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INTRODUCTION TO NEGOTIATED RULEMAKING

INTRODUCTION TO NEGOTIATED RULEMAKING. FEDERAL MEDIATION AND CONCILIATION SERVICE. TRADITIONAL RULEMAKING. Agency develops a proposed regulation Notice of Proposed Rulemaking (NPRM) is published in the Federal Register

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INTRODUCTION TO NEGOTIATED RULEMAKING

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  1. INTRODUCTION TO NEGOTIATED RULEMAKING FEDERAL MEDIATION AND CONCILIATION SERVICE LSylvester

  2. TRADITIONAL RULEMAKING • Agency develops a proposed regulation • Notice of Proposed Rulemaking (NPRM) is published in the Federal Register • The public is invited to submit written comments to the agency (usually, within 60 days) • Agency considers written comments • Agency publishes final rule in Federal Register LSylvester

  3. NEGOTIATED RULEMAKING • Brings affected parties together to discuss and negotiate the content of a NPRM LSylvester

  4. KEY LEGAL REQUIREMENTS • Negotiated Rulemaking Act of 1996 • encourages use of reg-neg • directs agencies and reg-neg committees to use consensus to the maximum extent possible consistent with law • sets forth notice requirements for forming a reg neg committee LSylvester

  5. KEY LEGAL REQUIREMENTS • Administrative Dispute Resolution Act of 1996 • amends the Administrative Prorcedure Act to explicitly state that use of ADR processes is voluntary • authorizes FMCS to make its services available to Federal government agencies • provides for neutral third party confidentiality LSylvester

  6. HOW IS REG-NEG DIFFERENT? • Traditional rulemaking process provides little opportunity for direct interchange of views among affected parties • Written comments to NPRM often give agencies little clue as to the relative importance of the various issues LSylvester

  7. HOW IS REG-NEG DIFFERENT? • Traditional process may encourage extreme positions in comments to better position the party for press coverage or legal challenges • There is little opportunity to recognize the viewpoints of others affected by the rulemaking LSylvester

  8. HOW DOES REGNEG AVOID THIS? • Affected parties are brought together for face to face negotiations with the assistance of a skilled neutral facilitator • Avoids pitfalls of traditional rulemaking-- litigation, lengthy delay, impasse, vicious bickering or endless proposals LSylvester

  9. ADVANTAGES OF REG-NEG • Parties directly affected help shape substance of rule • Agency has better understanding of concerns faced by constituents • Parties gain better understanding of the technical aspects of regulated subject • Reduced litigation LSylvester

  10. DISADVANTAGES OF REG-NEG • Heavy up-front costs • Significant commitment of time • Consensus may not be reached • Not all affected interests may be able to participate LSylvester

  11. BALANCING OF INTERESTS NO ADVERSE COMMENTS AGENCY PUBLISHES CONSENSUS REG NEG PROCESS LSylvester

  12. HOW DOES REG-NEG BEGIN? • Agency (sometimes with the assistance of neutral convenors) identify potential committee members who --if they are willing to participate-- believe a consensus is possible; • The agency assembles a committee of all affected interests to negotiate an acceptable rule LSylvester

  13. KEY LEGAL REQUIREMENTS • Federal Advisory Committee Act • requires that all meetings be open to the public • provides that interested persons may appear before or file statements with the Committee • requires that Committee records, working papers, studies, agenda, etc.. be available for public inspection • requires that minutes of each meeting be made LSylvester

  14. KEY LEGAL REQUIREMENTS • GSA REGULATIONS IMPLEMENTING FACA • Agency responsibilities: • Charter A Federal Advisory Committee • Maintain Meeting Minutes • Federal Register Notices: • establishment of a FACA Committee • meeting times and location LSylvester

  15. THE ROLE OF CONSENSUS IN REG-NEG • Committee members agree to use consensus decision making • If consensus is reached, agency agrees to publish it in a NPRM • If committee fails to reach consensus, the process should narrow the issues in dispute, rank priorities and identify potentially acceptable solutions LSylvester

  16. NEGOTIATED RULEMAKING ACT OF 1996 • 562.“CONSENSUS”: • means unanimous concurrence among the interests represented on a negotiated rulemaking committee established under this subchapter, unless such committee • agrees to define such term to mean a general but not unanimous concurrence; or • agrees upon another specified definition (italics added for emphasis) LSylvester

  17. CONSENSUS DECISION MAKING DEFINITION: A decision which all members of a group can agree upon. The decision may not be everyone’s first choice, but they have heard it and everyone can live with it. PROCESS: The group must agree to work together until they find a solution that doesn’t compromise strong convictions or needs. 17

  18. WHY CONSENSUS DECISION MAKING? BUILDS GROUP UNITY MAXIMIZES GROUP INPUT ACHIEVES COMMITMENT & SATISFACTION IMPROVES RELATIONSHIPS 18

  19. A Working Definition of Consensus 70% COMFORTABLE 100% COMMITTED 19

  20. ROLE OF THE FACILITATOR/MEDIATOR • Guide discussions • Coach • Moderate the process • Clarify issues and interests • Assist in generating options • Private discussions LSylvester

  21. THE FIRST MEETING • Introductions, overview of process • Adopt ground rules/protocols • Adopt negotiation process • Identify issues for negotiation LSylvester

  22. ESTABLISHING THE GROUND RULES • Objective of committee • Committee participation • Committee membership • Withdrawal/removal procedures • Decision making LSylvester

  23. ESTABLISHING THE GROUND RULES • Agreements • Choice of facilitators • Facilitator roles and responsibilities • Meetings • Safeguards for parties LSylvester

  24. SUBSEQUENT MEETINGS • Members discuss/debate issues • Committee/non-committee presentations • Establish working groups to work on specific tasks during or between formal meetings • Reach consensus on points to be included in the regulation LSylvester

  25. FACILITATORS MEET WITH SUB- GROUPS TO IRON OUT DIFFERENCES LSylvester

  26. BETWEEN MEETINGS • Committee members digest meeting materials, deliberations, consult with constituents • Working groups meet LSylvester

  27. Finally… • The agency publishes the consensus as: • A Notice of Proposed Rulemaking • Notice of an Interim Final Regulation • Follows the procedures of the Administrative Procedures Act to finality • With no consensus the agency publishes its own Notice of Proposed Rulemaking LSylvester

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