reg. 75771

Dec. 19, 2014

Department of Education

Yes

80 Fed. Reg. 17355

Apr. 1, 2015

Department of Energy

No

80 Fed. Reg. 17359

Apr. 1, 2015

Department of Energy

No

80 Fed. Reg. 17363

Apr. 1, 2015

Department of Energy

No

80 Fed. Reg. 40938

July 14, 2015

Department of Energy

No

80 Fed. Reg. 46521

Aug. 5, 2015

Department of Energy

No

80 Fed. Reg. 50588

Aug. 20, 2015

Department of Education

Yes

80 Fed. Reg. 51483

Aug. 25, 2015

Department of Energy

No

80 Fed. Reg. 63478

Oct. 20, 2015

Department of Education

Yes

80 Fed. Reg. 69161

Nov. 9, 2015

Department of the Interior

Yes

81. Fed. Reg. 5658

Feb. 3, 2016

Department of Energy

No

i

81 Fed. Reg. 5969

Feb. 4, 2016

Department of Education

Yes

81 Fed. Reg. 20265

Apr. 7, 2016

Department of
Transportation

No

81 Fed. Reg. 24158

Apr. 26, 2016

Department of
Transportation

Yes

81 Fed. Reg. 90843

Dec. 15, 2016

Environmental Protection
Agency

Yes

ii