The Post's most recent of two editorials criticizing the Education Department ["Student Loans (cont'd)," Oct. 4] again failed to mention that the president, in his fiscal 2005 budget, was the first to propose closing the 9.5 percent student loan loophole and reducing special allowance payments by $5 billion over the next decade.

The Post also neglected to note that the loophole is a result of a prior administration's interpretation of a department regulation. Without new legislation, the department would have to engage in a protracted regulatory process to change the policy because federal courts in the District have interpreted the law to require agencies to conduct rulemaking to change regulatory interpretations. Those are the facts.

Despite the Government Accountability Office's suggestion to the contrary, the department cannot invoke the "public interest" exception to rulemaking here. Rulemaking is in place so that the public can be included in the process. For this reason, courts require that exceptions to the regulatory process be used sparingly and only in emergencies. We are hard-pressed to suddenly characterize as an "emergency" situation a practice that was explicitly authorized by the Clinton administration eight years ago. This administration takes a back seat to no one in its determination to close the 9.5 percent loan loophole; indeed, President Bush has been pushing this issue for months.

The most appropriate and quickest place to end this practice is the halls of Congress, not through the lengthy regulatory process. Unfortunately, The Post's editorial failed to point out that Democrats in Congress have stymied Republican efforts to get this loophole abolished sooner rather than later.


General Counsel

U.S. Department of Education