What is negotiated rulemaking?
How are the issues to be negotiated determined?
How are negotiators selected?
Is negotiated rulemaking open to the public?
How is the negotiated rulemaking process structured and what is the time commitment for a negotiator?
How is consensus defined for purposes of negotiated rulemaking?
What happens after the negotiations have concluded?
Typically, the Department of Education (the Department) develops its proposed 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. Under negotiated rulemaking, the Department works to develop an NPRM in collaboration with representatives of the parties who will be affected significantly by the regulations. This is done through a series of meetings during which these representatives, referred to as negotiators, work with the Department to come to consensus on the Department’s proposed regulations. These meetings are facilitated by a neutral third-party.
The Department is specifically required by law to use negotiated rulemaking to develop NPRMs for programs authorized under Title IV of the Higher Education Act of 1965, as amended (Title IV programs) unless the Secretary determines that doing so is impracticable, unnecessary, or contrary to the public interest. The Department generally follows these same procedures when it uses negotiated rulemaking to develop NPRMs for programs other than the Title IV programs.
The issues to be negotiated come from three sources: newly enacted laws, the Department, and the public. Because negotiated rulemaking is required for development of NPRMs for the Title IV programs, newly enacted statutory provisions for which Title IV regulations are needed are automatically included on an agenda for negotiated rulemaking (unless the Secretary determines that negotiated rulemaking is impracticable, unnecessary, or contrary to the public interest; see Q1&A1). Other issues for negotiated rulemaking are identified by the Department when it makes a determination that existing regulations need to be amended.
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. This Notice announces a public meeting (or meetings) to obtain advice and recommendations on the issues to be negotiated from the public. The Department may also solicit written submissions of advice and recommendations.
After consideration of this public input, 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. 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.
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. Before nominating an individual to participate as a negotiator, the nominator should confirm that the potential nominee can and will make the necessary time commitment to the process (see Q5&A5).
The Department selects negotiators for a committee from the list of nominees with the goal of providing adequate representation for the affected parties while keeping the size of the committee manageable. By law, a federal agency must limit membership on a negotiated rulemaking committee to 25 members unless the agency head determines that a greater number of members is necessary for the functioning of the committee, or to achieve balanced membership. 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. The committee may also add members at the committee meetings, subject to the full committee’s approval.
Individuals who are not selected as negotiators but who will be affected by the regulations may still participate in the proceedings in several ways, such as having access to the individuals representing their constituency to express their views, and participating in informal working groups on issues between meetings. For more on the public’s role in the negotiated rulemaking process, see Q4&A4. Of course, individuals who are not selected as negotiators--like any other member of the public--can always submit comments in response to the published NPRM.
Members of the public may observe meetings of the negotiating committee, but cannot speak unless recognized by the committee. Typically, at the end of each day’s meeting, the committee provides an opportunity for the public to comment. Caucuses (i.e., meetings of smaller groups of negotiators) are open to the public at the discretion of the negotiating committee.
Printed materials used by the negotiators are available to the public on the Department’s negotiated rulemaking Web site. The address for this Web site is announced in the Federal Register Notice announcing the members of the committee.
The committee protocols usually address how the negotiators may interact with the media.
A negotiating committee usually meets for three sessions at roughly monthly intervals. Each session usually lasts three days. The number of sessions, meetings in a session, length of the session meetings, and the time between sessions may vary depending on the issues being negotiated.
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.
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. Again, a nominator should confirm that a potential nominee can and will make the necessary time commitment to the process before nominating an individual to participate.
Consensus means that there is no dissent by any member of the negotiating committee. Thus, no member can be outvoted. The absence or silence of a member at the time the final consensus vote is taken is equivalent to not dissenting. 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.
If consensus is achieved, the Department uses that regulatory language in its NPRM. If consensus is not achieved, the Department determines whether to proceed with regulations. If the Department decides to proceed with regulations, it may use regulatory language developed during the negotiations as the basis for its NPRM, or develop new regulatory language for all or a portion of its NPRM.
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). If consensus was reached, 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. If the committee did not reach consensus, the preamble language is not shared with the negotiators.
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.