FACT
SHEET
NEGOTIATED
RULEMAKING
WHAT
IS
A
RULE
?

A
rule
or
regulation
is
the
equivalent
of
an
operating
or
implementation
manual
for
a
part
of
a
statute
or
act
of
Congress.
A
rule
gives
those
subject
to
its
requirements
more
detailed
instructions
or
prohibitions
regarding
activities
that
are
addressed
by
the
statute.

HOW
ARE
RULES
USUALLY
WRITTEN?

Generally
a
federal
agency's
staff
drafts
the
text
of
a
proposed
rule.
After
circulation
and
comment
within
the
agency,
the
rule
will
be
printed
in
the
Federal
Register
as
a
proposed
rule.
The
public
is
then
invited
to
comment
on
the
rule.
After
reading
and
analyzing
the
public's
comment
the
agency
may
revise
the
rule
to
incorporate
suggestions
or
eliminate
problems
identified
as
a
result
of
the
analysis.
The
rule
is
then
published
in
final
form
in
the
Federal
Register
and
becomes
effective
on
the
date
listed
in
the
notice.
It
is
then
incorporated
into
the
government's
Code
of
Federal
Regulations,
which
lists
all
currently
applicable
regulations.

WHAT
IS
NEGOTIATED
RULEMAKING?

Negotiated
rulemaking
is
a
process
which
brings
together
representatives
of
various
interest
groups
and
a
federal
agency
to
negotiate
the
text
of
a
proposed
rule.
The
goal
of
a
negotiated
rulemaking
proceeding
is
for
the
committee
to
reach
consensus
on
the
text
of
a
proposed
rule.

HOW
IS
NEGOTIATED
RULEMAKING
DIFFERENT?

In
a
negotiated
rulemaking
proceeding,
a
well­
balanced
group
representing
the
regulated
public,
community
and
public
interest
groups,
state
and
local
governments,
joins
with
a
representative
of
the
federal
agency
in
a
federally
chartered
advisory
committee
to
negotiate
the
text
or
the
outline
or
concept
of
a
rule
before
it
is
published
as
a
proposed
rule
in
the
Federal
Register.
If
the
committee
reaches
consensus
on
the
rule
then
the
federal
agency
can
use
this
consensus
as
a
basis
for
its
proposed
rule.
The
proposed
rule
is
still
subject
to
public
comment.
If
consensus
is
not
reached
then
the
agency
proceeds
with
its
normal
rulemaking
activities.

WHAT
ARE
THE
ADVANTAGES
OF
NEGOTIATED
RULEMAKING?

Federal
agencies
that
have
used
negotiated
rulemaking
have
identified
several
advantages
to
developing
a
rule
by
negotiation
before
notice
and
comment.
The
regulatory
negotiation
process
allows
the
interested,
affected
parties
a
more
direct
input
into
the
drafting
of
the
regulation,
thus
ensuring
that
the
rule
is
more
sensitive
to
the
needs
and
limitations
of
both
the
parties
and
the
agency.
Rules
drafted
by
negotiation
have
been
found
to
be
more
pragmatic
and
more
easily
implemented
at
an
earlier
date,
thus
providing
the
public
with
the
benefits
of
the
rule
while
minimizing
the
negative
impact
of
a
poorly
conceived
or
drafted
regulation.

Because
the
negotiating
committee
includes
representatives
of
the
major
groups
affected
by
or
interested
in
the
rule,
the
number
of
public
comments
is
reduced.
The
tenor
of
public
comment
is
more
moderate.
Fewer
substantive
changes
are
required
before
the
rule
is
made
final.
The
committee
can
draw
on
the
diverse
experience
and
creative
skills
of
the
members
to
address
problems
encountered
in
writing
a
regulation.
Often
the
group
together
can
propose
solutions
to
difficult
problems
that
no
one
member
could
have
thought
of
or
believed
would
work.

HOW
ARE
RULES
SELECTED
FOR
NEGOTIATED
RULEMAKING?

The
Negotiated
Rulemaking
Act
of
1996
suggests
a
number
of
criteria
(
see
attachment)
that
a
rule
should
meet
to
be
a
candidate
for
negotiated
rulemaking.
Generally,
the
federal
agency
conducts
an
internal
assessment
to
determine
its
own
interest
in
negotiating
a
rule.
If
it
determines
that
a
negotiation
is
a
possibility,
the
agency
retains
a
neutral
third
party
facilitator/
mediator
to
conduct
a
more
rigorous
assessment
of
the
feasibility.
This
assessment
involves
interviews
of
agency
management
and
staff
and
conversations
with
a
wide
range
of
organizations
and
individuals
who
might
be
affected
by
the
rule.
The
facilitator
will
analyze
the
information
gained
about
the
issues
and
the
parties
and
make
recommendations
to
the
agency
regarding
the
feasibility
of
negotiating
the
rule
and
suggestions
for
designing
the
negotiation
process.
The
agency
considers
the
results
of
the
feasibility
study
and
makes
a
decision
whether
to
proceed.

HOW
DOES
THE
PROCESS
WORK?

The
federal
agency
establishes
a
formal
advisory
committee
under
the
Federal
Advisory
Committee
Act.
A
balanced
mix
of
people
representing
the
range
of
affected
parties
is
invited
by
the
agency
to
participate.
Generally
committees
are
composed
of
between
12
and
25
members
representing
both
the
public
and
private
sectors.
A
neutral
facilitator
or
mediator
is
used
to
manage
its
meetings
and
assist
the
parties
in
discussions
and
reaching
an
agreement.

Meetings
are
announced
in
the
Federal
Register
(
and
sometimes
in
local
or
trade
press)
and
are
open
to
observation
by
members
of
the
public.
The
number
of
meetings
held
depends
on
how
complicated
the
rule
is
to
draft,
how
much
controversy
there
is
amongst
the
committee
members,
and
what
the
deadline
is
for
the
rule
to
be
published
and
implemented.

Generally
only
the
committee
members
speak
during
the
meetings,
although
provisions
are
made
for
input
by
members
of
the
audience.
Caucuses
can
be
called
by
committee
members
to
speak
with
their
constituency
or
with
other
members
of
the
committee,
caucuses
may
or
may
not
be
open
to
the
public
observers.
Workgroups
can
be
formed
by
committees
to
work
on
subsets
of
the
issues
posed
by
the
rule.

Decisions
are
generally
made
by
consensus,
not
by
majority
vote.
The
Committee
discusses
and
decides
upon
their
own
definition
of
consensus
prior
to
the
start
of
its
deliberations.
Often
the
consensus
is
generally
defined
as
an
agreement
by
all
parties
that
they
can
live
with
the
provisions
of
the
rule
when
taken
as
a
whole
package.

If
consensus
is
reached,
the
agency
will
use
it
as
a
basis
for
their
proposed
rule.
Committee
members
agree
to
support
the
rule
as
proposed
if
there
are
no
substantive
changes
from
the
consensus
agreement.

FOR
ADDITIONAL
INFORMATION
ON
REGULATORY
NEGOTIATION:

Negotiated
Rulemaking
Sourcebook,
1995,
Administrative
Conference
of
the
US;
written
and
edited
by
David
Pritzker
and
Deborah
Dalton.
Available
from
Deborah
Dalton
(
dalton.
deborah@
epa.
gov)
SELECTION
CRITERIA
for
NEGOTIATIONED
RULEMAKING
It
is
important
to
screen
potential
rulemakings
to
identify
instances
where
negotiation
of
the
rule
has
a
high
probability
of
success.
The
Negotiated
Rulemaking
Act
of
1996
and
past
EPA
experience
suggest
the
following
criteria
to
screen
and
select
appropriate
items.
An
item
need
not
meet
all
of
these
criteria
to
be
qualified
as
a
candidate.

Criteria
for
the
Item
o
The
proposal
should
require
the
resolution
of
a
limited
number
of
interdependent
or
related
issues,
none
of
which
involve
fundamental
questions
of
value,
or
extremely
controversial
national
policy.

o
The
policy
implications
of
the
issues
to
be
resolved
are
more­
or­
less
limited
programmatically,
i.
e.,
the
rulemaking
will
not
establish
binding
precedents
in
program
areas
not
encompassed
by
the
negotiations.

o
There
must
be
a
sufficiently
well­
developed
factual
base
to
permit
meaningful
discussion
and
resolution
of
the
issues.

o
There
should
be
several
ways
in
which
the
issues
can
be
resolved.

o
There
should
be
a
firm
deadline
imposed
upon
the
negotiations
by
EPA
due
to
some
statutory,
judicial
or
programmatic
mechanism.
The
deadline
should
provide
adequate
time
for
negotiation
of
the
issues.

o
Any
ongoing
litigation
does
not
inhibit
the
parties'
willingness
or
ability
to
engage
in
genuine
give­
and­
take.

Criteria
for
the
Participants
o
Those
participants
interested
in
or
affected
by
the
outcome
of
the
development
process
should
be
readily
identifiable
and
relatively
few
in
number.
Participants
should
be
able
to
represent
and
reflect
the
interests
of
their
constituencies.

o
The
parties
should
have
some
common
goals.
They
should
be
in
good
faith
about
wanting
to
participate
in
negotiations.
They
should
feel
themselves
as
likely,
if
not
more
likely,
to
achieve
their
overall
goals
using
negotiations
as
they
would
through
traditional
rulemaking.

o
Some
of
the
parties
should
have
common
positions
on
one
or
more
of
the
issues
to
be
resolved
which
might
serve
as
a
basis
for
agreement
during
the
course
of
negotiations.

o
The
parties
should
view
themselves
as
having
an
ongoing
relationship
with
the
Agency
beyond
the
item
under
consideration.
