BEFORE THE
U.S. HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
June 27, 1996
Statement of Wilma B. Liebman
Deputy Director
Federal Mediation and Conciliation Service
2100 K Street, N.W.
Washington, D.C. 20427
Statement by
Wilma B. Liebman, Deputy Director
Federal Mediation and Conciliation Service
before the Subcommittee on Commercial and Administrative Law
of the
House Committee on the Judiciary
Mr. Chairman and Members of the Subcommittee:
It is my pleasure to be here to offer the strong support of the Federal Mediation and
Conciliation Service for the Negotiated Rulemaking Act of 1990 and its reauthorization in
consolidation with the Administrative Dispute Resolution Act. FMCS was created as an
independent agency by Congress in 1947 through enactment of the Taft-Hartley Act, which directed
the agency to provide voluntary mediation, facilitation, and arbitration services to labor and
management.
Since that time, our charter has been expanded by a variety of subsequent statutes, making
it the nation's premier body for the resolution of labor-management disputes and, of particular
importance here, a key entity providing alternative dispute resolution (ADR) services to other federal
and state agencies. FMCS is a neutral agency that performs no regulatory functions. Its services are
direct, voluntary, and customer driven. FMCS' work in alternate dispute resolution was expanded
by enactment of the ADR Act as well as the Negotiated Rulemaking Act of 1990, which is scheduled
to sunset on November 29, 1996.
In 1983, FMCS facilitated one of the earliest regulatory negotiations ever held with the
Federal Aviation Administration (FAA). Nicholas Fidandis, an experienced FMCS mediator, met
with representatives of labor, industry, consumers, and the FAA. Where three attempts to revise
flight and rest time requirements for domestic airlines using traditional procedures had failed, the
regulatory negotiation process allowed the parties to reach consensus on most issues within three
months. The final rule that emerged from the negotiations was uncontested. Since then, the FMCS
has assisted other agencies in the Negotiated Rulemaking process more than 20 times.
Our agency has continually expressed its support for the negotiated rulemaking process. In
May of 1989, Robert P. Baker, then Acting Director of the FMCS, testified before this body in favor
of the use of regulatory negotiations, under what was then the Negotiated Rulemaking Act of 1989.
In his testimony, he praised regulatory negotiation because it brings life to the rulemaking process,
allowing people to deal with other people rather than with paper. He noted that the coming together
of interested parties, whether or not they reach consensus, produces a greater scope of knowledge
and understanding.
Negotiated rulemaking, sometimes known as regulatory negotiation or "reg neg," is a
process for developing federal regulations by consensus. It is one of a range of consensus building
procedures used by agencies to supplement the informal rulemaking provisions of the
Administrative Procedure Act (APA), 5 U.S.C. 553. The APA's provisions require an agency to
give the public notice of a proposed rule and an opportunity to file comments.
Traditionally, most agencies implement regulations by drafting a proposal and then seeking
public comment on it before adopting a final rule. Under the reg-neg process, on the other hand,
public participation begins much earlier, as the proposed rule is developed. An agency that intends
to develop a regulation invites representatives of interests likely to be affected by the regulation to
work cooperatively with each other and the agency, by forming a committee to develop a consensus
draft of the text of a proposed regulation. To assist the committee in face-to-face negotiations, the
process uses a neutral facilitator, who aids all parties in reaching a consensus. The proposed rule is
subsequently offered to the public for comment under normal rulemaking procedures.
The reg-neg process encourages cooperative and creative problem solving. It promotes
public participation in agency rulemaking; and if consensus is reached, reg-neg can result in better
regulations, based on information known to all parties.
Federal agencies possess the authority to engage in negotiated rulemaking under their
enabling statutes and the Federal Advisory Committee Act, and a few agencies have used reg-neg
for more than a decade. However, prior to passage of the Negotiated Rulemaking Act of 1990, 5
U.S.C. 561-570, many agencies were not using it, at least in part because of their unfamiliarity
with the mechanics of the process and uncertainty about their authority to use reg-neg. The
Negotiated Rulemaking Act received strong bi-partisan support in Congress which began to
encourage more and more agencies to experiment with the process.
The Administration has strongly endorsed the use of negotiated rulemaking through
recommendations of the National Performance Review and the provisions of Executive Order
12866 (October 1993), which addressed procedures for regulatory planning and review. On the
same day that the President signed the Executive Order, he also issued a directive to heads of 18
departments and agencies to choose at least one rule for development through reg-neg. In the
year following, agencies starting new negotiated rulemaking procedures included the Health Care
Financing Administration, the Federal Railroad Administration, Federal Communications
Commission, Department of Housing and Urban Development, Department of the Interior, and
Department of Education. FMCS has had a very active role providing conveners and mediators
for several regulatory negotiations, such as for the Department of Transportation (railway safety
issues and automobile headlight emissions) and the Department of Housing and Urban
Development (vacant housing), as well as for a public policy process for the Federal Energy
Regulatory Commission (environmental issues related to the New Don Pedro Dam Project).
In March 1995, the President renewed his encouragement with a memorandum directing
agencies to identify rulemaking proceedings that could be converted to negotiated rulemakings.
By the end of 1995, eleven negotiated rulemakings had been completed. Today, over half a
dozen agencies are engaged in negotiated rulemaking including the National Park Service, the
Federal Highway Administration, Pension Benefit Guaranty Corporation, Department of
Housing and Urban Development and the Equal Employment Opportunity Commission.
As explained below, FMCS endorses the Administrative Conference's recommendations
as set out in its report to Congress, dated October 1995 at pages 31 and 32 (see attached). FMCS
agrees that the Negotiated Rulemaking Act of 1990 should be permanently reauthorized. This is
accomplished in S1224 Sec. 11(a) by repealing the sunset provision, Section 5 of the Negotiated
Rulemaking Act of 1990 (Public Law 101-648; 5 U.S.C. 561 note).
Sec. 11 (B) (a) of the Senate bill states that the President shall designate an agency or
designate or establish an interagency committee to facilitate and encourage agency use of
negotiated rulemaking. Either approach has merit. FMCS has over a decade of experience
assisting agencies with establishing and conducting negotiated rulemakings. It worked
extensively with the Administrative Conference, the agency formerly named in the Reg-Neg Act
of 1990, 5 U.S.C. 569, to provide training in negotiated rulemaking and to provide information
and assistance to agencies in forming a negotiated rulemaking committee and conducting
negotiations on a proposed rule.
Since the demise of the Administrative Conference in 1995, the FMCS has obtained
some of its resources and assumed much of that agency's ADR responsibilities. The FMCS
now serves as a clearinghouse of information to assist agencies in negotiated rulemaking. FMCS
also provides training to government personnel on the techniques and procedures of negotiation.
In the recent Senate and House versions of the ADR bill, FMCS was asked to assist in the
establishment of procedures to help agencies obtain the services of conveners or facilitators more
rapidly. These are all functions previously performed by the Administrative Conference.
Therefore, an interagency committee with permanent agency participants such as FMCS, as well
as rotating agency members, would facilitate and encourage agency use of negotiated
rulemaking.
Sec. 11 (B) (b) of the Senate bill amends 5 U.S.C. 569 (g) to provide a mechanism that
will allow agencies conducting negotiated rulemaking to make use of any private funds that may
be made available to support the process. FMCS fully endorses this amendment as it will lessen
the costliness of the reg-neg process and thus, encourage more agencies to consider its use.
FMCS also endorses the Conference's conclusion that negotiated rulemaking committees
established under the Negotiated Rulemaking Act should be exempted from provisions of the
Federal Advisory Committee Act (FACA) and supports the sense of the Senate bill on the same
issue. While the Administration supports the sense of the Senate bill on the same issue,
substantive legislation is not needed to carry this out because the Administration has already
exempted negotiated rulemaking from the FACA cap under an April 4, 1996, memo from the
OMB Director to the Heads of all Executive Departments and Agencies. This will expedite the
establishment of reg-neg committees and eliminate redundant administrative requirements
related to filing a committee charter under section 9 of the Federal Advisory Committee Act and
annual reporting requirements.
FMCS endorses measures in the Negotiated Rulemaking and other Acts that will expedite
the hiring of convenors and facilitators.
Lastly, FMCS agrees with the ACUS recommendation that Congress avoid placing
requirements in specific substantive statutes that agencies use negotiated rulemaking for
particular rules or programs. The determination whether or not to engage in a reg-neg should
depend on whether the affected interests are able to participate, the availability of resources, and
whether the procedure will be effective in the context of a specific proposed rule.
In conclusion, FMCS supports Congressional encouragement of negotiated rulemaking
through the reauthorization of the Negotiated Rulemaking Act of 1990. Mr. Chairman, thank
you for the opportunity to participate in this hearing and submit testimony for the record.
Appendix
Administrative Conference of the United States (ACUS), Building Consensus in Agency Rulemaking: Implementing the Negotiated Rulemaking Act: Report of the Administrative
Conference on the Agency Implementation of the Negotiated Rulemaking Act, October 1995.
Pritzker, David M. and Dalton, Deborah S., Negotiated Rulemaking Sourcebook, Administrative
Conference of the United States, September 1995.
Federal Mediation and Conciliation Service, Alternative Dispute Resolution (ADR) Activities,
1996.
WILMA B. LIEBMAN
Wilma B. Liebman was appointed Deputy Director of the Federal Mediation and
Conciliation Service (FMCS) in 1995. FMCS was created by Congress in 1947 as an
independent agency of the United States Government. Two hundred federal mediators located
around the nation provide voluntary mediation services in collective bargaining contract disputes
and train unions and management in cooperative processes to improve labor-management
relations.
As Deputy Director for National Office operations, Ms. Liebman is responsible for
overseeing five departments which support the work of field mediators, provide arbitration
services to the labor-management community, award grants to encourage labor-management
cooperation initiatives, and coordinate international affairs and alternative dispute resolution
programs. Her appointment was part of a restructuring of the Agency's leadership structure
which evolved from its long range strategic planning process. For the previous two years, she
served as Special Assistant to the Director.
Prior to joining FMCS in January 1994, Ms. Liebman was Labor Counsel for the
Bricklayers and Allied Craftsmen from 1990 to 1993, legal counsel to the International
Brotherhood of Teamsters for nine years, and a staff attorney with the National Labor Relations
Board from 1974 to 1980.
A native of Philadelphia, Pennsylvania, Ms. Liebman holds a B.A. from Barnard College
in New York City and a J.D. from the George Washington University Law Center.
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