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[introductory music]
Hello, I’m Allison Beck, Director of the Federal Mediation and Conciliation Service.
I’d like to introduce you to FMCS’s negotiated rulemaking services.
Whenever Congress passes a law, a government agency must issue regulations explaining how
the law will be enforced. The agency can either write the rule itself and then solicit public
comment or it can engage in a more collaborative process before writing the rule. This is called
“Negotiated Rulemaking.” This form of rulemaking gives everyone who might be impacted
by the rule – the stakeholders -- the chance to have meaningful input into the actual development
of the rule. Using this method can promote public engagement and better government decision-making.
The Negotiated Rulemaking Act of 1990 directed FMCS to offer its dispute resolution expertise
to bring together the regulators and those impacted by their regulations in a collaborative
process prior to the issuance of a new rule.
FMCS mediators use their professional conflict resolution skills to convene and facilitate
even the most complex, multi-party rulemakings and to help parties produce consensus rules.
This video will introduce you to the history, process and benefits of this collaborative
method for developing government regulations.
[transitional music]
And I’m Eileen Barkas Hoffman. Rulemaking is the process by which regulations are drafted.
Agencies with delegated administrative responsibility for the regulation and enforcement of legislation
attempt to ensure statutory compliance by drafting guidelines or “rules” for the
regulated public to follow.
However, an agency’s rule, once published, is subject to legal challenges by stakeholders
unhappy with the rule's impact.
Legal challenges are costly, and can create difficulties for the enforcement of the rule
and the stability of the statutory framework.
The Administrative Conference of the United States – or ACUS, is a federal agency tasked
with promoting efficiency, adequacy, and fairness in the procedures federal agencies use to
conduct regulatory programs.
To address the challenges and costs of litigation associated with traditional rulemaking, ACUS
in 1982, recommended that agencies consider collaborative methods of rulemaking. They
recommended a process called negotiated rulemaking which provides stakeholders with the opportunity
and incentives to resolve potential conflicts through negotiations, resulting in stronger
less litigation-prone rules.
Soon thereafter, the first negotiated rulemaking, often referred to as “reg-neg” was convened
and FMCS was asked to provide facilitation of the stakeholder committee negotiations.
FMCS Commissioner Nick Fadantis led the effort and helped the committee achieve consensus
on a rule involving the FAA and the Department of Transportation over flight and duty time.
Successful “reg-neg” outcomes led to the passage of legislation encouraging agencies
to use this collaborative rulemaking approach. The Negotiated Rulemaking Act of 1990, permanently
authorized in 1996, established a framework for conducting negotiated rulemaking and encouraged
agencies to use the process when it would enhance the informal rulemaking process.
The Act states that The Federal Mediation and Conciliation Service may provide services
and facilities to assist agencies using negotiated rulemaking by furnishing conveners, facilitators,
and training in negotiated rulemaking.
Since the passage of the Negotiated Rulemaking Act, FMCS has convened and facilitated numerous
rulemakings as well as public policy discussions. A recent landmark rulemaking for the Department
of Energy was one that will save 14.8 quads of energy - and that's a lot.
At this point, you might be asking by this point, what is a negotiated rulemaking? So
let’s start with the basics. The Administrative Procedure Act defines a
“rule” as the whole or part of an agency statement having future effect that is designed
to implement, interpret, or prescribe law or policy or describes an agency's organization,
procedure, or practice requirements.
A rulemaking is defined as “the process for formulating, amending, or repealing a
rule.”
In learning about the negotiated rulemaking process, it will be helpful to have an understanding
of the traditional rulemaking process.
In a “traditional rulemaking,” an agency drafts a rule internally and publishes a “Notice
of the Proposed Rule” in the Federal Register. This offers an opportunity for public comment.
After a comment period, the agency may consider the feedback received. The agency is not required
to incorporate any changes suggested during the comment period. However, the agency is
required to post a Notice of Final Rule, in the Federal Register.
Section 553e of the Administrative Procedures Act, provides that an “interested person
has the right to petition for the issuance, amendment, or repeal of a rule.”
This means that impacted interests may challenge a final rule resulting in costly litigation.
In contrast, in the negotiated rulemaking process an agency invites representatives
of potentially impacted stakeholder groups to participate in the drafting of the rule.
Interested parties and the involved agency negotiate a rule with the assistance of a
third party neutral. If the parties reach consensus on a recommended rule, the final
rule, when issued by the agency, often avoids costly litigation and delays.
The negotiated rulemaking process typically occurs early in the rulemaking.
Prior to issuing a notice of proposed rule, an agency will convene a stakeholder group
as we previously discussed. This group will negotiate and hopefully reach consensus on
the outline of a proposed rule. The proposed rule will then be posted in the Federal Register.
After the public comment period, the agency will incorporate changes as it sees fit,
and publish a final rule.
It is important to view negotiated rulemaking in the proper context. It is not always the
appropriate process. Also, when the negotiated rulemaking process is utilized, the public
maintains the same rights it has during a traditional rulemaking.
Also, it is important to note, that the negotiated rulemaking process may augment, but not replace
an agency’s internal rulemaking processes or rulemaking authority.
Transparency is a key factor in the rulemaking process. Along with the Federal Register notices
required in the traditional rulemaking process, during a regulatory negotiation notices of
intent to form a committee, the selection of the committee, and meeting dates are also
required.
Any rule reached by consensus during a regulatory negotiation, must still comply with applicable
statutes and executive orders.
And as previously mentioned, the rule is still subject to public comment as is required by
the Administrative Procedures Act.
Finally, if a regulatory negotiation committee is unable to achieve consensus on all or part
of the rule, the agency retains the right to and generally will proceed in drafting
its own rule.
Hi. My name is Javier Ramirez, Director of Field Programs and Innovation. So what does
the actual process of negotiated rulemaking look like?
First, a decision is made to utilize the negotiated rulemaking process. This may be a voluntary
agency decision, or it may be required by a statute.
The agency then posts a notice of intent to form a negotiated rulemaking committee to
begin the process of assembling a Stakeholder Committee.
A “convening” process follows where the committee is selected to ensure a wide breadth
of stakeholder representation, reducing the probability of a post-rule challenge.
FMCS may be brought in to oversee and conduct the convening process. Otherwise, the FMCS
may join the process after the convening is complete.
After an initial consultation with the agency’s point of contact, the terms of an inter-agency
agreement are drawn up.
In accordance with the Negotiated Rulemaking Act, the “reg-neg” Committee must then
approve the selection of FMCS mediators as facilitators.
With the assistance of the committee and the Agency, decisions are then made about location
of the negotiations, dates, the use of technology, and the need for Administrative support.
The committee must be prepared to effectively engage in the “reg-neg” process.
In some cases, FMCS provides training on interest-based negotiations and the negotiated rulemaking
process to the Committee.
Prior to negotiations commencing, the first order of the committee is to draft and adopt
ground rules for the negotiation.
Perhaps the most critical ground rule is how the group will define consensus. The Negotiated
Rulemaking Act states that “consensus” is defined as unanimous committee agreement,
“unless such committee (A) agrees to define such term to mean a general but not unanimous
concurrence; or (B) agrees upon another specified definition.”
Therefore, the committee must determine in its ground rules whether to accept the premise
of unanimous concurrence or whether they prefer a different definition.
Because negotiated rulemaking involves a significant number of participants with varied interests,
a multi-party dynamic exists that benefits from the skilled and highly active facilitation
by FMCS mediators.
Complex issues are discussed and data sharing is essential so that all stakeholders can
engage in the process.
The presence and use of subject-matter experts is common in the process.
And the group, under the skillful guidance of an FMCS facilitator, will move through
the negotiation process identifying information and interests that impact the resulting rule.
Between meetings, participants are often charged with tasks to complete or information to gather.
Electronic communication between the parties and the agency is coordinated by the facilitators
to ensure that all stakeholders remain engaged.
If the committee is able to reach consensus on a conceptual agreement, a process of drafting
a term sheet that may become the basis of the agency's proposed rule begins.
Once a proposed rule is drafted and agreed upon, it is posted in the Federal Register
for public comment.
As you can see, there are many reasons to
use the negotiated rulemaking process.
First, the process allows for direct stakeholder input into the drafting of a rule.
The public’s right to be involved in the rulemaking process is preserved through the
notice and comment period required by the Administrative Procedure Act.
And greater stakeholder input during the creation of the rule translates to less stakeholder
resistance to a published rule, reducing litigation costs and promoting better government decision-making.
[transitional music]
In this process, FMCS mediators use their skills as third-party neutrals to provide
a framework and process for all affected parties to identify issues and overcome barriers to
achieving a consensus rule.
In Negotiated Rulemaking, FMCS mediators bring together or “convene” all interested stakeholders
in a safe and structured environment, where they facilitate discussions between and among
diverse groups of stakeholders.
With a facilitator’s guidance, all parties can reach consensus on a regulation before
it's issued.
Thank you for watching. We would be happy to meet with you to provide additional information
about Negotiated Rulemaking and to introduce you to some of the agencies that have successfully
used this process.
For more information about FMCS services, please visit our website at www.fmcs.gov or
follow us on Facebook and Twitter.
Thank you.
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