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Deborah Dalton, Elena Gonzalez, and Patrick Field

EPA, DOI, CBI

Overview - Negotiated Rulemaking

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Negotiated Rulemaking ActPurpose

The purpose of this subchapter is to establish a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title, to encourage agencies to use the process when it enhances the informal rulemaking process. Nothing in this subchapter should be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law

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Negotiated Rulemaking ActDetermination of Need

• There is a need for a rule• Limited # of identifiable interests significantly

affected• Balanced representation can be reasonably

expected• Reasonable expectation consensus can be reached

within a timeframe• Will not unreasonably delay promulgation of a rule • The agency has the resources to support the

process• The agency, within legal obligations will use any

consensus “as the basis for the rule”

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Negotiated Rulemaking Context

• Augments, does not replace, the Agency’s rulemaking process

• Rule must still go through normal Agency and administration review processes

• Rule must still comply with other applicable statutes and executive orders

• Draft rule is still subject to appropriate environmental and other reviews (GSA and FACA, OMB, and EIS or EIR requirements)

• Lead agency still required to fulfill consultation obligations with other agencies (i.e., FWS and ESA).

• Rule still is subject to public comment per the APA • If agreement is not reached, agency proceeds with its own

rule.

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Negotiated Rulemaking Governing Statutes and Policies

• Negotiated Rulemaking Act 1996• Administrative Dispute Resolution Act

1996• EPA Alternative Dispute Resolution

Policy 2000• Federal Advisory Committee Act

(FACA)

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History

• 1982 ACUS recommends agencies experiment with technique

• 1983 FAA and US EPA initiate pilots• 1990 Congress enacts Negotiated

Rulemaking Act• 1996 Congress reauthorizes as part of

APA

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DOI Rulemaking Process1. Consult with bureau and Department regulatory contact in

Exec. Sec. and SOL2. Prepare regulatory alert form and record of compliance, add to

semiannual agenda and OMB list3. Develop draft rule and preamble in consultation with reg contacts and

SOL4. Circulate for review, surnaming, and signature (within bureau and to

SOL and Exec. Sec. )5. Forward to Exec. Sec. to obtain Chief of Staff approval once rule is

signed and ready to go forward to either OMB or Federal Register6. Send to OMB, if necessary 7. Publish rule in Federal Register8. Analyze public comments and repeat steps 3 through 7 to prepare

final rule

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Program Office

Steering Committeeand AO Approval

Workgroup (Tiers 1 & 2) Lead Office (Tier 3)

Assign to Tier 1, 2, or 3• Analysis • Alternatives • Selection • Rule writing • Consultation (State, local, etc.)

OMB Review (when necessary)

Federal Register Publication Workgroup Analyzes Public Comment

The Administrator

Workgroup: Tier 1 & 2

If Tier 3 Final Agency Review Meeting ( Tiers 1 & 2)

Or

EPA Rulemaking Process

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Negotiated Rulemaking Process

Before During After

• Agency interest in Reg Neg

•Select facilitator

•Conduct convening assessment

•Plan & organize the process

•Obtain FACA charter

• Identify & invite participants

•Assemble, analyze, agree on data

•Consult constituents

•Construct and analyze options

•Constituent ratification

•Finalize agreement

•Final Agency Review

•OMB Review

•Administrator signs

•NPRM Published

•Public comment

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GENERAL REQUIREMENTS OF FACA

• Obtain a charter

• Maintain a balanced membership

• Hold open public meetings

• Allow the public to speak or file written statements

• Announce all meetings in the Federal Register

• Keep minutes or summaries

• Maintain all committee documents for public inspection

• Committees may form workgroups, however, workgroups

cannot give advice and recommendations directly.

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Claims for Negotiated Rulemaking

• Avoids or reduces litigation• Expands agency’s understanding of diverse

interests and information• Reduces the time for rulemaking• Builds political support• Produces more creative, tailored rules that

are better understood • Results in improved compliance or easier

implementation

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Criticisms of Negotiated Rulemaking

• Usurps agency’s authority and responsibility to decide and act

• Leaves out under-represented or hard to represent constituents

• Is slow, complex, difficult to administer, and resource and time intensive

• Does not save time nor money• Does not reduce litigation

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Helpful Websites

• www.doi.gov/cadr(DOI Office of Collaborative Action and Dispute Resolution)

• www.doi.gov/nps/policy• For the GSA final regulation implementing FACA:

www.gsa.gov• www.epa.gov/adr/regnegfactsheet (EPA Conflict Prevention & Resolution Center)• www.epa.gov/publicinvolvement

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Useful References

• Negotiated Rulemaking Sourcebook, 1995, Administrative Conference of the U.S. (contact: dalton.deborah@epa.gov)

• “Experienced Practitioner Offers Guidance to Participants in Negotiated Rulemaking” BNA’s Alternative Dispute Resolution Report, vol. 2, pp.62-64, 80-86. 1988 (also in Sourcebook, above.)