Page:Department of Education v. Brown.pdf/7

Rh regulations relating to student financial assistance. §1098bb(d). Negotiated rulemaking is a lengthy deliberative process involving many stakeholders. Pursuant to this process, the Secretary must first obtain “advice of and recommendations” from a long list of sources, including “individuals and representatives” of groups “such as students, legal assistance organizations that represent students, institutions of higher education, State student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty agency servicers, and collection agencies.” §1098a(a)(1). Then, informed by this consultation, the Secretary must submit draft regulations for consideration in a negotiation process involving participants who are “chosen by the Secretary from individuals nominated by” such groups. §1098a(b)(1). Only after taking these steps may the Secretary “publis[h] proposed regulations in the Federal Register,” ibid., accompanied by a summary of the information the Secretary received throughout the process, §1098a(a)(2). The HEROES Act, however, permits the Secretary to bypass this onerous process. §1098bb(d).

The HEROES Act also authorizes the Secretary to bypass notice-and-comment procedures that the Administrative Procedure Act (APA) would otherwise demand. The APA typically requires agencies to give the public “[g]eneral notice of [a] proposed rule making” by publication in the Federal Register, and then to provide “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments” regarding the proposed rule. 5 U. S. C. §§§ [sic]553(b), (c). The agency may promulgate a final rule only after providing notice and opportunity for comment. §553(c). But the HEROES Act instead permits the Secretary to implement the waivers and modifications he “deems necessary to achieve the purposes of” the Act merely by “publish[ing]” “notice in the Federal Register.” 20 U. S. C. §1098bb(b)(1).