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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

INTRODUCTION TO NEGOTIATED RULEMAKING

FEDERAL MEDIATION AND CONCILIATION SERVICE

LSylvester


Traditional rulemaking
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


Negotiated rulemaking
NEGOTIATED RULEMAKING

  • Brings affected parties together to discuss and negotiate the content of a NPRM

LSylvester


Key legal requirements
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


Key legal requirements1
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


How is reg neg different
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


How is reg neg different1
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


How does reg neg avoid this
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


Advantages of reg neg
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


Disadvantages of reg neg
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


Balancing of interests
BALANCING OF INTERESTS

NO ADVERSE COMMENTS

AGENCY PUBLISHES CONSENSUS

REG NEG PROCESS

LSylvester


How does reg neg begin
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


Key legal requirements2
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


Key legal requirements3
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


The role of consensus in reg neg
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


Negotiated rulemaking act of 1996
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


Consensus decision making
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.

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Why consensus decision making
WHY CONSENSUS DECISION MAKING?

BUILDS GROUP UNITY

MAXIMIZES GROUP INPUT

ACHIEVES COMMITMENT & SATISFACTION

IMPROVES RELATIONSHIPS

18


A Working Definition of Consensus

70% COMFORTABLE 100% COMMITTED

19


Role of the facilitator mediator
ROLE OF THE FACILITATOR/MEDIATOR

  • Guide discussions

  • Coach

  • Moderate the process

  • Clarify issues and interests

  • Assist in generating options

  • Private discussions

LSylvester


The first meeting
THE FIRST MEETING

  • Introductions, overview of process

  • Adopt ground rules/protocols

  • Adopt negotiation process

  • Identify issues for negotiation

LSylvester


Establishing the ground rules
ESTABLISHING THE GROUND RULES

  • Objective of committee

  • Committee participation

  • Committee membership

  • Withdrawal/removal procedures

  • Decision making

LSylvester


Establishing the ground rules1
ESTABLISHING THE GROUND RULES

  • Agreements

  • Choice of facilitators

  • Facilitator roles and responsibilities

  • Meetings

  • Safeguards for parties

LSylvester


Subsequent meetings
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



Between meetings
BETWEEN MEETINGS

  • Committee members digest meeting materials, deliberations, consult with constituents

  • Working groups meet

LSylvester


Finally
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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