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Negotiated Rulemaking – What You Need to Know and How You Can Participate

Negotiated Rulemaking – What You Need to Know and How You Can Participate. David Bergeron U.S. Department of Education. What is negotiated rulemaking?. Traditional rulemaking Agency develops NPRM and publishes for public comment Agency publishes final rules. Negotiated rulemaking

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Negotiated Rulemaking – What You Need to Know and How You Can Participate

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  1. Negotiated Rulemaking – What You Need to Know and How You Can Participate David Bergeron U.S. Department of Education

  2. What is negotiated rulemaking? • Traditional rulemaking • Agency develops NPRM and publishes for public comment • Agency publishes final rules • Negotiated rulemaking • Agency works to develop NPRM in collaboration with significantly affected parties • Agency publishes NPRM for public comment • Agency publishes final rules

  3. Origin and purpose • Negotiated Rulemaking Act of 1996 • Increase the acceptability and improve the substance of rules • Higher Education Act • Negotiated rulemaking required for Title IV student financial aid programs • Public hearings to obtain input on issues to be negotiated

  4. Process Overview • Publish notice of intent to regulate • Obtain public feedback on issues to regulate • Select negotiators • Convene meetings for negotiations • Publish Notice of Proposed Rulemaking (NPRM) • Publish Final Regulations

  5. Notice of intent to regulate • Publish notice in the Federal Register that • Indicates intent to conduct negotiated rulemaking • Identifies issues for the committee(s) to address • Announces public hearings and solicitation of written comments (Regulations.gov)

  6. Notice of intent to regulate How are the initial issues to be negotiated determined? • Newly enacted laws • Issues identified by ED, often through its interaction with the public

  7. Selection of negotiators • Notice in the Federal Register that includes: • List of issues the committee(s) will address • Schedule for negotiations • Solicitation of nominations for negotiators

  8. Selection of negotiators • Adequate representation • Generally limited to 25 members • Typical size of ED committee is 12-15 members • Alternates • Federal negotiator(s)

  9. Selection of negotiators • HEA lists specific constituencies that may be included; for example, students, institutions of higher education, state agencies, and accrediting agencies

  10. Selection of negotiators • In response to the notice in the Federal Register, individuals wishing to serve as negotiators send to ED: • A description of the interests they would represent (constituency) • Evidence of expertise or experience in issues to be negotiated • Evidence of support from constituency • Commitment to participate in good faith • Contact information • Individuals may nominate themselves

  11. Selection of negotiators • From nominations, ED selects committee members who: • Represent significantly affected constituencies • Demonstrate expertise or experience in the relevant subjects under negotiation • Reflect the diversity in the industry (including large and small constituents, geographic diversity, diversity in institutional type)

  12. Selection of negotiators • Individuals not selected may provide comment through: • Representative of constituency • Invitation from committee member to participate in informal working groups • Time set aside at the end of each negotiation session for public comment • Written comments in response to the published NPRM

  13. Meetings for negotiations • ED holds a series of meetings during which non-federal negotiators work with ED to come to consensus on the proposed rules • Facilitated by a neutral third-party • Typically three sessions • Roughly monthly intervals • Three to five days per session

  14. Meetings for negotiations • First meeting • Adopt protocols • Finalize committee members • Finalize agenda • Begin negotiations

  15. Meetings for negotiations • Consensus: No dissent by any member • Absence or silence=no dissent • All agreements are tentative until all of the issues are considered • Members may not withdraw their consensus • Result: ED uses consensus-based regulatory language in its NPRM and negotiators and those persons and entities whom they represent may not comment negatively

  16. Meetings for negotiations If consensus is not reached • ED determines whether to proceed with regulations • If proceeds, 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

  17. Publish Regulations • Publish NPRM in the Federal Register • Regulatory language • Preamble language • Request for public comments with deadline • Publish final regulations in the Federal Register • Summary of comments • ED’s response to comments • Explanation of any changes made to the regulations that differ from the proposed regulations

  18. Recent Negotiated Rulemaking Activities 2011-12 2012-13

  19. Negotiated Rulemaking 2011-12 • May 5, 2011—Notice in Federal Register announcing intent to establish a negotiated rulemaking committee • Issues • Teacher Preparation • Title IV Loan Programs

  20. Negotiated Rulemaking 2011-12 • Public hearings • May 16, 2011--Tacoma, Washington • May 19, 2011--Chicago, Illinois • May 26, 2011--Charleston, South Carolina

  21. Negotiated Rulemaking 2011-12 Written comments available at Regulations.gov for docket ID ED-2011-OPE-0003. Public hearing transcripts and additional information on 2011-12 effort available at: http://www2.ed.gov/policy/highered/reg/hearulemaking/2011/index.html.

  22. Negotiated Rulemaking 2011-12 • Title IV Loan Issues • Committee met January, February, and March of 2012 • Consensus • Teacher Preparation • Committee met January, February, and April of 2012 • No consensus

  23. Negotiated Rulemaking 2012-13 • May 1, 2012—Notice in Federal Register announcing intent to establish a negotiated rulemaking committee • Issues • Distance education fraud • Disbursement of Title IV funds • Campus-based Programs

  24. Negotiated Rulemaking 2012-13 • Public hearings • May 23, 2012—Phoenix, Arizona • May 31, 2012—Washington, DC

  25. Negotiated Rulemaking 2012-13 Written comments available at Regulations.gov for docket ID ED-2012-OPE-0008. Public hearing transcripts and additional information on 2012 effort available at: http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/index.html.

  26. Current status/next steps • Loans • Teacher Preparation • Fraud

  27. Questions??

  28. Contact information David Bergeron Acting Assistant Secretary for Postsecondary Education David.Bergeron@ed.gov 202-502-7950

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