DOT neg rulemaking re ID standardization (call for membership of advisory committee)
John Gilmore
gnu at toad.com
Tue Mar 22 12:06:41 EST 2005
[Here's where an unconstitutional National ID will get created by the
back door. Do we have anybody in this community who cares? I can't
participate, because I can't travel to Washington for meetings,
because I don't have the proper ID documents. I note that they did
not think to include a representative of "undocumented people"...
-- John]
[Federal Register: February 23, 2005 (Volume 70, Number 35)]
[Proposed Rules]
[Page 8756-8761]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe05-18]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Subtitle A
[Docket No. OST-2005-20434]
Driver's Licenses and Personal Identification Cards
AGENCY: Office of the Secretary (OST), DOT.
ACTION: Notice of intent to form a negotiated rulemaking advisory
committee.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the portion of the Intelligence Reform and
Terrorism Prevention Act of 2004 known as the 9/11 Commission
Implementation Act of 2004, the Office of the Secretary, DOT, is
establishing a committee to develop, through negotiated rulemaking
procedures, recommendations for minimum standards to tighten the
security for driver's licenses and personal identification cards issued
by States, in order for these documents to qualify for use by Federal
agencies for identification purposes. The committee will consist of
persons who represent the interests affected by the proposed rule,
i.e., State offices that issue driver's licenses or personal
identification cards, elected State officials, the Departments of
Transportation and Homeland Security, and other interested parties. The
purpose of this document is to invite interested parties to submit
comments on the issues to be discussed and the interests and
organizations to be considered for representation on the committee.
DATES: You should submit your comments or applications for membership
or nominations for membership on the negotiated rulemaking committee
early enough to ensure that the Department's Docket Management System
(DMS) receives them not later than March 25, 2005. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: You should mention the docket number of this document in
your comments or application/nomination for membership and submit them
in writing to: Docket Management System (DMS), Room PL-401, 400 Seventh
Street, SW., Washington, DC 20590. Commenters may also submit their
comments electronically. Instructions for electronic submission may be
found at the following Web address: http://dms.dot.gov/submit/.
You may call the Docket at 202-366-9324, and visit it from 10 a.m.
to 5 p.m., Monday through Friday. Interested persons may view docketed
materials on the Internet at any time. Instructions for doing so are
found at the end of this notice.
You may read the comments received by DMS at the address given
above under ADDRESSES. The hours of the Docket are indicated above in
the same location.
You may also review all documents in the docket via the internet.
To read docket materials on the internet, take the following steps:
1. Go to the DMS Web page of the Department of Transportation
(http://dms.dot.gov/).
2. On that page, click on ``search.''
3. On the next page (http://dms.dot.gov/search/), type in the four-
digit docket number shown at the beginning of this document. Example:
If the docket number were OST-2005-1234,'' you would type ``1234.''
After typing the docket number, click on ``search.''
4. On the next page, which contains docket summary information for
the
[[Page 8757]]
docket you selected, click on the desired comments. You may download
the comments. The comments are word searchable.
Please note that even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Office of the General
Counsel, at 202-366-9310 (bob.ashby at dot.gov), or Steve Wood, Assistant
Chief Counsel for Vehicle Safety Standards and Harmonization, Office of
the Chief Counsel, National Highway Traffic Safety Administration, 202-
366-2992 (steve.wood at nhtsa.dot.gov) Their mailing addresses are at the
Department of Transportation, 400 7th Street, SW., Washington, DC
20590, at rooms 10424 and 5219, respectively.
SUPPLEMENTARY INFORMATION:
I. Background
On December 17, 2004, the President signed into law the
Intelligence Reform and Terrorism Prevention Act of 2004. (Public Law
No. 108-458). Title VII of that Act is known as the 9/11 Commission
Implementation Act of 2004 (the 9/11 Act). Subtitle B of the 9/11 Act
addresses terrorist travel and effective screening. Among other things,
subtitle B mandates the issuance of minimum standards for Federal
acceptance of birth certificates (section 7211), and driver's licenses
and personal identification cards (section 7212). It also establishes
requirements for enhancing the security of social security cards
(section 7213). This notice concerns section 7212.
A bill currently under consideration in Congress (H.R. 418), if
enacted and signed into law as passed by the House, would terminate the
Department's negotiated rulemaking. The Administration has endorsed
this bill, which would repeal section 7212 which is the basis for the
Department's rulemaking. Until and unless such legislation is enacted,
however, the Department is taking the steps necessary to meet the
existing statutory deadline. This notice describes the procedure that
we propose to use in implementing section 7212, as long as it remains
in effect.
II. Statutory Mandate for Minimum Standards on Driver's Licenses and
Personal Identification Cards
Section 7212 of the 9/11 Act requires the Secretary of
Transportation, in consultation with the Secretary of Homeland
Security, to establish, by regulation, minimum standards for driver's
licenses or personal identification cards issued by a State in order to
qualify for use by Federal agencies for identification purposes.
This provision was enacted in response to the following
recommendation in the 9/11 Commission report:
Recommendation: Secure identification should begin in the United
States. The Federal government should set standards for the issuance
of birth certificates and sources of identification, such as drivers
licenses. Fraud in identification documents is no longer just a
problem of theft. At many entry points to vulnerable facilities,
including gates for boarding aircraft, sources of identification are
the last opportunity to ensure that people are who they say they are
and to check whether they are terrorists.\1\
---------------------------------------------------------------------------
\1\ 9/11 Commission Report, page 390.
---------------------------------------------------------------------------
In making that recommendation, the Commission noted:
All but one of the 9/11 hijackers acquired some form of U.S.
identification document, some by fraud. Acquisition of these forms
of identification would have assisted them in boarding commercial
flights, renting cars, and other necessary activities.\2\
---------------------------------------------------------------------------
\2\ Ibid.
---------------------------------------------------------------------------
A. Substance of the Standards
Section 7212(b)(2) of the 9/11 Act requires that the standards to
be established by the Secretary of Transportation include--
(A) standards for documentation required as proof of identity of an
applicant for a driver's license or personal identification card;
(B) standards for the verifiability of documents used to obtain a
driver's license or personal identification card;
(C) standards for the processing of applications for driver's
licenses and personal identification cards to prevent fraud;
(D) standards for information to be included on each driver's
license or personal identification card, including--
(i) the person's full legal name;
(ii) the person's date of birth;
(iii) the person's gender;
(iv) the person's driver's license or personal identification card
number;
(v) a digital photograph of the person;
(vi) the person's address of principal residence; and
(vii) the person's signature; \3\
---------------------------------------------------------------------------
\3\ Section 7214 of the Act provides that no State or
subdivision thereof may ``display a social security account number
issued by the Commissioner of Social Security (or any derivative of
such number) on any driver's license, motor vehicle registration, or
personal identification card (as defined in section 7212(a)(2) of
the 9/11 Commission Implementation Act of 2004), or include, on any
such license, registration, or personal identification card, a
magnetic strip, bar code, or other means of communication which
conveys such number (or derivative thereof).''
---------------------------------------------------------------------------
(E) standards for common machine-readable identity information to
be included on each driver's license or personal identification card,
including defined minimum data elements;
(F) security standards to ensure that driver's licenses and
personal identification cards are--
(i) resistant to tampering, alteration, or counterfeiting; and
(ii) capable of accommodating and ensuring the security of a
digital photograph or other unique identifier; and
(G) a requirement that a State confiscate a driver's license or
personal identification card if any component or security feature of
the license or identification card is compromised.
Section 7212(b)(3) requires further that the standards--
(A) shall facilitate communication between the chief driver
licensing official of a State, an appropriate official of a Federal
agency and other relevant officials, to verify the authenticity of
documents, as appropriate, issued by such Federal agency or entity and
presented to prove the identity of an individual;
(B) may not infringe on a State's power to set criteria concerning
what categories of individuals are eligible to obtain a driver's
license or personal identification card from that State;
(C) may not require a State to comply with any such regulation that
conflicts with or otherwise interferes with the full enforcement of
State criteria concerning the categories of individuals that are
eligible to obtain a driver's license or personal identification card
from that State;
(D) may not require a single design to which driver's licenses or
personal identification cards issued by all States must conform; and
(E) shall include procedures and requirements to protect the
privacy rights of individuals who apply for and hold driver's licenses
and personal identification cards.
B. Process for Developing Recommendations for Proposed Standards
The 9/11 Act requires that before publishing proposed minimum
[[Page 8758]]
standards, the Secretary of Transportation must establish a negotiated
rulemaking process pursuant to 5 U.S.C. 561 et seq.,\4\ and receive
such recommendations regarding a proposed as the regulatory negotiation
committee may adopt. The committee must include representatives from--
---------------------------------------------------------------------------
\4\ Section 7212(b)(4)(A).
---------------------------------------------------------------------------
(i) among State offices that issue driver's licenses or personal
identification cards;
(ii) among State elected officials;
(iii) the Department of Homeland Security; and
(iv) among interested parties.\5\
---------------------------------------------------------------------------
\5\ Section 7212(b)(4)(B).
---------------------------------------------------------------------------
C. Schedule for Submitting Recommendations and Establishing the
Standards
The recommendations of the negotiated rulemaking committee must be
submitted to the Secretary of Transportation not later than 9 months
after the date of enactment, i.e., by September 17, 2005.\6\ The
Secretary must issue a final rule establishing the standards not later
than 18 months after the date of enactment, i.e., by June 17, 2006.\7\
---------------------------------------------------------------------------
\6\ Section 7212(b)(4)(C)(i).
\7\ Section 7212(b)(2). See also Section 7212(b)(4)(C)(ii).
---------------------------------------------------------------------------
D. Implementation of the Standards
Section 7212(b)(1)(C) provides that each State must certify to the
Secretary of Transportation that the State is in compliance with the
requirements of this section. The certifications are to be made at such
intervals and in such a manner as the Secretary of Transportation may
prescribe by regulation.
Further, Section 7212(b)(1)(A) bars all Federal agencies from
accepting, for any official purpose, a driver's license or personal
identification card that is newly issued by a State more than 2 years
after the issuance of the minimum standards (i.e., by June 17, 2008)
unless the driver's license or personal identification card conforms to
those standards.\8\ As to all driver's licenses and personal
identification cards, regardless of when they were issued, the
Secretary of Transportation, in consultation with the Secretary of
Homeland Security, is required by Section 7212(b)(1)(B) to set a date
after which all Federal agencies are barred from accepting any driver's
license or personal identification card for any official purpose unless
such driver's license or personal identification card conforms to the
minimum standards.
---------------------------------------------------------------------------
\8\ Section 7212(d) provides that the Secretary may extend this
date ``for up to 2 years for driver's licenses issued by a State if
the Secretary determines that the State made reasonable efforts to
comply with the date under * * * [section 7212(b)] * * * but was
unable to do so.''
---------------------------------------------------------------------------
III. Negotiated Rulemaking
As required by Section 7212 (b)(4)(C), the Office of the Secretary
will conduct the mandated negotiated rulemaking in accordance with the
Negotiated Rulemaking Act of 1990, Public Law 101-648 (NRA) (5 U.S.C.
561, et seq.). The NRA establishes a framework for the conduct of a
negotiated rulemaking and encourages agencies to use negotiated
rulemaking to enhance the informal rulemaking process. Pursuant to
Section 7212 and the NRA, OST will form an advisory committee
consisting of representatives of the affected interests for the purpose
of reaching consensus, if possible, on the proposed rule.
A. The Concept of Negotiated Rulemaking
Usually, DOT develops a rulemaking proposal using its own staff and
consultant resources. The concerns of affected parties are made known
through means such as various informal contacts and advance notices of
proposed rulemaking published in the Federal Register. After the notice
of proposed rulemaking is published for comment, affected parties may
submit arguments and data defining and supporting their positions with
regard to the issues raised in the proposed rule. All comments from
affected parties are directed to the Department's docket for the
rulemaking. In general, there is limited communication among parties
representing different interests. Many times, effective regulations
have resulted from such a process.
However, as Congress noted in the NRA, such regulatory development
procedures may ``discourage the affected parties from meeting and
communicating with each other, and may cause parties with different
interests to assume conflicting and antagonistic positions * * *''
(Sec. 2(2) of Pub. L. No. 101-648). Congress also stated ``adversarial
rulemaking deprives the affected parties and the public of the benefits
of face-to-face negotiations and cooperation in developing and reaching
agreement on a rule. It also deprives them of the benefits of shared
information, knowledge, expertise, and technical abilities possessed by
the affected parties.'' (Sec. 2(3) of Pub. L. No. 101-648).
Using negotiated rulemaking to develop the proposed rule is
fundamentally different. Negotiated rulemaking is a process in which a
proposed rule is developed by a committee composed of representatives
of all those interests that will be significantly affected by the rule.
Decisions are made by some form of consensus, which generally requires
a measure of concurrence among the interests represented.\9\ An agency
desiring to initiate the process does so by carefully identifying all
interests potentially affected by the rulemaking under consideration.
To help in this identification process, the agency publishes a notice,
such as this one, which identifies a preliminary list of interests and
requests public comment on that list. Following receipt of the
comments, the agency establishes an advisory committee representing
these various interests to negotiate a consensus on the terms of a
proposed rule. The committee is chartered under the Federal Advisory
Committee Act (FACA; 5 U.S.C. App. 2). Representation on the committee
may be direct, that is, each member represents a specific interest, or
may be indirect, through coalitions of parties formed for this purpose.
The establishing agency has a member of the committee representing the
Federal government's own set of interests.\10\ A facilitator or
mediator can assist the negotiated rulemaking advisory committee by
facilitating the negotiation process. The role of this mediator, or
facilitator, is to apply proven consensus building techniques to the
advisory committee setting.
---------------------------------------------------------------------------
\9\ The Negotiated Rulemaking Act defines ``consensus'' as
``unanimous concurrence among the interests represented on a
negotiated rulemaking committee * * * unless such committee (A)
agrees to define such term to mean a general but not unanimous
concurrence; or (B) agrees upon another specified definition.'' 5
U.S.C. 562(2).
\10\ In this regulatory negotiation, both the Departments of
Transportation and Homeland Security are required by statute to
represent the Federal government's interests.
---------------------------------------------------------------------------
Once a regulatory negotiation advisory committee reaches consensus
on the provisions of a proposed rule, the agency, consistent with its
legal obligations, uses this consensus as the basis of its proposed
rule and publishes it in the Federal Register. This provides the
required public notice under the Administrative Procedure Act (APA; 5
U.S.C. 551 et seq.) and allows for a public comment period. Under the
APA, the public retains the right to comment. The Department
anticipates, however, that the pre-proposal consensus agreed upon by
this committee will effectively address virtually all major issues
prior to publication of a proposed rulemaking.
[[Page 8759]]
B. The Department of Transportation's Commitment
In initiating this regulatory negotiation process, the Department
plans to provide adequate resources to ensure timely and successful
completion of the process. This includes making the process a priority
activity for all representatives, components, officials, and personnel
of the Department who need to be involved in the rulemaking, from the
time of initiation until such time as a final rule is issued or the
process is expressly terminated. The Department will provide
administrative support for the process and will take steps to ensure
that the negotiated rulemaking committee has the appropriate resources
it requires to complete its work in a timely fashion. These include the
provision or procurement of such support services as properly equipped
space adequate for public meetings and caucuses; logistical support;
word processing and distribution of background information; the
services of a convenor/facilitator; and such additional research and
other technical assistance as may be necessary.
To the extent possible, consistent with its legal obligations, the
Department currently plans to use any consensus arising from the
regulatory negotiation committee as the basis for the proposed minimum
standards to be published for public notice and comment.\11\
---------------------------------------------------------------------------
\11\ The Department of Transportation is obligated under Section
7212 to propose and adopt minimum standards regardless of whether
the committee to be established pursuant to Section 7212 is able to
achieve consensus on all required elements of those standards. Thus,
if the committee were unable to reach consensus on any of the
elements, the Department of Transportation would, in consultation
with the Department of Homeland Security, independently develop
proposals regarding those elements.
---------------------------------------------------------------------------
C. Negotiating Consensus
As discussed above, the negotiated rulemaking process is
fundamentally different from the usual development process for
developing a proposed rule. Negotiation allows interested and affected
parties to discuss possible approaches to various issues rather than
simply being asked in a regular notice and comment rulemaking
proceeding to respond to details on a proposal developed and issued by
an agency. The negotiation process involves a mutual education of the
parties by each other on the practical concerns about the impact of
various approaches. Each committee member participates in resolving the
interests and concerns of other members, rather than leaving it up to
the agency to bridge different points of view.
A key principle of negotiated rulemaking is that agreement is by
consensus. Thus, no one interest or group of interests is able to
control the process. Under the NRA as noted above, ``consensus''
usually means the unanimous concurrence among interests represented on
a negotiated rulemaking committee, though a different definition may be
employed in some cases. In addition, experience has demonstrated that
using a professional mediator to facilitate this process will assist
all potential parties, including helping to identify their interests in
the rule and enabling them to reevaluate previously stated positions on
issues involved in the rulemaking effort.
D. Key Issues for Negotiation; Invitation to Comment on Issues To Be
Addressed
As noted above, Section 7212 sets forth considerable detail
regarding the issues to be addressed in developing and promulgating the
mandated minimum standards. The Department invites comment on the
issues regarding the particular aspects of the standards that the
negotiating committee should address in developing its recommendations
or report.
The Department is aware of the considerable work that has been and
is being done at Federal and State levels and in the private sector to
improve various types of identification documents, including driver's
licenses. We invite comment on which of these past and ongoing efforts
are most relevant to this rulemaking, and on what implications those
efforts have for the recommendations and choices to be made in this
rulemaking.
IV. Procedures and Guidelines for This Regulatory Negotiation
The following proposed procedures and guidelines will apply to the
regulatory negotiation process, subject to appropriate changes made as
a result of comments on this Notice or as determined to be necessary
during the negotiating process.
A. Notice of Intent To Establish Advisory Committee and Request for
Comment
In accordance with the requirements of FACA, an agency of the
Federal government cannot establish or utilize a group of people in the
interest of obtaining consensus advice or recommendations unless that
group is chartered as a Federal advisory committee. It is the purpose
of this Notice to indicate the Department's intent to create a Federal
advisory committee, to identify the issues involved in the rulemaking,
to identify the interests affected by the rulemaking, to identify
potential participants who will adequately represent those interests,
and to ask for comment on the identification of the issues, interests,
procedures, and participants.
B. Facilitator
Pursuant to the NRA (5 U.S.C. 566), a facilitator will be selected
to serve as an impartial chair of the meetings; assist committee
members to conduct discussions and negotiations; and manage the keeping
of minutes and records as required by FACA. The facilitator will chair
the negotiations, may offer alternative suggestions to committee
members to help achieve the desired consensus, will help participants
define and reach consensus, and will determine the feasibility of
negotiating particular issues. The Department has selected Ms. Susan
Podziba, an experienced mediator, as its convenor/facilitator for this
regulatory negotiation.
C. Membership
The NRA provides that the agency establishing the regulatory
negotiation advisory committee ``shall limit membership to 25 members,
unless the agency head determines that a greater number of members is
necessary for the functioning of the committee or to achieve balanced
membership.'' The purpose of the limit on membership is to promote
committee efficiency in deliberating and reaching decisions on
recommendations. The Department of Transportation's current inclination
is to observe that limit. However, the Department notes that its
experience with regulatory negotiations indicates that limiting
membership to fewer than 25 members is often desirable.
D. Interests Likely To Be Affected; Representation of Those Interests
The committee will include a representative from the Department of
Transportation and from the interests and organizations listed below.
Each representative may also name an alternate, who will be encouraged
to attend all committee meetings and will serve in place of the
representative if necessary. The DOT representative is the Designated
Federal Official (DFO and will participate in the deliberations and
activities of the committee with the same rights and responsibilities
as other committee members. The DFO will be authorized to fully
represent the Department in the discussions and negotiations of the
committee.
[[Page 8760]]
The Department has tentatively identified the following
organizations or interests to participate in the negotiated rulemaking.
The convenor will contact these and other organizations to determine
their interests and willingness to serve on the committee.
(1) Department of Transportation.
(2) Department of Homeland Security.
(3) State offices that issue driver's licenses or personal
identification cards; American Association of Motor Vehicle
Administrators.
(4) Representatives of elected State officials; National Governors
Association; National Conference of State Legislatures; National
Association of Attorneys General.
(5) Other interested parties.
(a) Groups or organizations presenting the interests of applicants
for and holders of driver's licenses and personal identification cards.
(i) Consumer organization.
(ii) Organization representing non-citizens/immigrants.
(b) Organizations with technological and operational expertise in
document security.
(c) Privacy and civil liberties groups.
(d) Law enforcement officials.
The first four interests identified above are required by the
statute to participate in the negotiated rulemaking.\12\ The ``other
interests'' mentioned are those that appear to the Department to have
potentially important roles in helping achieve consensus on
recommendations on the issues involved. The Department seeks comment on
whether there are additional interests that should be represented on
the committee. The Department also seeks comments on particular
organizations and individuals who would appropriately represent
interests on the committee. Please identify such organizations and
interests if they exist and explain why they should have separate
representation on the committee.
---------------------------------------------------------------------------
\12\ Section 7212(b)(4)(B).
---------------------------------------------------------------------------
The list of potential parties specifically named above is not
presented as a complete or exclusive list from which committee members
will be selected, nor does inclusion on the list of potential parties
mean that a party on the list has agreed to participate as a member of
the committee or as a member of a coalition, or will necessarily be
invited to serve on the committee. The list merely indicates parties
that DOT has tentatively identified as representing significantly
affected interests in the outcome of the proposed rule. This document
gives notice of this process to other potential participants and
affords them the opportunity to request representation in the
negotiations. The procedure for requesting such representation is set
out below. In addition, comments and suggestions on this tentative list
are invited.
The Department is aware that there are many more potential
participants, whether they are listed here or not, than there are
membership slots on the committee. We do not believe, nor does the NRA
contemplate, that each potentially affected group must participate
directly in the negotiations. What is important is that each affected
interest be adequately represented. To have a successful negotiation,
it is important for interested parties to identify and form coalitions
that adequately represent significantly affected interests. These
coalitions, to provide adequate representation, must agree to support,
both financially and technically, a member to the committee whom they
will choose to represent their ``interest.'' Those selected, it should
be noted, represent one or more interests, not just themselves or their
organizations.
It is very important to recognize that interested parties who are
not selected to membership on the committee can make valuable
contributions to this negotiated rulemaking effort in any of several
ways:
The person or organization could request to be placed on
the committee mailing list, submitting written comments, as
appropriate;
Any member of the public could attend the committee
meetings, caucus with his or her interest's member on the committee,
and, as provided in FACA, speak to the committee. Time will be set
aside during each meeting for this purpose, consistent with the
committee's need for sufficient time to complete its deliberations; or
The person or organization could assist in the work of a
workgroup that might be established by the committee.
Informal workgroups are usually established by an advisory
committee to assist the committee in ``staffing'' various technical
matters (e.g., researching or preparing summaries of the technical
literature or comments on particular matters such as economic issues)
before the committee so as to facilitate committee deliberations. They
also might assist in estimating costs and drafting regulatory text on
issues associated with the analysis of the costs and benefits
addressed, and formulating drafts of the various provisions and their
justification previously developed by the committee. Given their
staffing function, workgroups usually consist of participants who have
expertise or particular interest in the technical matter(s) being
studied.
E. Applications for Membership
Each application for membership or nomination to the committee
should include:
(i) the name of the applicant or nominee and the interest(s) such
person would represent;
(ii) evidence that the applicant or nominee is authorized to
represent parties related to the interest(s) the person proposes to
represent; and
(iii) a written commitment that the applicant or nominee would
participate in good faith.
Please be aware that each individual or organization affected by a
final rule need not have its own representative on the committee.
Rather, each interest must be adequately represented, and the committee
should be fairly balanced.
F. Good Faith Negotiation
Committee members should be willing to negotiate in good faith and
have the authority from his or her constituency to do so. The first
step is to ensure that each member has good communications with his or
her constituencies. An intra-interest network of communication should
be established to bring information from the support organization to
the member at the table, and to take information from the table back to
the support organization. Second, each organization or coalition
should, therefore, designate as its representative an official with
credibility and authority to insure that needed information is provided
and decisions are made in a timely fashion. Negotiated rulemaking
efforts can require a very significant contribution of time by the
appointed members for the duration of the negotiation process. Other
qualities that are very helpful are negotiating experience and skills,
and sufficient technical knowledge to participate in substantive
negotiations.
Certain concepts are central to negotiating in good faith. One is
the willingness to bring all issues to the bargaining table in an
attempt to reach a consensus, instead of keeping key issues in reserve.
The second is a willingness to promote and protect the ability of the
committee to conduct its negotiations. Finally, good faith includes a
willingness to move away from the type of positions usually taken in a
more traditional rulemaking process, and instead explore openly with
other parties all ideas that may emerge from the discussions of the
committee.
[[Page 8761]]
G. Notice of Establishment
After evaluating comments received as a result of this Notice, the
Department will issue a notice announcing the establishment and
composition of the committee. After the committee is chartered, the
negotiations will begin.
H. Administrative Support and Meetings
Staff support will be provided by the Department. Meetings are
currently expected to take place in Washington, DC.
I. Notice of Proposed Rulemaking
The committee's objective will be to prepare a report, consisting
of its consensus recommendations for the regulatory text of a draft
notice of proposed rulemaking. This report may also include suggestions
for the NPRM preamble, regulatory evaluation, or other supplemental
documents. If the committee cannot achieve consensus on some aspects of
the proposed regulatory text, it will, pursuant to the ``ground rules''
the committee has established, identify in its report those areas of
disagreement, and provide explanations for any disagreement. The
Department will use the information and recommendations from the
committee report to draft a notice of proposed rulemaking and, as
appropriate, supporting documents. Committee recommendations and other
documents produced by the committee will be placed in the rulemaking
docket.
In the event that the Department's NPRM differs from the
committee's consensus recommendations, the preamble to an NPRM
addressing the issues that were the subject of the negotiations will
explain the reasons for the decision to depart from the committee's
recommendations.
Following the issuance of NPRM and comment period, the Department
will prepare and provide to the committee a comment summary. The
committee will then be asked to determine whether the committee should
reconvene to discuss changes to the NPRM based on the comments.
J. Committee Procedures
Under the general guidance of the facilitator, and subject to legal
requirements, the committee will establish detailed procedures for the
meetings. The meetings of the committee will be open to the public. Any
person attending the committee meetings may address the committee if
time permits or file statements with the committee.
K. Record of Meetings
In accordance with FACA requirements, the facilitator will prepare
summaries of all committee meetings. These summaries will be placed in
the public docket for this rulemaking.
L. Tentative Schedule
The Department is seeking to convene the first of the committee's
meetings by the last week of March 2005. The date and exact location of
that meeting will be announced in the agency's notice of establishment
of the advisory committee. Meetings are expected to last approximately
three and a half days each. The negotiation process will proceed
according to a schedule of specific dates for subsequent meetings that
the committee devises at its first meeting. We will publish a single
notice of the schedule of all future meetings in the Federal Register,
but will amend the notice through subsequent Federal Register notices
if it becomes necessary to do so. The interval between meetings will be
approximately two weeks.
The first meeting will commence with an overview of the regulatory
negotiation process conducted by the facilitator.
Issued this 17th day of February, 2005, in Washington, DC.
Jeffrey A. Rosen,
General Counsel.
[FR Doc. 05-3458 Filed 2-17-05; 4:26 pm]
BILLING CODE 4910-62-P
---------------------------------------------------------------------
The Cryptography Mailing List
Unsubscribe by sending "unsubscribe cryptography" to majordomo at metzdowd.com
More information about the cryptography
mailing list