Letters to Regulators: Letter to ED Recommending Protocols for Upcoming Negotiated Rulemaking

August 26, 2021  

Dr. Michelle Asha Cooper
Acting Assistant Secretary for Postsecondary Education
and Deputy Assistant Secretary for Higher Education Programs
United States Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202  

Re: Negotiated Rulemaking Protocols [Docket ID ED-2021-OPE-0077] 

Dear Dr. Cooper,  

We write in response to the August 10, 2021 Federal Register notice regarding nominations and the  schedule of committee meetings for negotiated rulemaking [Docket ID ED–2021–OPE–0077] to provide  recommendations for protocols guiding these important upcoming negotiation sessions. Although some  protocols from previous negotiated rulemaking processes remain useful, we see unique needs in an all virtual environment that demand attention to ensure equitable opportunity for input among  negotiators, guided by the ultimate goal of attaining consensus on essential regulations to protect the  interests of students, their families, and taxpayers who invest in financial aid and other programs. We  outline a set of recommended protocols below.  

Addition of Committee Members and Topics. When negotiations begin, any seated committee member  should have the opportunity to propose the addition of a committee member, subject to consensus  agreement among all other seated negotiators. In any case that a negotiator is added, the nominating  committee member should immediately provide contact information to the facilitator to enable the  newly appointed negotiator to join the virtual session.  

Similarly, at the outset of negotiations, any negotiator should have the opportunity to propose  additional topics for consideration during the three work periods, subject to consensus agreement  among all other seated negotiators (including, if applicable, any newly appointed committee members).  

Advance Materials to Prepare Committee Members. After selection, negotiators should receive  advance materials from the Department at least 7 business days before the beginning of each  negotiation week. These materials should include relevant data, Department and independent research  and policy reports, and prospective regulatory language to serve as starting points for negotiations. We  stand ready to assist in providing advance materials on topics on the agenda for this table of  negotiations.  

Participation of Alternates. The Department has indicated alternate negotiators may participate “for  the purpose of determining consensus in the absence of the primary negotiator.” We urge the  Department to provide guidance to alternate negotiators that they may fully participate in all negotiation discussions. Their only restriction should be on votes to determine consensus, when  alternates would vote only in the absence of primary negotiators.  

Public Commentary. Previous protocols have restricted public comment by negotiators: “Members will  refrain from characterizing the views, motives, and interests of other members during contact with the  media, the investment community, other organizations outside the community of interest represented  by the member, and to the general public through social media.” This requirement should remain in place.  

However, organizations represented by individuals should be given as much leeway to offer public  comments as possible. In the case that consensus is reached on a given topic, previous protocols have  articulated a restriction: “If the committee reaches consensus on regulations that have been grouped  together by the Department, the Department will use this consensus-based language in its proposed  regulations, and committee members and the organizations whom they represent will refrain from  commenting negatively on the consensus-based regulatory language” (emphasis added). In the past, this  language has disadvantaged student and consumer advocacy organizations with participating  negotiators. Unlike institutions, which are numerous and not constrained by the participation of one  person from their membership organization, student and consumer groups are much less numerous and  thus effectively silenced by this protocol. To maintain the proper balance of public comments on the  final regulation, if consensus is achieved, we ask that you clarify as narrow a restriction on public  comment as possible. This will ensure a diversity of perspectives weigh in on the agreed-upon proposal.  

In addition, we request clarification on whether this restriction would apply to members of the Prison  Education Program Subcommittee. Mindful that they will not be authorized to make decisions for the  full committee, may members of the subcommittee, and organizations they represent, comment on  other topics and proposals outside of the subcommittee’s scope?  

Scheduling. As our nation continues to confront the Covid-19 pandemic, we respect the need to conduct  negotiated rulemaking via video conference. We also note, however, the physical and mental taxation of  extended periods conducting meetings and work in a virtual environment. Therefore, we request the  Department set aside regular break times, in addition to a meal break and with at least one extended  break per day of negotiations. These breaks will give time for negotiators to attend to personal needs— which may include caretaking for children or other family members—and to refresh from extended  periods logged into negotiation meetings.  

We also note that negotiators should be drawn from across the country, meaning they will be spread  across at least three time zones. Accordingly, we ask that negotiation periods each day be mindful of  working hours for committee members outside the Eastern Time Zone.  

Finally, the Department should not schedule subcommittee meetings at the same time as other  subcommittee, working group, or committee meetings. 

Data Requests. In the event a negotiator submits a data request to the Department to clarify  implications of potential actions or deepen understanding of a topic, the Department should share that  data request with the entire committee. In addition, the Department should respond by the next  committee work period by either providing the requested data, stating if more time is needed and a  target date to provide the data, or if it cannot or will not provide all or a portion of the data. Should the  Department be unable to provide requested data, it should inform the committee and explain the  reasons it cannot or will not do so. 

Transcript Availability. The Department has indicated its intention to post video recordings and  transcripts of committee discussions via a website established for sharing 2021 rulemaking materials.  We request the Department post recordings and transcripts from all public sessions within two weeks  after their respective dates.  

Thank you for your consideration of these recommendations for protocols and negotiator  accommodations. We believe attending to these recommendations and reflecting them in the  Department’s approach to facilitating negotiated rulemaking will help ensure the best outcomes for  students, borrowers, and the general public. Please let us know how to be of any further support in this  critical process for the future of higher education.  

View or download a PDF of the letter here.