E.D. To Try 'Negotiated Rulemaking' Process

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Washington--When the Education Department begins drafting later this year the regulations that will implement changes in the Chapter 1 compensatory-education program, it will be using for the first time a process called "negotiated rulemaking."

Rather than simply putting their proposals in the Federal Register and awaiting comment, department officials will negotiate directly with education advocates on at least some of the law's provisions before they publish.

The procedure, which is used most extensively by the Environmental Protection Agency, gives representatives of groups affected by a new law a chance to meet and attempt to reach a consensus.

"It allows us a much bigger arena to voice our concerns and cut off schemes or interpretations others might want to work into the regulations," said Edward Kealy, director of federal programs for the National School Boards Association.

Under the standard regulatory process, the agency implementing a law can come up with a final rule that may or may not reflect the comments received after publication of the proposed rule in the Federal Register.

But in negotiated rulemaking, the agency agrees to propose the regulations adopted by the negotiators, and the remainder of the regulatory machinery proceeds from there.

The agency, as one party to the process, has an effective veto. It also decides issues on which no consensus can be reached.

Used for Asbestos Rules

Education representatives who were favorably impressed with negotiated rulemaking during the drafting of regulations for the8epa's school asbestos program talked senators into including a similar provision in S 373, the Senate's version of pending education reauthorization legislation. That provision would require the Education Department to use the process for Chapter 1.

"There are a lot of things in those [asbestos] regulations that we don't like, as there are going to be in any regulations," said Bruce Hunter, associate director of the American Association of School Administrators. "But we know why it is there and we felt we had the opportunity to discuss it."

The House reauthorization bill, HR 5, calls only for review of proposed regulations by panels of educators, so the issue will be decided in conference.

The Education Department had been firmly opposed to negotiation, but a department official and several Congressional sources said a compromise had been worked out.

They said that the final version of the bill will urge, not require, negotiation, and that the department will agree to use the process for some sections of the Chapter 1 rules.

Lobbyists for organizations representing school administrators, school boards, and teachers are particularly anxious to negotiate regulations for the controversial "program improvement" sections of the legislation, which they fear could give state agencies broad authority to intervene in local schools. (See Education Week, Feb. 10, 1988.)

Charles E.M. Kolb, the Education Department's deputy general counsel for legislation, confirmed that the department has agreed to experiment with negotiated rulemaking if it is not made mandatory in the bill. But he said department officials believe that negotiation "would be inappropriate in the context of our own regulatory activity."

Education regulations do not "impose burdens on the public" as environmental regulations do, he said, and are rarely litigated.

Aimed at Legal Challenges

A major motivation for epa's use of negotiation has been the desire to avoid legal challenges to regulations. The agency estimates that 80 percent of its regulations end up in court.

Other federal agencies that have tried negotiated rulemaking--such as the Occupational Safety and Health Administration, the Transportation Department, the Federal Trade Commission, and the Nuclear Regulatory Commission--have a regulatory function more like the epa's than the Education Department's.

But Chris Kirtz, director of the epa's regulatory-negotiation project, said there are other benefits that would apply to a grant program such as Chapter 1.

Even where the outcome of a negotiation draws criticism, he noted, the contested issues are narrowed, lessening the number of comments the agency will receive.

In addition, he said, negotiation improves the agency's relationship with interest groups and enables it to gain "real-world knowledge" useful in administering a program.

Mr. Kirtz also disputed Mr. Kolb's assertion that results from the epa's seven attempts at negotiated rulemaking had been mixed. He said the agency was pleased with the process and will continue using it.

While one of the epa's negotiations broke down, four others yielded a consensus and two reached a partial consensus, according to Mr. Kirtz. A recent epa report on negotiated rulemaking urges its continued use in "the right situations."

A 'Smashing Success'

One instance in which only partial consensus was reached was the school asbestos regulations, which have been challenged in court by one party to the negotiation, a group of former asbestos manufacturers.

Despite the lawsuit, however, Mr. Kirtz considers the asbestos negotiations a "smashing success," because they turned out a complex rule in a short time and substantially narrowed the area of dispute.

Advocates who worked on the asbestos regulations generally praised the negotiation concept in interviews, even though some were critical of the outcome.

"We felt we had been listened to," said Joel Packer, a legislative specialist for the National Education Association. "I think it was helpful for everybody in terms of a better understanding of what others' interests and concerns were, what the issues and options were."

The education advocates also said they had succeeded in adding details the epa would not likely have included, such as coverage for some external sections of buildings and stronger notification requirements for parents and employees.

"I think the process of negotiated rulemaking can be productive if given the proper framework and the proper time," said John Welch, president of the Safe Buildings Alliance, the organization challenging the asbestos rules. "In the asbestos negotiation, the parties had neither."

"It can't be a vehicle by which the agency wiggles out of its statutory responsibilities," he said, charging that epa had done so by failing to set maximum asbestos exposure levels.

'Striking a Deal'

After the asbestos negotiations ended last summer, Scott Strauss, a lawyer who represents the Service Employees International Union on the issue, co-authored an articlecritical of negotiated rulemaking for the weekly newspaper Legal Times.

In it, he said the process puts too much emphasis on consensus, rather than making the correct decision, and that it imposes an unfair time burden on understaffed interest groups.

In negotiation, Mr. Strauss wrote, "the agency is reduced to little more than a regulatory real-estate agent, whose true client is neither the buyer nor the seller, but the deal that can be struck between them."

But in a recent interview, Mr. Strauss said he had reassessed his position somewhat after union groups, including his client, decided not to challenge the asbestos regulations.

"Maybe we got more from the process than I thought," he said. "It does proceed from a good premise, inviting the public in before you write a rule."

But he said negotiators should not put consensus above all, and should not try to tackle especially sensitive issues that "go to the core of an interest group's existence."

"Industry groups cannot negotiate away millions of dollars of liability any more than union representatives can negotiate away the health of their members," he said.

Vol. 07, Issue 21

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