LSylvester1 INTRODUCTION TO NEGOTIATED RULEMAKING FEDERAL MEDIATION AND CONCILIATION SERVICE

LSylvester2 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

LSylvester3 NEGOTIATED RULEMAKING  Brings affected parties together to discuss and negotiate the content of a NPRM

LSylvester4 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

LSylvester5 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

LSylvester6 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

LSylvester7 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

LSylvester8 HOW DOES REG NEG 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

LSylvester9 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

LSylvester10 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

LSylvester11 BALANCING OF INTERESTS NO ADVERSE COMMENTS AGENCY PUBLISHES CONSENSUS REG NEG PROCESS

LSylvester12 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

LSylvester13 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

LSylvester14 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

LSylvester15 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

LSylvester16 NEGOTIATED RULEMAKING ACT OF 1996 §562. §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)

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. 17

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

LSylvester20 ROLE OF THE FACILITATOR/MEDIATOR  Guide discussions  Coach  Moderate the process  Clarify issues and interests  Assist in generating options  Private discussions

LSylvester21 THE FIRST MEETING  Introductions, overview of process  Adopt ground rules/protocols  Adopt negotiation process  Identify issues for negotiation

LSylvester22 ESTABLISHING THE GROUND RULES  Objective of committee  Committee participation  Committee membership  Withdrawal/removal procedures  Decision making

LSylvester23 ESTABLISHING THE GROUND RULES  Agreements  Choice of facilitators  Facilitator roles and responsibilities  Meetings  Safeguards for parties

LSylvester24 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

FACILITATORS MEET WITH SUB- GROUPS TO IRON OUT DIFFERENCES LSylvester25

LSylvester26 BETWEEN MEETINGS  Committee members digest meeting materials, deliberations, consult with constituents  Working groups meet

LSylvester27 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