An Introduction to Negotiated Rulemaking

Administrative rulemaking is a process where the government and public work together to create new rules. Usually, people can give their opinions on the rules at meetings and in writing. This is called the traditional rulemaking process. Sometimes, the traditional process doesn’t work well for certain rules, so the government has a different way to make rules called negotiated rulemaking. Negotiated rulemaking is when a group of people from the public and the government work together to create a new rule that everyone agrees on. This process allows for more input from the public and is used for complicated or controversial rules. It’s not required to be used, but it can be helpful in reaching a fair agreement. In Florida, agencies can use negotiated rulemaking to make rules. They have to publish a notice and invite representative groups to take part. The meetings of the negotiating committee must be open to the public. But if someone thinks their interests aren’t represented, they can apply to participate. The decisions made during negotiated rulemaking can’t be used to challenge the rules later on. A case called Baywood Nurseries Co., Inc. v. Dept of Health upheld the Department of Health’s use of negotiated rulemaking. Baywood Nurseries challenged the rules made by the department for medical cannabis. They claimed they were excluded from the process and that the committee making the rules was not fair. The department used a method called negotiated rulemaking to develop the rules. The court said that the department did the process correctly. The court also said that the department can decide who is on the committee and how the rules are made. The decision gives instructions for how agencies can use negotiated rulemaking and warns them that the fairness of the committee may be important in a legal proceeding. The Baywood decision raises questions about whether certain factors in the law are optional or required. It’s important for agencies to follow the law closely to avoid problems and reach fair outcomes. The rules coordinator for the Agency for Health Care Administration, Gregory L. Pitt, Jr., wrote this article. We want our members to learn about doing their duty and helping the public. We also want to make sure that the justice system works well and that our understanding of the law keeps getting better.

Source: https://www.floridabar.org/the-florida-bar-journal/an-introduction-to-negotiated-rulemaking/