It feels like déjà vu. Just like in 2007, we're ringing in the new year with another round of negotiated rulemaking (negreg) sessions. But what is negotiated rulemaking and why is it important to financial aid administrators? This article answers those questions and tells you how you can get involved in the process.
Negotiated rulemaking is the process federal agencies use to formulate rules and regulations. Some rules and regulations focus on new legislation or legislative directives from Congress while others improve current regulations that need some tweaking because they are too administratively burdensome to comply with or because they aren't fulfilling their legislative intent.
Negotiated rulemaking began in the 1980s, but wasn't used extensively until the Negotiated Rulemaking Act of 1990 encouraged all federal agencies to use it to enhance the rulemaking process.
Negotiated rulemaking begins when a federal agency (in the case of federal student aid the Department of Education) convenes an advisory committee to discuss proposed regulatory changes. The committee consists of 12 to 25 individuals who represent parties that would be affected by the rules. The advisory committee attempts to draft proposed rules by consensus, usually meaning unanimous agreement (not majority) by all participants. While this is the usual definition of consensus, the Administrative Procedure Act allows each committee to define consensus differently.
Pros and Cons of Negotiated Rulemaking
In most cases negotiated rulemaking for the federal student aid programs leads to better rules and regulations that are easier to implement and better benefit intended financial aid recipients. It allows those affected by the rules to give direct input into their feasibility. Rules drafted under this process also tend to be more technically accurate, clear, and have been found to be less likely to be legally challenged in the future.
However in some cases, negotiated rulemaking can become highly contentious when participants fail to reach any consensus. Such was the case last year in the negotiated rulemaking sessions that focused on federal student loans and the ACG and National SMART Grants.
When negotiators fail to reach consensus, the federal agency is permitted to continue its rulemaking process without considering any of the input from negotiators. When negotiators failed to reach consensus last year, the Department drafted its own rules. In such cases, the Department says it tries to draft rules in accordance with agreements reached during the rulemaking sessions. But in some instances, the Department drafts regulations that some or all negotiators disagree with.
Ultimately, it should be remembered that negotiated rulemaking is a voluntary process. Even in instances where there is consensus, there are no laws constraining any agency to abide to the rules drafted during negreg. Federal agencies are directed to always act in the best interest of the public and are not bound to agreements forged during negreg. However, changing rules where consensus has already been reached would certainly undermine the credibility of the agency and the negreg process.
How To Get Involved
Public comment - while sometimes allowed - is not really part of negreg. Instead, interested parties are encouraged to work through the negotiators who represent them. After the negotiated rulemaking process the Department will still issue a Notice of Proposed Rulemaking (NPRM) where the public is allowed to submit comment before issuing final rules, which are usually implemented during the following year.
Interested parties should not wait until the public comment period to get involved. It is critical that the student aid community work through their associations and/or the committee members directly during the negreg process, when their opinions are likely to have the most impact. Certainly changes to rules can result from public comment after the NPRM, but concerns are better handled when raised before the regulations are even drafted into an NPRM. Let your voice be heard in the 2008 negotiated rulemaking process by contacting NASFAA directly at negreg@nasfaa.org.
The Secretary has announced two negotiated rulemaking committees that will focus on the TEACH Grants and federal student loans.
NegReg 2008
Throughout the upcoming negreg process, NASFAA will provide comprehensive coverage of the negreg sessions including summaries, positions, and other media news reports.
Agenda items and committee members are as follows:
TEACH Grant Negotiated Rulemaking Information
Topics for the TEACH Grant negreg will include:
- Institutional Eligibility
- Program Eligibility
- Conversion of Grant to Loan
- Repayment
- Conforming Changes
This list of topics is tentative. Topics may be added as the process continues. Three negreg sessions are to be held beginning today and running through February. The dates of these sessions are:
Session 1: January 8 - January 10.
Session 2: January 22 - January 24.
Session 3: February 6 - February 8.
Student Loan Negotiated Rulemaking Information
Topics for the student loan negreg will include:
- Income-based Repayment Plan (IBR).
- Conforming the Economic Hardship Deferment with IBR.
- Public Service Loan Forgiveness.
- Definition of Not-for-Profit Holder.
- Harmonizing HEROES Waivers with Other Benefits Provided to Returning and Active Duty Military.
- Federal Preemption of State Laws Related to improper inducements and arrangements between schools, lenders and other entities in the students loans programs.
This list of topics is tentative. Topics may be added as the process continues. Three negreg sessions are to be held beginning today and running through March. The dates of these sessions are:
Session 1: January 14 - January 16.
Session 2: February 4 - February 6.
Session 3: March 3 - March 5.
Teach Grant Negotiators
Elementary and Secondary Education and Alternative Routes to
Teacher Certification:
Dr. Nell Ingram, Dallas Independent School
District
Four-year Public Institutions:
William Graves, Dean, Darden College
of Education, Old Dominion University
Sandra Robinson, Dean, College of Education, University of Central
Florida
Joseph Pettibon, Assistant Provost, Student Financial Aid, Texas
A&M University
Herbert Brunkhorst, Professor of Science, Education and Biology,
and Chair, Science, Math and Technology Education, California State
University San Bernardino
Alternates: J Robert Hendricks, Associate Dean, College of
Education, University of Arizona
Beth Stack, Director of Operations, Student Financial Services,
University of Pittsburgh
Jan Lariviere, Associate Director for Teacher Development, Center
for Science Education, University of Kansas
Four-year Private Institutions:
Janet Dodson, Director of Financial
Aid, Doane College
Scott Fleming, Government Relations, Georgetown University
Ellis Salim, Director of Financial Aid, Baker College
Alternates: Bernard Pekala, Director of Financial Strategies,
Boston College
Thomas O'Neill, Jr, President, Association of Independent Colleges
and Universities of Nebraska
Two-year Public Institutions:
Patrick Moore, Director of Financial
Aid, Delaware Technical and Community College
For-Profit Institutions:
Marry Dorrell, Corporate Vice President of
Student Finance, Career Education Corporation
Students:
Carmen Berkeley, United States Students Association
Alternate: Cedric Lawson, United Council of University of Wisconsin
Students
Associations:
Terry Hartle, Senior Vice President, American Council
of Education
Alternate: Cyndy Littlefield, Association of Jesuit Colleges and
Universities
Department of Education:
Student Loan Negotiators
Students:
Luke Swarthout, United States PIRG
Alternate: Rebecca Thompson, United States Student Association
Graduate and Professional Students:
Carrie Steere-Salazar, American Association of Medical Colleges
Alternate: Radhika Miller, National Lawyers Guild Partnership for
Civil Justice
Legal Aid:
Deanne Loonin, National Consumer Law Center
Alternate: Lauren Saunders, National Consumer Law Center
Four-year Public Institutions:
Allison Jones, California State University
Alternate: Anna Griswold, Pennsylvania State University
Four-year Private Institutions:
Eileen O'Leary, Stonehill College
Alternate: Kathleen Koch, Seattle University School of Law
Two and Four-year Public Institutions:
George Chin, City University of New York
For-profit Institutions:
Mark Pelesh, Corinthian Colleges
Alternate: Tammy Halligan, Career College Association
Lenders--For-Profit:
Tom Levandowski, Wachovia Corporation
Alternate: Walter Balmas, MyRichUncle
Lenders--Non-Profit:
Scott Giles, Vermont Student Assistance Corporation
Alternate: Phil Van Horn, Wyoming Student Loan Corporation
Guaranty Agencies:
Gene Hutchins, New Jersey Higher Education Student Assistance Authority
Alternate: Dick George, Great Lakes Higher Education Guaranty
Cooperation
Servicers:
Wanda Hall, EDFinancial Services
Alternate: Rob Sommers, Sallie Mae
Collection Agencies:
Martin Darnian, Windham Professionals
Alternate: Carl Perry, Progressive Financial Services
Associations:
Department of Education:
By Justin Draeger
NASFAA Assistant Director for Communications
Posted 01/08/08 to www.NASFAA.org. Redistribution to non-NASFAA institutions is prohibited. Please submit Web Site questions or comments to Web@NASFAA.org.
