Enhancing the Use of Negotiated Rulemaking by the U.S. Department of Education

Abstract

The 1998 Amendments to the Higher Education Act requires that, absent good cause for not doing so, the U.S. Department of Education (“ED”) promulgate all subsequent higher education regulations through a negotiated rulemaking process. The Act contains detailed consultation requirements and is quite prescriptive concerning the selection of members of the negotiating committee, which is tasked with seeing consensus on the text of a proposed rule (that is then subjected to the regular notice-and-comment rulemaking process). In addition, ED rulemaking is subject to a statutory 360-day deadline, and any final rules containing regulatory changes must be published by November 1 in order to be effective by July 1 of the following year. These two requirements combine to put a lot of time pressure on the Department to complete the required negotiating phase of the process. This has led to a low percentage of completed, fully agreed-upon, negotiated proposed rules.This study, done by the author for the American Council of Education, found that this mandatory process differed markedly from “classical” negotiated rulemaking under the federal Negotiated Rulemaking Act, in which an agency takes steps to ascertain at the outset whether such a process is workable and can take its time in obtaining consensus on a proposed rule. In interviews, the ED process was sharply criticized by participants as not a true negotiation, though most said they did not want to see it eliminated. The Department, for its part, defended its process, and the study concluded that the Department was acting rationally given the constraints it was working under. Nevertheless, the study concluded that numerous specific steps should be taken by the Department and Congress to enhance the process.