Negotiated Rulemaking or Regulatory Negotiation Process

LEGISLATIVE RELATIONS COMMITTEE

Negotiated Rulemaking or Regulatory Negotiation Process

Required as stated in HEA (Sec. 492A)

A.    The issues to be negotiated come from three sources: newly enacted statutes (written laws), the Department, and the public.

B.    Once the Department determines that rulemaking is necessary it publishes a Notice in the Federal Register announcing its intent to conduct negotiated rulemaking and identifying the areas in which it intends to develop or amend regulations. The Secretary of Education must obtain public involvement in the development of proposed regulations. There are meetings with interested parties to discuss the negotiated rulemaking process.

C.    The Department develops a list of the issues that a negotiating committee (or committees) is likely to address, and publishes the list in another Notice in the Federal Register.

D.    Solicit nominations for negotiated rulemaking non-federal members. When the negotiating committee first meets, members may suggest additional issues that may be added to the agenda, subject to the full committee’s approval.

a.     Members - Negotiators are nominated by the public, and selected by the Department. In the same Federal Register Notice that announces the Department’s intent to conduct negotiated rulemaking or a subsequent Notice, the Department solicits nominations for negotiators to represent the constituencies who will be significantly affected by the regulations. The Department identifies in the Notice the constituencies it believes will be significantly affected. This may include, but is not limited to, students, legal assistance organizations that represent students, institutions of higher education, state student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty agency servicers, collection agencies, state agencies, and accrediting agencies. The Department welcomes nominations for representatives of other constituencies who are thought to be significantly affected. Typically, the Department convenes committees of 12 to 15 negotiators, as well as an alternate for each negotiator to ease attendance concerns for negotiations consisting of multiple sessions. Each committee includes at least one Department representative. Once members of a committee have been confirmed, the Department publishes another Notice in the Federal Register announcing the committee and its membership.

b.   Rulemaking Steps - This Notice announces a public meeting (or meetings) to obtain advice and recommendations on the issues to be negotiated from the public.

E.     Committee Approves Protocols and Finalizes Agenda Topics-The first order of business for a negotiating committee is to finalize the agenda and protocols, which are agreed upon by consensus of the committee. Once the agenda and protocols are finalized and agreed upon, the committee begins its negotiations of the issues on the agenda.

F.     The Department of Education submits thoughts and ideas and the committee reacts and negotiations begin-During the time between sessions, the Department drafts and amends the proposed regulatory language based on committee discussions and on any tentative agreements reached on the issues. The Department provides this draft regulatory language to the negotiators prior to the subsequent session. Subcommittees formed by the negotiators may meet during this time to work on specific issues. The subcommittees bring the results of their discussions to the full committee when it reconvenes.

G.    Consensus means that there is no dissent by any member of the negotiating committee. All agreements reached during the negotiations are assumed to be tentative agreements until members of the committee consider all of the issues included on the agenda, and vote on the entire proposed regulatory language at the end of the final session of the negotiated rulemaking. If final consensus is achieved, committee members may not withdraw their consensus and the Department will use this consensus-based regulatory language in its NPRM. Only under very limited circumstances may the Department depart from this language.

H.    Once a consensus is achieved, the Department uses that regulatory language in its Notice of Proposed Rulemaking (NPRM).

I.      Once the proposed regulatory language for the NPRM is finalized, the Department drafts the preamble language (the portion of the NPRM that explains the proposed regulatory text). The Department usually shares the preamble language with the negotiators who may review it for accuracy. Although the preamble language is not negotiated, the Department may agree during the negotiations to include in the preamble explanations of certain issues.

J.      When the NPRM is published in the Federal Register, it contains a request for public comments and a deadline for submitting those comments. If consensus was reached, negotiators and those persons and entities whom they represent may not comment negatively on the consensus-based regulatory language. The Department considers the comments received by the close of the comment period in developing final regulations. The final regulations published in the Federal Register contain the regulations with which affected parties must comply and the date by which they must do so. The preamble of the final regulations includes a summary of the comments received, the Department’s response to the comments, and an explanation of any changes made to the regulations that differ from the proposed regulations.