FAQ - Negotiated Rulemaking
What processes does FMCSA use to consult with the public on rulemakings?
Depending on the issue, FMCSA uses a range of tools to optimize opportunities for public consultation on its rulemaking activities. Based on legal requirements under the Administrative Procedure Act (APA) (5 U.S.C. §553), the Agency conducts informal notice and comment rulemaking to gather comments and consider how its actions could impact the public and regulated entities. Normally, such rulemakings must be published in the Federal Register to ensure public notice, and the public submits comments through a public website (See: http://www.regulations.gov/#!home). Such consultative tools are also informed by the U.S. Department of Transportation (USDOT)-wide policies and guidance (see: https://www.transportation.gov/regulations/rulemaking-requirements-2012).
In addition, for some actions, the Agency enhances the rulemaking process by providing additional opportunities for input. These typically include: (1) asking for feedback through an Advance Notice of Proposed Rulemaking (ANRPM); (2) conducting “Listening Sessions” in hearings and public meetings to gather information; and (3) impaneling experts to research issues and advise the Agency through its Motor Carrier Safety Advisory Committee (MCSAC) (http://mcsac.fmcsa.dot.gov/). MCSAC is governed by the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2).
More recently, however, FMCSA conducted a negotiated rulemaking to engage in a consensus-based decision-making process. Compared to participation in hearings/meetings and advisory committees, the role of non-Agency participants in interacting with the Agency through the negotiated rulemaking process is often far more robust, expansive, and issue-focused (see Question 2).
What is negotiated rulemaking?
Federal agencies may decide to conduct a negotiated rulemaking under the authority of the Negotiated Rulemaking Act (NRA) as an alternative means of developing a Notice of Proposed Rulemaking (NPRM) for certain rules (5 U.S.C. §§561-570)(see Question 3). Negotiated rulemaking is a process that brings together stakeholder representatives and a federal agency to negotiate a consensus on the text and/or major concepts to utilize in an NPRM.
The parties represented in the negotiated rulemaking agree to support the NPRM during the notice and comment process. After the comment period closes, the committee may review any comments and make recommendations to the Agency on whether to modify, reject, or publish the proposal as a final rule. See more at https://www.transportation.gov/regulations/rulemaking-process#sthash.fyJMRN5C.dpuf.
The first step in a negotiated rulemaking is the “convening.” This stage is used to assess the feasibility of the process reaching consensus (see Question 5 below). If the agency proceeds, it notifies the public of its intent to do so and solicits public comment on who should be invited to participate. As noted in the answer to Question 6, such steps were followed by FMCSA for the ELDT negotiated rulemaking.
How is negotiated rulemaking unique from the other consultative processes?
The negotiated rulemaking process is unique in several ways from both listening sessions and advisory committees. First, it is governed by provisions ensuring the neutrality and confidentiality of communications with the convener/facilitator who leads the negotiation (see Administrative Dispute Resolution Act (5 U.S.C. §§ 571 - 584)). Second, it is a consensus-based process where participants seek to craft a package of provisions (or concepts) that are mutually acceptable to all participants, including the Agency (see Question 6). Third, while listening sessions are used for information exchange and FACA committees are used for non-binding advice, a negotiated rulemaking committee’s goal is to make binding, enduring decisions that will resolve the underlying issues and, if present, disputes.
In this important sense, negotiated rulemaking requires the most active type of engagement among the consultative processes. For the agency that hosts the committee, negotiated rulemaking can be resource-intensive and generally require considerable staff time to properly engage with the committee and public. Consequently, negotiated rulemaking is not typically used for routine rules that do not involve a high degree of complexity and public interest.
When is negotiated rulemaking typically used?
Since the enactment of the NRA in 1990, numerous agencies have conducted negotiated rulemakings, including the USDOT. In fact, USDOT was one of the first federal departments to utilize this innovative process. While each agency’s decision to use negotiated rulemaking is unique to a particular rule and its facts and circumstances, generally the negotiated rulemaking process has been used for complex and/or controversial rules where an agency has encountered difficulty developing an NPRM or where a deadline requires intensive consultations with agency stakeholders. Negotiated rulemaking can be particularly helpful in generating data by leveraging the “shop floor” expertise of technical experts. Negotiated rulemakings have resulted in numerous innovative, cost-effective rules.
Why was a negotiated rulemaking process used for the ELDT NPRM?
As noted in the Regulatory and Legal History Section of the ELDT NPRM, previous efforts to promulgate an ELDT rule were unsuccessful, despite significant efforts in the rulemaking process, as supplemented by outreach including listening sessions and formal consultations with FMCSA’s Motor Carrier Safety Advisory Committee.
On July 6, 2012, however, Congress enacted the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. No. 112-141, § 32304), and directed the Agency to draft a rule on ELDT on an expedited basis. Among other procedural steps (further discussed in Answer 6), the Agency retained a neutral convener, as authorized by the NRA (5 U.S.C. 563(b)), to impartially assist the Agency in determining whether using negotiated rulemaking would be feasible and appropriate. The convening is an analysis of the issues and the parties significantly affected by such issues (Id. at §563). To that end, the convener interviewed a broad range of stakeholders concerning ELDT and issued a report on November 26, 2014, recommending the Agency use a negotiated rulemaking process (http://www.regulations.gov/#!documentDetail;D=FMCSA-2007-27748-0854). Petitioners to a lawsuit brought in the District of Columbia Circuit regarding the ELDT rulemaking agreed to participate in the negotiated rulemaking process to collaborate on the drafting of an NPRM (see Question 9).
How was the negotiated rulemaking committee established and what rules governed its deliberations?
The establishment of both regular advisory committees and negotiated rulemaking committees are subject to procedures under the NRA and FACA, respectively, and FMCSA complied with such requirements. First, on August 19, 2014, FMCSA formally announced that it was considering addressing the rulemaking mandated by MAP-21 through a negotiated rulemaking (79 FR 49044). Second, through a notice published in the Federal Register on December 10, 2014, FMCSA solicited public comment on the proposal to establish the committee and solicited expressions of interest from those who wanted to be represented on the committee, and subsequently considered the comments and applications submitted (79 FR 73274). As required under the NRA, the Agency determined that a negotiated rulemaking committee could adequately represent the interests that would be significantly affected by a proposed rule, and that it was feasible and appropriate to establish a negotiating committee. Third, FMCSA established a charter under the FACA, under which it subsequently convened the Entry-Level Driver Training Advisory Committee (ELDTAC) (79 FR 73273, 73275).
The ELDTAC ground rules governed a variety of issues, such as participants, decision making, agreement, and meetings. Of particular importance was how consensus was defined. The ELDTAC decided that a consensus would include a scenario where there was either unanimous agreement or up to three negative votes from the committee of twenty-six, including the Agency. For details, see the ground rules at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/ELDTAC%20Written%20Statement.pdf (Appendix B, p. 101).
What were the results of the negotiated rulemaking?
Based on six meetings between February and May 2015 and extensive interim consultation by committee members and issue-specific subcommittee groups, the ELDTAC reached a consensus on a broad package of provisions on May 29, 2015. See https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/ELDTAC%20Written%20Statement.pdf.
These issues are described in detail in the NPRM posted in the rulemaking docket. For even more detailed information on ELDTAC, such as meeting summaries and other draft documents, see the ELDTAC website at https://www.fmcsa.dot.gov/eldtac.
What are the next steps for the ELDT rulemaking?
The Agency will review comments submitted by the public once the NPRM comment period ends, which is 30 days following the NPRM’s publication in the Federal Register.
Since the ELDTAC is still a chartered committee under FACA, FMCSA may consult with the committee prior to finalizing the rule. Any contacts with the committee will be recorded both on the ELDTAC website and in the Agency’s rulemaking docket.
How does the negotiated rulemaking impact the litigation?
On September 18, 2014, FMCSA and USDOT were sued in a mandamus action requesting that the D.C. Circuit Court of Appeals order the Agency to publish a proposed rule on ELDT in 60 days and a final rule within 120 days of the Court’s order in Re Advocates for Highway and Auto Safety, the International Brotherhood Teamsters; and Citizens for Reliable and Safe Highways vs. Anthony Foxx, Secretary of the United States Department of Transportation, et al. (No. 14-1183, D.C. Circuit (2014)) (Advocates II). On March 10, 2015, the Court in Advocates II ordered that the petition for writ of mandamus be held in abeyance pending further order of the court to permit the USDOT to issue, by September 30, 2016, final regulations pursuant to MAP-21. Petitioners to the lawsuit agreed to participate in the negotiated rulemaking process to collaborate on the drafting of an NPRM. FMCSA remains committed to continuing its efforts to complete the final rule by September 2016.