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Negotiated Rulemaking



Negotiated Rulemaking: Negotiated rulemaking is an administrative procedure sanctioned by the Negotiated Rulemaking Act of 1996. An agency promulgating a new or revised regulation or rule convenes a representative set of stakeholders to negotiate the rule or regulation prior to moving the draft rule through the standard Administrative Procedures Act (APA) process.

Form: Negotiated rulemaking typically involves establishing a Federal Advisory Committee Act (FACA) of diverse stakeholders whose purpose is to jointly develop a rule or regulation. Negotiated rulemaking usually involve a negotiating committee of members selected through a fair and balanced process and noticed in the Federal Register, a charter, a statement of need, and a set of ground rules that describes how the group will make decisions, the roles and responsibilities of the federal agency and participants, and how the process relates to formal, final rulemaking.

Required: No.

Number of Participants : In negotiated rulemaking, the agency appoints and identifies and appoints a limited, specific number of individuals who can represent the views of their stakeholding group on the negotiating committee. Most committees include twenty (20) to thirty (30) participants, though some may include as many as fifty (50). Additional participation may include appointment of alternates, use of subcommittee where membership is not constrained, and a period during each negotiating session for the general public to comment.

Kinds of Participants: Negotiated rulemaking is usually geared toward both government and non-government stakeholders, be that other bureaus, other federal, state, and local agencies and governments, private industry, local governments, and/or NGOs.

Principles: Negotiated rulemaking strategies must adhere to such federal guidelines as the Negotiated Rulemaking Act of 1996, Administrative Dispute Resolution Act of 1996 and the Federal Advisory Committee Act (FACA). FACA requires negotiated rulemakings to have a clear charter, maintain a balanced membership, publicly notice and hold public meetings (though private caucuses can be called from time to time), and keep minutes of the meeting.

Intent : Negotiated Rulemaking strategies are agreement seeking. By entering in Negotiated Rulemaking, the agency commits, within its existing rules, regulations, and guidelines, to draft new or revised regulations consistent with the recommendations of the negotiating committee IF the committee reaches agreement (as defined in the committee’s ground rules). Negotiated rulemaking is a formalized, specific kind of consensus building.