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; and8. 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; and6. 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.]
N.Y. Comp. Codes R. & Regs. Tit. 9 § 4.156