Negotiated Rulemaking
WHAT is A RULE?
A rule or regulation is the equivalent of an operating or
implementation manual for a part of a statute or act of
Congress. A rule gives those subject to its requirements more
detailed instructions orprohibitions regarding activitiesthat are
addressed by the statute.
How ARE RULES USUALLY WRITTEN?
Generally a federal agency's staff drafts the text of a proposed
rule. After circulation and comment within the agency, the rule
will be printed in the Federal Register as a proposed rule. The
public is then invited to comment on the rule. After reading and
analyzing the public' s commentthe agency may revise the rule
to incorporate suggestions or eliminate problems identified as
a result of the analysis. The rule is then published in final form
in the Federal Register and becomes effective on the date
listed in the notice. It is then incorporated into the government's
Code of Federal Regulations, which lists all currently applicable
regulations.
WHAT is NEGOTIATED RULEMAKING?
Negotiated rulemaking is a process which brings together
representatives of various interest groups and afederal agency
to negotiate the text of a proposed rule. The goal of a
negotiated rulemaking proceeding is for the committee to
reach consensus on the text of a proposed rule.
How is NEGOTIATED RULEMAKING DIFFERENT?
In anegotiated rulemaking proceeding, a well-balanced group
representing the regulated public, community and public interest
groups, state and local governments, joins with arepresentative
of the federal agency in a federally chartered advisory
committee to negotiate the text or the outline or concept of a
rule before it is published as a proposed rule in the Federal
Register. If the committee reaches consensus on the rule then
the federal agency can use this consensus as a basis for its
proposed rule. The proposed rule is still subject to public
comment. If consensus is not reached then the agency
proceeds with its normal rulemaking activities.
WHAT ARE THE ADVANTAGES OF NEGOTIATED
RULEMAKING?
Federal agencies that have used negotiated rulemaking have
identified several advantages to developing a rule by negotiation
before notice and comment. The regulatory negotiation
process allows the interested, affected parties a more direct
input into the drafting of the regulation, thus ensuring that the
rule is more sensitive to the needs and limitations of both the
parties and the agency. Rules drafted by negotiation have
been found to be more pragmatic and more easily implemented
at an earlier date, thus providing the public with the benefits of
the rule while minimizing the negative impact of a poorly
conceived or drafted regulation.
Because the negotiating committee includes representatives
of the major groups affected by or interested in the rule,
the number of public comments is reduced. The tenor of
public comment is more moderate. Fewer substantive
changes are required before the rule is made final.
The committee can draw on the diverse experience and
creative skills of the members to address problems
encountered in writing a regulation. Often the group
together can propose solutions to difficult problems that no
one member could have thought of or believed would work.
How ARE RULES SELECTED FOR NEGOTIATED
RULEMAKING?
The Negotiated Rulemaking Act of 1996 suggests anumber of
criteria (see attachment) that a rule should meet to be a
candidate for negotiated rulemaking. Generally, the federal
agency conducts an internal assessment to determine its own
interest in negotiating a rule. If it determines that anegotiation
is apossibility,the agency retains aneutral third party facilitator/
mediator to conduct a more rigorous assessment of the
feasibility. This assessment involves interviews of agency
management and staff and conversations with a wide range of
organizations and individuals who might be affected by the
rule. The facilitator will analyze the information gained about
the issues and the parties and make recommendations to the
agency regarding the feasibility of negotiating the rule and
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suggestions for designingthe negotiation process. The agency
considers the results of the feasibility study and makes a
decision whether to proceed.
How DOES THE PROCESS WORK?
The federal agency establishes a formal advisory committee
under the Federal Advisory Committee Act. A balanced mix
of people representing the range of affected parties is invited
by the agency to participate. Generally committees are
composed of between 12 and 25 members representing both
the public and private sectors. A neutral facilitator or mediator
is used to manage its meetings and assist the parties in
discussions and reaching an agreement.
Meetings are announced in the Federal Register (and sometimes
in local ortrade press) and are open to observation by members
of the public. The number of meetings held depends on how
complicated the rule is to draft, how much controversy there
is amongst the committee members, and what the deadline is
for the rule to be published and implemented.
Generally only the committee members speak during the
meetings, although provisions are made for input by members
of the audience. Caucuses can be called by committee
members to speak with their constituency or with other
members of the committee, caucuses may or may not be open
to the public observers. Workgroups can be formed by
committees to work on subsets of the issues posed by the rule.
Decisions are generally made by consensus, not by majority
vote. The Committee discusses and decides upon their own
definition of consensus prior to the start of its deliberations.
Often the consensus is generally defined as an agreement by
all parties that they can live with the provisions of the rule when
taken as a whole package.
If consensus is reached, the agency will use it as a basis for
their proposed rule. Committee members agree to support the
rule as proposed if there are no substantive changes from the
consensus agreement.
FOR ADDITIONAL INFORMATION ON REGULATORY
NEGOTIATION:
Negotiated Rulemaking Sourcebook, 1995, Administrative
Conference of the US; written and edited by David Pritzker
and Deborah Dalton. Available from Deborah Dalton
(dalton .deborahfglepa. go v)
SELECTION CRITERIA FOR NEGOTIATED RULEMAKING
It is important to screen potential rulemakings to identify
instances where negotiation of the rule has a high probability
of success. The Negotiated Rulemaking Act of 1996 and past
EPA experience suggest the following criteria to screen and
select appropriate items. An item need not meet all of these
criteria to be qualified as a candidate.
CRITERIA FOR THE ITEM
• The proposal should require the resolution of a limited
number of interdependent or related issues, none of which
involve fundamental questions of value, or extremely
controversial national policy.
• The policy implications of the issues to be resolved are
more-or-less limited programmatically, i.e.,the rulemaking
will not establish binding precedents in program areas not
encompassed by the negotiations.
• There must be a sufficiently well-developed factual base
to permit meaningful discussion and resolution of the
issues.
There should be several ways in which the issues can be
resolved.
• There should be a firm deadline imposed upon the
negotiations by EPA due to some statutory, judicial or
programmatic mechanism. The deadline should provide
adequate time for negotiation of the issues.
• Any ongoing litigation does not inhibitthe parties' willingne ss
or ability to engage in genuine give-and-take.
CRITERIA FOR THE PARTICIPANTS
• Those participants interested in or affected by the outcome
of the development process should be readily identifiable
and relatively few in number. Participants should be able
to representand reflectthe interests oftheir constituencies.
• The parties should have some common goals. They should
be in good faith about wanting to participate in negotiations.
They should feel themselves as likely, if not more likely, to
achieve their overall goals using negotiations as they
would through traditional rulemaking.
Some of the parties should have common positions on one
or more of the issues to be resolved which might serve as
a basis for agreement during the course of negotiations.
The parties should view themselves as having an ongoing
relationship with the Agency beyond the item under
consideration.
EPA
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