Viscusi, W. Kip-Continued Page Responses to written questions submitted by Senator Glenn...... 408 "Environmental Federalism," by Robert M. Schwab, from Resources, summer "Environmental Federalism: Allocating Responsibilities for Environmental Protection," staff working paper, Congressional Budget Office, September "Municipalities, Small Business, and Agriculture: The Challenge of Meeting Environmental Responsibilities," Office of Policy Planning and Evaluation, U.S. Environmental Protection Agency, September 1988. "Presidential Oversight: Controlling the Regulators," by W. Kip Viscusi, from REGULATION THROUGH NEGOTIATION: THE NEGOTIATED RULEMAKING ACT FRIDAY, MAY 13, 1988 U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC. The Committee_met, pursuant to notice, at 9:35 a.m., in room SD-342, Dirksen Senate Office Building, Hon. John Glenn, Chairman of the Committee, presiding. Present: Senators Glenn and Levin. OPENING STATEMENT OF CHAIRMAN GLENN Chairman GLENN. The hearing will be in order. Today the Committee begins the first in a series of hearings it will hold on a variety of issues related to regulatory reform. As many of you may recall, a little bit more than a decade ago, pursuant to a Senate resolution, this Committee undertook a comprehenaisve assessment of the status of Federal regulation, examined the impact of contemporary regulatory programs, and suggested areas for change. And I believe that we have not fully recognized the result of those hearings. The output from that study was a sevenvolume Committee report that over the years has been an invaluable resource to policy-makers, to industry, to public interest groups, and to scholars. Needless to say, the last decade has witnessed a virtual revolution both in the way the Federal Government regulates and in the substance of its regulatory policies themselves. During this period, not only have policies of deregulation been pursued, but the Congress and the President have sought ways to reduce the cost and burden of regulation where it is warranted. It is fair to say that, while there is agreement that only necessary and cost-effective regulation should be implemented or maintained, the Congress and the President have been unable to agree on how best to achieve that goal. It is against this backdrop that I have scheduled these hearings. It is a propitious time to "take stock" of our initiatives in regulatory reform. Today we focus on "new" methods of regulation; in particular, on a form of "alternative means of dispute resolution"-or ADRs, as they have become known-negotiated rulemaking, as embodied in S. 1504, the Negotiated Rulemaking Act. S. 1504 was introduced by my colleague on the Committee, Senator Levin, and I commend him for his leadership in this area. He really has pushed this. It is not one of the racy headline issues of Government, but it is one of (1) the most important things that we have to consider if we are going to make regulatory reform work and work correctly. I am not simply talking about rhetoric out of the White House or out of some of the departments about turning functions back to the people. I am talking about seriously considering how to make the regulatory process work the way it should. Carl Levin deserves much credit because he has worked on this issue and studied it. He has examined it on the Subcommittee, and we are glad to have a meeting today that will give him the forum of the full Committee to address the subject on which he has done a lot of work over the past 2 years. We are happy to do that. Negotiated rulemaking, sometimes called regulatory negotiation-or the shorthand for it is "reg neg"-is a process by which an agency develops a rule through convening a committee comprised of representatives of the affected interests. The basic principle is that if these representatives sit down together and make a commitment to find areas of agreement, regulations can be fashioned which are less susceptible to challenge, because the affected parties have participated in the rules development and have a stake in their success. This approach presents an alternative to the conventional rulemaking procedure which, under some circumstances, may encourage the affected groups as well as the involved agency to adopt extreme positions and adversarial relationships with respect to the rules being developed. Thus, where it is better suited than conventional rulemaking, negotiated rulemaking holds out the promise that excessive litigation and its attendant administrative and social costs can be reduced. S. 1504 develops a basic framework for implementation of negotiated rulemaking in line with the strictures of the Federal Advisory Committee Act (FACA) and facilitate agency use of the procedure. This morning we have two panels of distinguished witnesses, and we look forward to their testimony. On the first panel, we have Marshall Breger, who is Chairman of the Administrative Conference of the United States. Also on this first panel is Thomas Kelly, who is Director of the Office of Standards and Regulations at EPA. On the second panel, we have Philip Harter, who is an attorney in private practice here in Washington; Kelly Brown from Ford Motor Company; David Doniger, who is with the Natural Resources Defense Council; and David Zoll, who represents the Chemical Manufacturers Association. We welcome you all to the hearing this morning. Once again, I want to give full credit where credit is due. Carl Levin has been the leader looking into this issue. It is an important issue concerning the way Government functions and it is of vital concern to this Committee. We appreciate his leadership on this. Carl? OPENING STATEMENT OF SENATOR LEVIN Senator LEVIN. Thank you very much, Senator Glenn. You are the one to be congratualted for your initiative in scheduling a series of hearings on regulatory reform. Under your leadership, this Committee is addressing, in the nuts-and-bolts fashion that you are so famous for, getting things done to help our Government |