Current through Register Vol. 46, No. 39, September 25, 2024
WHEREAS, negotiated rule making is a process which reflects
an agency's recognition that regulatory objectives, consistent with legislative
directives, can be accomplished in more that one way;
WHEREAS, negotiated rule making brings together the
regulating agency and regulated and other interested parties during the
developmental stages of a rule to negotiate and resolve potential problems with
the rule making in order to implement a rule acceptable to all interested
parties, avoid delay in implementation and reduce litigation, while ensuring
that the agency carries out its statutorily mandated responsibilities;
WHEREAS, negotiated rule making may improve the substance
of proposed rules and shorten the length of time needed to implement final
rules, thereby effectuating legislative purposes and aiding in the prompt
delivery of governmental services; and
WHEREAS, negotiating a potentially controversial rule
making during its formulation may reduce time and expense to the State in
promulgating the rule and the need for judicial intervention;
NOW, THEREFORE, I, Mario M. Cuomo, Governor of the State of
New York, by virtue of the authority vested in me by the Constitution and Laws
of the State of New York, do hereby establish a Negotiated Rule Making Program
which agencies may use to increase acceptance and improve the substance of
rules through negotiations with regulated and other interested parties.
I. Initiating a Negotiated Rule Making
A. Decision to negotiate a rule making. An
agency may initiate a negotiated rule making procedure if the head of the
agency determines that the use of such procedure is in the public interest.
In making such a determination, the agency shall consider
whether:
1. there is a need for a
rule;
2. the governing statute
allows flexibility in implementation;
3. there are a limited number of identifiable
interests that will be significantly affected by the rule and the
representatives of such interests have sufficient expertise and resources to
contribute to the negotiation process;
4. there is a reasonable likelihood that a
committee can be convened with a balanced representation of the affected
interests and that all representatives are willing to negotiate in good faith
to reach a consensus on the proposed rule;
5. there is a reasonable likelihood that a
committee will reach a consensus on the proposed rule within a fixed period of
time;
6. the negotiated rule making
procedure will not unreasonably delay the adoption of the final rule;
7. the agency has adequate resources and is
willing to commit such resources, including technical assistance, to the
committee; and
8. the agency, to
the maximum extent possible consistent with its statutory responsibilities and
authority, will use the consensus of the committee as the basis for the
proposed rule.
B. Use of
facilitators. A "facilitator" means a person who impartially assists an agency
in determining whether establishing a negotiated rule making committee is
feasible and appropriate in a particular rule making, and impartially aids in
the discussions and negotiations of the members of a negotiated rule making
committee to develop a proposed rule.
1.
Selecting facilitator. The agency shall designate an impartial individual, who
may be an agency employee or an individual from a list of facilitators
established by the Office of Business Permits and Regulatory Assistance, as a
facilitator for the negotiated rule making. A person designated to represent
the agency in substantive issues may not serve as facilitator or otherwise
chair the committee.
2. Duties of
facilitator. A facilitator shall assist the agency in determining whether
establishing a negotiated rule making committee is feasible and appropriate in
a particular rule making, chair the meetings of the committee in an impartial
manner, impartially assist the members of the committee in conducting
discussions and negotiations, and manage the keeping of any minutes and
records.
3. Payment, if any, for
the services of a facilitator shall be made by the regulating agency. The
agency shall also be responsible for providing any administrative support
needed by the committee and the facilitator.
C. Notice of proposed negotiated rule making.
If, upon determination by the agency head that a negotiated rule making is in
the public interest, an agency proposes to establish a negotiated rule making
committee, the agency shall publish a notice of proposed negotiated rule making
in the State Register and, as appropriate, in trade or other specialized
publications.
A notice of proposed negotiated rule making shall
include:
1. an announcement that the
agency intends to establish a negotiated rule making committee to negotiate and
develop a proposed rule;
2. a
description of the subject and scope of the rule to be developed and the issues
to be considered;
3. a list of the
interests which are likely to be significantly affected by the rule;
4. a proposed agenda and schedule for
completing the work of the committee, including a target date for publication
by the agency of a proposed rule for notice and comment;
5. the proposed membership of the negotiated
rule making committee, including, to the extent feasible, an identification of
the persons proposed to represent the agency and outside interests;
and
6. an explanation of how a
person may apply for membership on the committee, as provided in paragraph D of
this section.
D.
Applications for membership. Persons who will be significantly affected by a
proposed rule and who believe that their interests will not be adequately
represented by any person identified in a notice published under paragraph C of
this section may apply to the agency for membership on the negotiated rule
making committee to represent such interests.
II. Establishment of Committee
A. Determination to establish committee. If,
after considering comments and applications submitted under paragraphs C and D
of Section I, the agency head determines that a negotiated rule making
committee can adequately represent the interests that will be significantly
affected by a proposed rule and that it is feasible and appropriate in the
particular rule making, the agency may establish a negotiated rule making
committee. Such committee will be comprised of persons representing interests
identified through the process set forth in paragraphs C and D of Section I,
one or more representatives of the agency, and a facilitator. The agency will
publish notice of the establishment of the committee, or the decision to forego
establishing a committee, in the State Register and any other publications
deemed appropriate by the agency.
B. Duties of committee. Each negotiated rule
making committee shall consider the matter proposed by the agency for
consideration and shall attempt to reach a consensus concerning a proposed rule
with respect to such matter and any other matter the committee determines is
relevant to the proposed rule. Unless otherwise agreed to by the committee,
"consensus" shall mean unanimous concurrence among the interests represented on
the committee. The committee may adopt procedures for its operation. The
committee should consider coming to agreement that issues on which a consensus
is reached will not be litigated by the parties to the negotiated rule
making.
C. Representative of agency
on committee. The person or persons representing the agency on a negotiated
rule making committee shall be fully authorized by the agency to represent its
interests in the committee's discussions, negotiations and decisions and shall
participate in the deliberations and activities of the committee with the same
rights and responsibilities as other members of the committee.
D. Reconvening committee. A committee may
reconvene after a negotiated rule is published in a notice of proposed rule
making to consider any public comments received by the agency.
III. Report of Committee
If a committee reaches a consensus on a proposed rule or
any portion thereof, at the conclusion of negotiations, the committee shall
transmit to the agency head that established the committee and the Office of
Business Permits and Regulatory Assistance a report containing details of the
consensus reached. The committee may include in a report any other information,
recommendations, or materials that the committee considers appropriate. Any
committee member may include as an addendum to the report additional
information, recommendations, or materials. An agency shall identify in a
notice of proposed rule making any rule or portion thereof which was the result
of a negotiated rule making or the subject of a negotiated rule making on which
consensus was not reached.
IV. Responsibilities of the Office of
Business Permits and Regulatory Assistance
The Office of Business Permits and Regulatory Assistance
will develop and maintain a roster of individuals, including State agency
personnel, who are interested in and capable of serving as facilitators in
negotiated rule making proceedings. The office may consult with alternative
dispute resolution organizations to compile its roster of facilitators.
Agencies may utilize this roster or alternative sources for facilitators,
including personnel of other State agencies.
The office will compile and maintain information related to
negotiated rule making and advise agencies and regulated parties on conducting
and participating in negotiated rule makings. The office will monitor
negotiated rule making proceedings and, periodically, encourage agencies to
utilize the negotiated rule making process.
V. Responsibilities of the Department of
Economic Development
The Department of Economic Development will work with the
business community to identify regulatory issues that are critical to their
competitiveness for the future and that might be appropriate for the negotiated
rule making process. The department will recommend to agencies regulatory
issues that may be addressed appropriately by negotiated rule making and
participate in the deliberations of any negotiated rule making committee that
is considering a rule which presents significant economic issues.
VI. Initial Projects
The Commissioner of Environmental Conservation, after
consultation with the Commissioner of Economic Development, shall establish
negotiated rule making committees to consider such matters concerning the Clean
Air Act and pesticide notification requirements as are appropriate for the
negotiated rule making process. The Department of Economic Development shall
assist in identifying representative of interests affected by such matters for
membership on the negotiated rule making committees and participate in the
deliberations of the committees.
VII. Assistance of Other Agencies
The Office of Business Permits and Regulatory Assistance,
the Department of Economic Development and any agency undertaking a negotiated
rule making project may request and shall receive from any department,
division, board, bureau, commission or from any public corporation, assistance,
services and data as they deem necessary to carry out the purpose of this
program.
Signed: Mario M. CuomoDated: June 8, 1992
[FN*] [Revoked by Executive Order No. 31 (George E.
Pataki), infra.]
[FN[DAGGER]] [Revoked by Executive Order No. 5 (Eliot
Spitzer), infra.]
[Revoked by Executive Order No. 9 (David A. Paterson),
infra.]
[Revoked by Executive Order No. 2 (Andrew M. Cuomo),
infra.]
