An introduction to negotiated rulemaking.

AuthorPitt, Gregory L., Jr.
PositionAdministrative Law

Administrative rulemaking is a collaborative effort between the state and public undertaken in the interest of promulgating administrative rules. (1) Typically, this effort takes the form of what will be referred to herein as the traditional rulemaking process. This process mandates that public input, received in the form of comments offered at various forums and via written submissions, be considered by the promulgating agency as a rule progresses toward final adoption. (2) The traditional rulemaking process is an adequate vehicle for the promulgation of most rules. However, rules occasionally present challenges that the traditional process is ill-equipped to address. It is for these situations that the legislature has provided agencies with an alternative mechanism of rule promulgation: negotiated rulemaking.

What is Negotiated Rulemaking?

Negotiated rulemaking is the process by which an agency-appointed committee, consisting of both members of the public and agency personnel, negotiates in the interest of drafting a mutually acceptable rule. (3) Arguably, this process involves a greater level of direct public participation than its traditional counterpart. While both methods rely on public input, the majority of discourse regarding final rule language in the traditional context takes place among agency personnel behind closed doors. (4) This isn't meant to imply that the traditional rulemaking process lacks transparency, as the rulemaking records of all active rules must be maintained and open to public inspection pursuant to F.S. [section][section]120.54(8) and 119.07, but simply reflects the reality that, following the submission of public comments, it is ultimately the promulgating agency's task to determine the effect that such feedback will have on a rule's final language. (5)

In contrast to the traditional process, negotiated rulemaking invites interested members of the public, in both a figurative and literal sense, to take seats at the negotiating table. It is here that these individuals, typically representing different interested groups, negotiate among themselves and with agency personnel in an attempt to reach consensus on a rule's content. (6)

Circumstances of Utilization and Committee Selection

F.S. [section]120.54(2)(d) states that an agency "should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated." Following this initial determination, the agency "should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule."

It is important to note that negotiated rulemaking is never required to be used, no matter how complex or controversial the rules to be promulgated may appear. Conversely, nothing in the statute limits the use of this process. Therefore, an agency is free to use negotiated rulemaking as seldom or often as it deems necessary. In addition, based on the statute's permissive language, it doesn't appear that the legislature intended for the factors listed to be either mandatory or exhaustive, giving agencies the leeway to consider factors in addition to, or at the exclusion of, those detailed. However, agencies would be well-advised to take them into account, particularly in light of the case study below.

Mandatory Requirements and Additional Considerations

In contrast to the ostensibly permissive factors listed above, [section]120.54(2)(d) contains additional provisions that agencies are required to follow. The first of these requirements relates to the publication...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT