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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