===== Message from Amber Ahola, NATCSD President on January 15, 2016 =====
Good Afternoon! As many of you are aware, the NATCSD created a legal committee at our last meeting in Florida. That committee was tasked with looking into the pros and cons of negotiated rulemaking. I am forwarding the conclusions and recommendations of the committee. I have also attached the initial research memorandum put together by Marsha Harlan and a copy of the letter I sent to Commissioner Turetsky requesting a meeting to discuss the negotiated rulemaking process.
This item will be on the agenda for our meeting in Santa Fe in April, but please feel free to email any comments, additions, suggestions, etc. in the meantime. I will let you know what I hear back from the Commissioner.
===== Message from Marsha Harlan on January 14, 2016 =====
Pursuant to the tasks delegated during the NATCSD meeting in October, the legal committee has completed its review of the negotiated rulemaking process and the pros and cons associated with its use on behalf of Tribal IV-D regulations. The resulting determination by the committee members, though only a few participated, was that the process would not be effective absent further discussion and strategy by the NATCSD.
A thorough review of the rulemaking process revealed the following factors –
1. The process is intended for the benefit of federal agencies, and not necessarily the entities affected by the rule being offered, and use of the process, and its continuation after being initiated, is at the discretion of the Commissioner and/or the Secretary of HHS.
2. The process requires 7 specific requirements before it can be considered. Not the least of which, is the fact that there must be “a reasonable likelihood of consensus on the proposed rule.” This requirement suggest a specific rule must be determined and considered before the process begins. For example, if the Association seeks to request a modification that would allow more sovereign flexibility, but OCSE approaches from the federal viewpoint as “tribal guardians,” we are already at odds before the dialogue begins.
3. The rigorous application process and cost associated with serving on a negotiated rulemaking committee is often a point of contention for those who have employed it. Additionally, the Agency, not the affected entity, has full discretion as to who can serve on the rulemaking committee.
4. There is no viable evidence to suggest the negotiated rulemaking process is less time consuming than conventional rulemaking.
While the foregoing appear to be “cons” to the process, it is believed the most common “pro” to negotiated rulemaking is that it opens an avenue for dialogue in a less adversarial manner.
Based upon the research and conclusions of the participating committee members, it is recommended the NATCSD engage in additional steps prior to further consideration. These would include the following:
1. Identify specific rules the Directors wish to implement/modify;
2. Identify other alternatives that may be more expedient and provide the determined goals more effectively; and
3. Develop a strategy for what the Association intends to accomplish and outline a plan that insures success.
In addition, specific action plan suggestions were made by the Legal
Committee which included the following:
1. NATCSD engage in a formal consultation regarding specific rules.
2. NATCSD reach out to the White House Indian Policy liaison for assistance.
3. NATCSD reach out to National Congress of American Indians and/or similar organizations for support in our efforts.
Attached is the memorandum that was circulated among committee members. We are requesting you forward our assessment and comments to the list serve. Perhaps, directors may wish to comment further.
Marsha L. Harlan, Esq.