Yet neither railroads, unions nor FRA believe those unsuccessful negotiations were a waste of time. Negotiations force participants away from the wish list mentality that pervades the traditional rulemaking process, said James Brunkenhoefer, national legislative director for the United Transportation Union. In a regular rulemaking, all parties file their wish list, what would be their dream regulation. Then the agency picks out various pieces and makes it a nightmare. A negotiated rulemaking cuts through that.
Negotiators can pick out what is a dream and what is reality and deal primarily with that.
The power brake rulemaking was one where there was a pretty big gulf between the parties, but even where you have a gulf, the people who are making the rules are being exposed to a lot of information in an arena that is not necessarily adversarial, said Tom White, a spokesman for the Association of American Railroads. Several tangible benefits emerged, Mr. Cothen said. AAR revised some of its interchange rules and single-car test requirements as a result of the advisory committee s efforts. They didn t wait until a rule came out to implement changes, he said. A secondary effect was that people realized why FRA was unable to issue a rule earlier.