Negotiated Rulemaking - Procedure

Procedure

Usually, an agency is not mandated to use negotiated rulemaking, but does so by choice. Its decision to use negotiated rulemaking is not subject to review by the courts. An agency can publish a proposal adopted by its negotiating committee, but the Negotiated Rulemaking Act does not require it.
The decision to use negotiated rulemaking is based on a number of factors, including whether it is likely that a balanced committee can be formed and whether it is reasonable to believe that the committee will reach a consensus recommendation for a proposed rule. The agency's resources are also considered.
The use of a convener to determine the feasibility of undertaking a negotiated rulemaking is authorized under the Negotiated Rulemaking Act. A convener may also recommend a list of stakeholder representatives for participation on the reg neg advisory committee. Sometimes, the agency compiles its own list. Regardless, the proposed advisory committee members and the issues to be negotiated are published in the Federal Register and subject to public comment. People who feel they are under-represented on the committee can request membership.
Reg Negs are facilitated by a public policy mediator. Once established under the Federal Advisory Committee Act, the committee prepares a set of ground rules, which include the committee's deadline, mission, responsibilities, commitments, and a decision rule or definition of consensus. A final list of the issues to be negotiated is also created, and negotiators are provided with relevant background materials. With the public policy mediator providing focus and managing the negotiations, the committee discusses each issue striving for agreements in concept, which government staff draft as regulatory text. This draft text is reviewed and revised until a tentative consensus agreement is reached. If an early consensus cannot be reached, the drafting team outlines multiple options discussed. When tentative agreements are reached on all issues, the agreements are checked for consistency before final consensus is achieved. Negotiated rulemaking typically takes six months to a year and involves multi-day meetings approximately once a month.