Last Updated: January 22, 2024
Overview
Negotiated Rulemaking (Neg Reg) for higher education is the U.S. Department of Education (“the Department”) process used to develop proposed federal regulations or rules for implementing elements of the Higher Education Act (“HEA”). The HEA is a federal law enacted in 1965 and reauthorized in 2008 that governs the administration of federal higher education programs, such as federal financial aid.
While the Department can publish certain proposed regulations without going through the negotiated rulemaking process, in most cases, they are required by law to use negotiated rulemaking to develop proposed regulations for all programs authorized under Title IV (federal financial aid funds) and teacher quality enhancement of the Higher Education Act. This legislative requirement tied to Title IV makes the rulemaking process at the Department of Education more frequently used than at other federal agencies, who can also employ Neg Reg. While the Education Secretary can waive this requirement if “impracticable, unnecessary, or contrary to the public interest”, the Department usually abides by this rule. It is important to note that the Department also coordinates negotiated rulemaking around regulatory areas which may not be required by law.
This process matters to institutions of higher education because there are regulations being created on a regular basis that directly impact their operations. If institutions do not follow these regulations, institutions can be penalized in a number of ways, including requiring institutions to pay significant fees, requiring institutions to reimburse student tuition, or denying institutions the ability to participate in Title IV. Examples of regulations that have gone through the Neg Reg process include the recent Pell Grants for Prison Education Programs and the refined requirements regarding “regular and substantive interaction” that distinguish a distance education course from a correspondence course.
General Timeline and What Occurs During Neg Reg
When the Department plans to undergo negotiated rulemaking, it publishes a Notice in the Federal Register, which is the US government’s official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. This notice announces a public meeting(s) for feedback or advice on the issues to be negotiated. After receiving feedback from the public, the Department publishes the list of issues that the Neg Reg committee will address in another Notice in the Federal Register. Additional items to be negotiated may also be added to the agenda during the first Neg Reg meeting, subject to approval by the full committee. The first action the committee must take is to finalize the agenda.
The Neg Reg committee typically meets for three sessions over the course of three months (1 session/month). Each committee session generally lasts four days. However, despite these general guidelines, it’s important to note that this is all flexible and variable. Everything from the number of sessions to the length of the sessions to the time in between sessions may vary depending on the issues being negotiated. Neg Reg does not adhere to a fixed calendar date or specific timeline and may take months, or even years to complete. The public is notified of important dates once the Neg Reg kicks off in order to ensure transparency in the process.
During these sessions, the committee members begin negotiating the issues on the agenda. The Department will draft and amend the proposed regulatory language issue papers and alter these throughout the sessions based on the committee discussions. Sometimes, subcommittees may form and meet in between sessions to work on issues raised during the sessions. Before each session reconvenes, the Department and subcommittees will provide their revisions and updates to the full committee.
How the Neg Reg Committee is Formed
The negotiations are conducted by committees of around 15 representatives (and generally restricted up to a maximum of 25), known as “negotiators,” who are nominated by the public and selected by the Department. The Department identifies, before nominations, the different stakeholder groups who would be significantly affected by regulatory changes, and asks for the negotiators to represent these communities during the process. The nominations process is then opened to the public to apply, or submit names of potential negotiators and provides details of how to submit, which may include a letter of support, along with CV and any supporting information. The nomination process is normally open for 30 days.
When forming the group, the Department of Education also gets one seat reserved for a representative from their staff to serve as part of the committee and represent the goals of the Administration. Oftentimes, these stakeholder groups will include representative groups such as different institutional groupings such as two-year publics, two-year privates, four-year publics, private nonprofit, and proprietary. There also may be representatives such as state Attorneys General, other officials including state higher education executive officers, as well as consumer advocates and even student representatives. There also is a facilitator who can be from the Department, or a third-party who helps to move along and act as a moderator to keep the negotiators on track, and ensure all negotiators are allowed to have sufficient input when serving.
After the committee members are chosen, the group may develop its own operating mechanisms, like rules of conduct, attendance, and establishing a proposed deadline for the committee’s function.
How a Neg Reg Committee Concludes and Influences Regulation
A negotiated rulemaking ends in two ways - 1) with consensus on all of the regulatory language tweaks, or 2) without consensus. For each committee, the goal is to get consensus by all of the negotiators on 100% of the regulatory alterations. If consensus is achieved, the Department is required to use the regulatory language developed during the negotiations for the proposed rules. If consensus is not achieved, the Department gets to decide whether it wants to proceed with the regulations and if so, may use the language from the negotiations as a basis or develop their own language for the proposed rules.
Once the committee wraps up its work, the Department creates proposed rules based on either the consensus language or its own language. Once they are ready to provide this rule as a proposed rule, it is published in the Federal Register for public comment, usually for one to two months of comments. These published proposed rules are known as a Notice on Proposed Rulemaking (“NPRM”). After the comments are gathered on the proposed rule, the Department replies to them, and decides whether or not to make changes to any of the language before releasing a final rule. The rule must be published before November 1st to be able to go into effect the following calendar year on July 1st, based on Federal Calendar laws.
Resources
- Negotiated Rulemaking for Higher Education - Frequently Asked Questions from the US Department of Education
- Congressional Research Service (CRS) Brief on Negotiated Rulemaking
- Negotiated Rulemaking for Higher Education 2023-2024 from US Department of Education
- About the Federal Register
- UPCEA’s Government Affairs, Policy, and Advocacy Resources
- UPCEA CORe
History of Changes/Authorship
This guide was originally authored by Kristen Brown of the University of Louisville and Jordan DiMaggio of UPCEA with input by the UPCEA Policy Committee and Staff. It was first published on January 22, 2024.
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