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8 Admin. L. News 1 (1982-1983)

handle is hein.journals/admreln8 and id is 1 raw text is: ADMINISTRATIVE LAW NEWS summer 1982 4 published by the section of administrative law, american bar association, volume 8, number 1 Procedures for Negotiating Regulations Recommended* BY PHILIP J. HARTER WASHINGTON, D.C. The reaction of most aficionados of ad- ministrative law when the subject of regulatory negotiation is broached seems to be So what's new? They point out that virtually every regula- tion of any consequence involves negotiation. And, surely, that is true. But remarkably few federal regulations actually reflect a consensus of the parties significantly affected by them. Rather, however extensive the negotiation may be, it is sequential, with each interest meeting with the agency in turn to secure its favor. Yet, the potential benefits of negotiating regulations among those interested seem large indeed: The parties would be able to identify the relevant, practical issues, decide what information was necessary, rank the issues according to their relative importance to each party, and trade those issues in order to reach an optimum rule acceptable to each party. Agencies now have to guess and there is much entropy in the system. But the parties clearly will not strip off the pro- tections of an adversary proceeding unless they believe they can benefit from an alternative pro- cess. Thus, it is essential to look at those condi- tions that are hospitable to negotiation and that, when met, are likely to mean that an informal, negotiating way of reaching a consensus will be a better way than the usual hybrid rulemaking procedures. There are several reasons why it is worthwhile to seek out conditions conducive to negotiating rules. One is that parties remain dissatisfied with *This article is based on research conducted for the Ad- ministrative Conference of the United States. rules developed even under the most arduous cir- cumstances, as witnessed by the frequency of judi- cial review and the complaints about results always voiced in the general-circulation and the trade press. A party is likely to be embittered bya loss in an adversary case. Finally, the adversary process is enormously time-consuming and expensive. Moreover, negotiating has proved satisfactory in a number of other situations. For example, regula- tions are regularly negotiated in Western Europe and parties seem to find the process far more satis- fying than our hybrid process. A vast array of highly technical voluntary standards involving sophisti- cated and subtle tradeoffs of issues involving public policy have been negotiated. Law-suits challenging the validity of a rule are settled when the parties and the agencies work out an agree- ment that forms a basis of a notice of proposed rulemaking. A growing number of environmental controversies are resolved through a consensus among the conflicting interests. This experience leads to a set of principles that is relatively consis- tent across the various situations. (continued on page 10) In This Issue Message from Incoming Chairm an ........................ 2 Legislative Veto- A Message from the States .......... 3 Developments under the Regulatory FlexibilityAct ............ 5 ACUS Plenary Session ................ 7 Copyright © 1982 American Bar Association Produced by the ABA Press

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