Assessing Consensus: The Promise and Performance of Negotiated Rulemaking

Abstract

Negotiated rulemaking appears by most accounts to have come of age. A procedure that once seemed confined to discussion among administrative law scholars has in the past decade captured the attention of policymakers throughout the nation's capital. Congress officially endorsed regulatory negotiation in the Negotiated Rulemaking Act of 1990, and it permanently reauthorized the Act in 1996. Over the past few years, the executive branch has visibly supported regulatory negotiation, both through the Clinton administration's National Performance Review (NPR) and through specific presidential directives to agency heads. Congress has also begun to mandate the use of negotiated rulemaking by certain agencies in the development of specific regulations. As a result of these and other efforts, federal agencies have begun to employ the consensus-based process known as negotiated rulemaking.