Demystifying Negotiated Rulemaking

Since Sept. 9, 2009, when the Department of Education (DOE) first published a notice in the Federal Register announcing its intent to establish negotiated rulemaking committees to discuss proposed regulations under Title IV of the Higher Education Act of 1965, the career college sector has been on the edges of our seats. Waiting to see what the outcome of the negotiations would mean for our sector has been scary, stressful and, at times, frustrating.

Even with the understanding that DOE recommendations are often softened during the negotiated rulemaking sessions, we’ve been understandably anxious. Just three of the negotiated rulemaking panel’s 28 spots were allotted to representatives of private, for-profit institutions, and the proposed issues, including incentive compensation and gainful employment, have the potential to severely alter the way we run our schools.

At the time of publication, the second round of negotiated rulemaking dealing with program integrity issues had just taken place on Dec. 7-11, 2009. The negotiators of this session discussed incentive compensation, gainful employment, the definition of a credit hour, the timing of aid disbursement and other issues. They began fine-tuning the draft regulations and offered suggestions, changes and complete counter-proposals to the DOE’s proposed language.

Because it’s still unknown exactly what will come of the discussions, as a final negotiated rulemaking session is slated for Jan. 25-29, 2010, Career College Central has taken this time in limbo to peek beyond the veil of negotiated rulemaking. We’ve compiled information from the DOE to try to remove some of the mystery from the negotiated rulemaking process.

When and why is negotiated rulemaking used?
Usually, the DOE develops its regulations without public input and then publishes them in the Federal Register for comment by the public. The published document is known as a notice of proposed rulemaking or NPRM.

However, when developing NPRMs for programs authorized under Title IV of the Higher Education Act of 1965, the DOE is required by law to use negotiated rulemaking, unless the Secretary of Education determines that doing so is impracticable, unnecessary or contrary to the public interest.

Under negotiated rulemaking, the DOE meets to develop an NPRM in association with representatives of the parties who will be most affected by the proposed regulations. Through a series of meetings facilitated by a neutral third-party, these representatives (referred to as negotiators) work with the DOE to come to a consensus on the proposed regulations.

How are the issues up for negotiation determined?
The issues up for negotiation are determined by newly enacted laws, the DOE and the public. Because negotiated rulemaking is required for the development of NPRMs for Title IV programs, newly enacted statutory provisions for which Title IV regulations are needed are automatically included on an agenda for negotiated rulemaking. Other issues for negotiated rulemaking are identified when the DOE determines that existing regulations need to be amended.

Once the DOE determines that negotiated rulemaking will take place, it publishes a notice in the Federal Register that announces its intent to conduct negotiated rulemaking and identifies the areas in which it intends to develop or amend regulations. This notice announces a public meeting (or meetings) to obtain advice and recommendations on the issues to be negotiated. The DOE may also solicit written submissions of advice and recommendations.

After consideration of this public input, the DOE develops a list of the issues that the negotiating committees are likely to address and publishes the list in another notice in the Federal Register. 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.

Who are the negotiators, and how are they selected?
Committees for negotiated rulemaking are nominated by the public and chosen by the DOE. Additionally, each committee includes at least one DOE representative.

In the same Federal Register notice that declares the DOE’s intent to conduct negotiated rulemaking, the DOE solicits nominations for negotiators to represent the community expected to be significantly affected by the proposed regulations.

The DOE then selects the negotiators to provide representation for the affected groups, while keeping the size of the committee under a certain size. By law, a committee must be limited to 25 members, unless the agency head determines that a greater number of members is necessary. Usually, the DOE assembles committees of 12 to 15 negotiators, plus alternates, and at least one DOE representative.

After the committee members have been selected, the Department publishes another notice in the Federal Register announcing the committee and its negotiators.

How is the negotiated rulemaking process structured?
Traditionally, the negotiating committee meets for three three-day sessions, scheduled with approximately a month between each. The number of sessions, meetings in a session, length of the session meetings and the time between sessions may vary depending on the issues up for negotiation.

The DOE representative begins each session by going over the agenda and protocols for the session. Once the agenda and protocols are finalized and agreed upon, the committee begins its negotiations of the issues.

In the lapses between sessions, the DOE drafts and amends the proposed regulatory language based on committee negotiations and makes note of any tentative agreements the committee members may have reached. Then, the DOE provides this draft of the regulatory language to the negotiators prior to the following session.

How does a negotiating committee define "consensus"?
In negotiated rulemaking, a consensus means that there is no dissent by any member of the committee. Decisions have to be unanimous, and no member can be outvoted. However, the absence or silence of a member at the time the final consensus vote is taken is equivalent to not dissenting. Still, 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. Once a concluding consensus is achieved, committee members cannot change their votes. Then, the DOE will use the agreed-upon regulatory language in its NPRM.

Is negotiated rulemaking open to the public?
Individuals who are not on the negotiating committee are allowed to observe negotiated rulemaking sessions, but they are not allowed to speak unless they are recognized by the committee. At the end of each meeting, the committee opens the floor for public comments and questions.

Printed materials used by the negotiators are available to the public on the DOE's negotiated rulemaking web site. Visit www.Ed.Gov/Policy/HigherEd/Reg/HEARuleMaking/2009/NegReg-SummerFall.html for more information.

By Jenni Valentino

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