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Go as Far as You Can: How Negotiated Rulemaking in Immigration Benefits America: Part 1 of 2

by Gary Endelman

Gary Endelman Crucial decisions on immigration policy will be made this fall. Congress will set a new level of H-1B migration for the next several years. Whether to impose new restrictions on the outsourcing of L -1 intra-company transferees has already become part of the national conversation over what kind of immigration America needs or can afford. Companion attempts to streamline our immigrant quota system and rationalize labor market controls may also be made. Rarely have so many fundamental choices presented themselves at the same time. Even now, in preparation for these coming campaigns, all sides are busily developing legislative tactics and girding their loins for the battles ahead.

What happens next? After Congress speaks, the inherently political process of rulemaking will give shape and substance to the necessarily general guidance that Congress has provided . The "devil" as they say, is always in the details. The choices that inform such implementing regulations will go far towards determining the future of employment-based immigration for the remainder of the decade and beyond. That is why negotiated rulemaking is necessary. What happens after Congress leaves may be just as, perhaps more, important than what it does or fails to do while in session.

The Negotiated Rulemaking Act of 1990 (5 U.S.C. sections 561-570) established a statutory framework for the promulgation of proposed regulations by federal agencies through negotiations between concerned interest groups. Known colloquially as "reg neg", negotiated rulemaking emerged in the 1990s as an alternative to traditional adversarial procedures in which the regulators issued a proposal rule with only limited opportunity for notice and public comment. "Reg neg" allows affected parties a direct input into the drafting of the regulation, thus enhancing the prospects for the resultant rule to be pragmatic, easily implemented and responsive to the realities on the ground. In "reg neg" proceedings, a well-balanced group (generally 12-15 members) representing the regulated public, community and public interest groups, state and local governments serve with the federal regulators on a chartered advisory committee under the Federal Advisory Committee Act. Should such a committee reach consensus, generally requiring unanimity on all core issues, 5 U.S.C. section 562 (2003), then the federal agency adopts this consensus as the basis for its proposed rule. The proposed rule is still subject to public comments. Because the major constituencies affected by the proposed rule are on the negotiating committee itself, the number of public comments should be way down. They are not necessary. Fewer substantive changes are required before the rule "goes live". Committee members agree to support the rule as proposed rather than seeking to challenge it in the courts or attempting to lobby against it on Capitol Hill. So rare is it for a negotiated rule to be challenged in the courts that there is only one reported precedent, U.S.A. Group Loan Services Inc. v. Riley, 82 F.3d., 708, 714-15 (7th Cir. 1996) (discussing student loan servicer's complaint that the Department of Education negotiated in bad faith) containing any substantive judicial examination of the "reg neg" process. If consensus is not reached, then normal rulemaking ensues.

The Congressional Findings that precede the Negotiated Rulemaking Act, 5 U.S.C. section 561 (1994), citing Pub. L. No. 101-648, Section 2, 104 Stat. 4969 (1990), enumerate the many advantages that negotiated rulemaking offers when compared to the traditional adversarial process:

  1. Agencies currently use rulemaking procedures that 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 and to engage in expensive and time-consuming litigation over agency rules;
  2. Adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching
  3. agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise and technical abilities possessed by the affected parties;

  4. Negotiated rulemaking can increase the acceptability and improve the substance of rules, making it less likely that the affected parties will resist enforcement or challenge such rules in court. I t may also shorten the amount of time needed to issue final rules.
The Clinton Administration enthusiastically embraced the "reg neg" concept. On September 30, 1993, President Clinton issued an Executive Order that directed all federal agencies to explore and, when appropriate, employ negotiated rulemaking. The National Performance Review, headed by Vice-President Gore, strongly supported "reg neg" after finding that it offered an opportunity for civic involvement not otherwise available:
Even if the agency experts chose wisely, the traditional model has very little buy-in from outside the agency which undermines the rule's effectiveness. The traditional process encourages adversarial, uncooperative behavior on the part of private industry or others who might be affected by an agency's decisions, which frequently leads to protracted litigation. Agencies routinely find themselves under attack from various parties who are unhappy with the rule. This has been particularly true in controversial areas such as environmental regulation such as environmental regulation or the health and safety of workers.

Office of the Vice President, Improving Regulatory Systems, Accompanying Report of the National Performance Review 29 (September 1993).
Negotiated rulemaking has proven most successful in highly polarized situations where the inherent radioactivity of the issues made them stubbornly resistant to amelioration or solution through traditional rulemaking. The Department of Transportation, for example, turned to "reg neg" to write a regulation governing the delivery of propane when the normal rule became hopelessly bogged down in seemingly endless litigation. See Hazardous Materials: Safety Standards, Notice of Intent to Establish a Negotiated Rulemaking Committee, 63 Fed.Reg.30, 572 (June 4, 1998) (codified at 49 C.F.R. pts. 171,177, 178, 180). OSHA resorted to "reg neg" to address the erection of steel structures after two abortive attempts at traditional rulemaking that together lasted a decade. See Safety Standards for Steel Erection, Notice of Intent to Establish a Negotiated Rulemaking Committee, 57 Fed. Reg 61, 860 (Dec. 29, 1992) (codified at 14 C.F.R. pt. 71). The United States Forest Service sponsored a "reg neg" advisory committee when it could find no other way to develop policies governing the use of fixed anchors for rock climbing in designated wilderness regions. See Fixed Anchors in Wilderness, Notice of Intent to Establish a Negotiated Rulemaking Committee 64 Fed.Reg.58, 368 (Oct. 29, 1999) (codified at 36 C.F.R. ch. II). The Federal Aviation Administration and the National Parks Service used a form of "reg neg" to control sightseeing over flights over national parks. See Philip J.Harter, Assessing the Assessors: The Actual Performance of Negotiated Rulemaking 9 N.Y.U. Environ. L.J. 32, 37 (2000). The Coast Guard trusted "reg neg" to implement vessel response guidelines mandated by Congress in the Oil Pollution Act of 1990, passed in response to the Exxon Valdez disaster in Alaska. See Vessel Response Plans, Notice of Intent to Form a Negotiated Rulemaking Committee, 56 Fed. Reg. 58, 202 (Nov. 18, 1991) (codified at 33 C.F.R. pt. 155). The Environmental Protection Agency relied on "reg neg" to craft a Clean Fuels policy for the refinement and distribution of reformulated gasoline. See Philip J. Harder, Fear of Commitment: An Affliction of Adolescents, 46 Duke L.J.1389(1997).

Federal Agencies are not alone in recognizing how "reg neg" can defuse controversies, damp down litigation, maximize compliance and forge lasting consensus. State authorities have conducted similar experiments when nothing else seemed to work. Vermont, for example, used negotiated rulemaking to master the challenge of controlling solid waste disposal and noise pollution. The University of Texas School of Law has created a Center for Public Policy Dispute Resolution that, in October 1996, published the Texas Negotiated Rulemaking Deskbook. Oregon is one of many states that have implemented guidelines for collaboration originally proposed by the Society of Professionals in Dispute Resolution (SPIDR). See http://www.odrc.state.or.US/ppbest.htm. In each of these cases, "reg neg" produced better rules precisely because it gave all of the concerned parties a genuine stake in the collaborative outcome. John T. Dunlop, a pioneer in public sector negotiated rulemaking and Secretary of Labor during the Ford Administration, captured the sense of legitimacy inspired by "reg neg" when he observed that, in American life, "a rule that is developed with the involvement of the parties who are affected is more likely to be accepted and to be effective in accomplishing its intended purpose." John T. Dunlop, The Limits of Legal Compulsion, 27 LAB.L.J. 67 (1976).

There are three essential prerequisites that must be satisfied if negotiated rulemaking is to work in the immigration context. "Reg neg" forces federal agencies to change their traditional approach to rulemaking in a fundamental way. They have to be willing to do that. If there is any institutional reluctance to engage in such intense collaboration with the regulated community,, if the agency staff equates "reg neg" with a loss of control or an abdication of authority, then "reg neg" is doomed from the outset and should not be attempted. Even if traditional rulemaking has not worked, the price of "reg neg" as an alternative solution may simply be too high for the agency's culture to tolerate or accept. Second, even if there is no cultural resistance, the regulators themselves must be ready to act. In one of the most perceptive guides to "reg neg", the Negotiated Rulemaking Handbook issued by the Department of Labor in 1992, ( hereinafter cited as "DOL Handbook"), then DOL Solicitor General Marshall Breger reminds us that timing is everything:

A key to a successful negotiation effort is having some force impelling the parties toward a timely solution. This means, in the first instance, that the agency must have reached a decision that it is, in fact, going to act on a particular problem, at least in some fashion, and by a specific date. Lacking such a decision, the agency has no incentive to put into the process the time and effort required, nor do the other parties have a strong incentive to continue to participate. DOL Handbook at 6, Part A.
The third, and perhaps most critical, precondition is a genuine willingness to compromise. In negotiated rulemaking, there does not have to be unanimity on every minor detail, but the overall rule must offer enough to everyone that all the parties feel they can live with it. At the same time, Solicitor General Breger reminds us there are limits to what can be bargained away: "Truly fundamental values that cannot be compromised by a party should not be central to the negotiation." DOL Handbook at 5, Part A. Compromise is not surrender and must not require the abdication of bedrock beliefs. "Negotiated rulemaking," Solicitor General Breger sagely reminds us "is not a process requiring that parties set aside their legal or political rights…negotiated rulemaking is not likely to succeed if the process is forced upon a party unwilling or unable to proceed." Id at 3,Part A.

In the immigration context, where the atmosphere in recent years has become so poisoned by bitter invective and shrill recrimination as to make civility a sign of weakness and sincerity subject to proof, whether the yawning chasm of diverse viewpoints can be bridged, or even substantially narrowed, is very much an open question. What may help here is the historic commitment displayed by the Department of Labor in support of negotiated rulemaking, well before the Negotiated Rulemaking Act became law. While acknowledging that few DOL agencies have easily or often used "neg reg", Solicitor General Breger treats it as an old friend:

The concept of negotiated rulemaking is not new to the Department of Labor. In fact, DOL was one of the earliest proponents of negotiated rulemaking and some of the initial efforts at rg neg took place in DOL rulemaking. Soon after enactment of the Negotiated Rulemaking Act, the Department amended its internal regulatory review procedures to require that Department of Labor agencies must consider using negotiated rulemaking to develop a rule when making an internal recommendation…The Office of the Solicitor of Labor initiated a series of almost a dozen seminars to study specific aspects of the negotiated rulemaking process. DOL Handbook at 2, Introduction.

The natural reaction of virtually the entire immigration community will be to dismiss negotiated rulemaking as pie-in-the-sky theorizing that bears little, if any, relation to the cut and thrust of immigration politics down in the pit where the big boys play. After all, skeptics rightly contend, if "reg neg" makes so much sense as the cure for our immigration maladies, why has it never been tried? Good question. The answer is neither easy nor obvious. What is blindingly transparent, however, is that what we have now simply has broken down . Years pass after Congress enacts major immigration legislation and, time after time, implementing regulations are nowhere to be found. Is there anyone who knows anything about immigration policy or practice who would not acknowledge a real and present need for rules that are clear, specific and technically accurate? Does America require earlier implementation of regulations or a higher compliance rate? Would our economy benefit from a more cooperative relationship between regulators and those they regulate? In the traditional adversarial process, do most commentators join in a creative exchange about possible solutions to ultimate problems or do they, instead, devote virtually all of their energies to probe the most arcane details of the agency draft? Does adversarial rulemaking facilitate mutual education on the proposed rule's practical effect? Does it help to keep jobs in the United States, protect American workers, or enrich employers? What is the cost to the parties and the rulemaking process itself arising from the perpetual cycle of adversarial research and positioning? Are the parties encouraged by traditional rulemaking to focus on the best way to formulate honest strategies most capable of resolving fundamental differences? The questions literally answer themselves.

Tomorrow: Go as Far as You Can: Part 2 of 2.

8 Bender's Immigr. Bull. 1110 (July 1, 2003).