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

Abstract

Our review was limited to regulations currently in effect, and not to those that were still in development. Since the Task Force began its review, however, the Department has released major rulemaking packages for gainful employment, the Violence Against Women Act, and teacher preparation, as well as hundreds of pages of new sub-regulatory guidance.3 These regulations are derived from a lengthy matrix of problematic rules, appended to this report, that have been identified by the broader higher education community.

Research utilization in higher education rulemaking: A multi-case study of research prevalence, sources, and barriers

“…Federal rulemaking is the process through which a federal government agency creates regulations that implement the provisions of duly enacted authorizing statutes (Administrative Procedure Act, 2018; Kerwin & Furlong, 2011;Office of the Federal Register, 2011). The Higher Education Act (HEA) is an authorizing statute, and federal regulations created under its authority are developed through rulemaking in the U.S. Department of Education (Lubbers, 2014;Natow, 2017;Pelesh, 1994). Under the HEA, rulemaking that affects federal student financial aid programs must include a process known as negotiated rulemaking, during which the agency meets with stakeholders to debate and negotiate the content of a proposed rule.…”

“…This study examined the prevalence of and barriers to research utilization in federal higher education rulemaking, which is the process through which the United States Department of Education creates regulatory policy to administer provisions of the Higher Education Act (Lubbers, 2014;Natow, 2017;Pelesh, 1994). Regulations created through the rulemaking process have consequential implications for higher education institutions and students.…”

Negotiated Rulemaking for U.S. Higher Education Regulatory Policy: A Process of Deliberative Democracy?

“…Since its 1992 reauthorization, the Higher Education Act (2012) has required the Department of Education to employ negotiated rulemaking for regulations implementing Title IV federal financial aid programs (see also Lubbers, 2014;Natow, 2017;Pelesh, 1994). 6 The requirement to use negotiated rulemaking is unique; typically, federal agencies have discretion to choose to include negotiated rulemaking in their regulatory policy development if the agency determines that negotiations are warranted under the circumstances.…”

“…6 The requirement to use negotiated rulemaking is unique; typically, federal agencies have discretion to choose to include negotiated rulemaking in their regulatory policy development if the agency determines that negotiations are warranted under the circumstances. The Department of Education, however, is mandated to use negotiated rulemaking for regulations implementing Title IV (Lubbers, 2014). Prior to negotiated rulemaking, the Department must "obtain public involvement in the development of proposed regulations" and "provide for a comprehensive discussion and exchange of information concerning the implementation of this title through such mechanisms as regional meetings and electronic exchanges of information" (Higher Education Act, 2012, §492[a]).…”

“…For example, Hicks (2002) stated that negotiated rulemaking is a "more collaborative process of public involvement" than traditional notice-and-comment rulemaking, and that negotiated rulemaking 1 Although the Negotiated Rulemaking Act and Higher Education Act do not use the term "negotiator," this term appears frequently in the literature (e.g., Pelesh, 1994;Susskind & McMahon, 1985) and in the Federal Register (e.g., Federal Perkins Loan Program, 2007) to refer to negotiated rulemaking participants, and the term was used repeatedly by this study's interviewees who had participated in negotiated rulemaking in the Department of Education (see also Natow, 2017). 2 First authorized as a temporary policy in 1990, the Negotiated Rulemaking Act was permanently enacted in 1996 (Lubbers, 2014 provides "concerned citizens and coalitions a seat at the table during the initial stages of deliberation where problems are defined and agendas set" (p. 234).…”