What is Negotiated Rulemaking? Center for Public Policy Dispute Resolution The University of Texas School of Law

SPECTRUM OF DECISION-MAKING & PUBLIC PARTICIPATION PROCESSES Decision by Vested Power Alone Decision with Minimal Input Decision with Substantive Input Stakeholder Recommendation By Consensus Stakeholder Decision Making Less Public Involvement…………………………………………More Public Involvement No Public Input or Involvement Public Hearing(s) For Comment on Proposed Action or Policy Series of Public Involvement Events with Targeted Groups and/or General Public Direct Negotiations Among Key Stakeholder Groups Stakeholder Negotiations Leading to Implementable Decision CDR Associates, Boulder, CO

Public Hearings/Meetings: Traditional Flow of Communication

Different Flow of Communication

Negotiated Rulemaking – Texas Gov’t Code, Chap A consensus-based approach to drafting a proposed regulation that brings together representatives of the governmental body and the various affected interests to negotiate towards consensus on the text of a proposed regulation or policy.

The Six Steps of Negotiated Rulemaking 1. Agency staff assessment of initial suitability of reg- neg 2. “Convener” conducts external assessment of feasibility Objectively assess issues and potential membership Produce convener’s report and recommendation Agency decision to go forward or not Publish public notice as required by section if going to conduct reg-neg. 3. Agency appoints negotiated rulemaking committee & appoints facilitator

The Six Steps of Negotiated Rulemaking (continued) 4. Negotiate towards consensus proposed rule 5. Transmit final report to the agency Consensus reached: Transmit proposed rule or outline Partial consensus: Report areas of consensus/info gained No consensus: Report information gained 6. Publish rule along with notice that negotiated rulemaking was used to adopt rule

What is a Consensus Process?  A process in which affected and interested stakeholders engage in discussions and negotiations  with the purpose of reaching a decision that everyone can live with

Who is a Stakeholder?  Affected and/or Interested Groups or Individuals  Groups or Individuals that Can Impact the Result (either positively or negatively)

Negotiating Toward Consensus  Identify Issues  Generate Options  Evaluate Options  Inform Constituency/Obtain Input

Developing an Agreement  Drafting by subcommittee  Constituency Input  Committee Review and Decision  Report to Agency

A CONSENSUS PROCESS IS MORE LIKELY TO BE APPROPRIATE WHEN...  The issues are of high priority and a decision is needed.  The issues are identifiable and negotiable.  The issues do not focus primarily on constitutional rights or fundamental values.  The interests are identifiable and it is possible to find representatives for them.  The outcome is genuinely in doubt.

A CONSENSUS PROCESS IS LESS LIKELY TO BE APPROPRIATE WHEN...  Need judicial precedent to clarify the law or guide future conduct.  Lower level of concern about the issue.  An emergency: the situation does not allow time for negotiation.  The community is so polarized that face-to-face discussions are not possible.  Negotiations will substantively affect persons who cannot be effectively represented.

Why Use Negotiated Rulemaking?  Greater public involvement  Superior access to information  Improve stakeholder-agency relationships  Increase compliance/reduce enforcement actions  Superior rules on technical matters  “Reality check” for government and stakeholders  Fewer court, political challenges to a rule