Neg Reg – What is it and How Can You Participate? Phil Van Horn – WSLC Janet Dodson - NSLP

Neg Reg – What is it and How Can You Participate?Neg Reg – What is it and How Can You Participate?

Phil Van Horn – WSLC

Janet Dodson - NSLP

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It’s the law!It’s the law!

• The neg reg process is mandated by law for Title IV programs, as well as for many of the key compliance and reporting sections of the law, including accreditation. For more information on negotiated rulemaking in general, visit www.ed.gov/HEOA

http://www.ed.gov/HEOA

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Neg Reg exceptionsNeg Reg exceptions

• While Neg Reg is mandated it may be eliminated when the Secretary decides:– it would be impractical; or– it would not be in the public’s best interest; or– it is deemed unnecessary

• Additionally, if changes are considered “self-implementing” the Secretary may decide to bypass Neg Reg

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What is Neg Reg?What is Neg Reg?

• A process used by many federal agencies to develop and revise regulations

• A group of participants representing various sectors of the financial aid community meet with ED representatives to reach consensus on the language of a proposed rule – typically ED tries to select members of the non-

federal team from sectors most impacted by the regulatory changes

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What is Neg Reg?What is Neg Reg?

• ED may use that language as a basis for its proposed rule, which will be published, along with a request for public comments, following the conclusion of the Neg Reg sessions

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Why Neg Reg?Why Neg Reg?

• Typical negotiated rulemaking sessions following major legislation identify large numbers of issues

• The Neg Reg process after the 1998 reauthorization identified more than 100 separate issues that were ultimately regulated

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Why Neg Reg?Why Neg Reg?

• More recent Neg Reg processes, following HERA and CCRAA have been more limited, although both the HERA and CCRAA processes involved multiple committees

• Neg Reg on HEOA is more likely to follow the 1998 model, with a large number of issues on the agenda

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What is happening now?What is happening now?

• During the last few weeks, ED held a series of four regional hearings to solicit issues to be considered in developing an agenda for Neg Reg

• Stay tuned!

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Committee membersCommittee members

• Committees typically involve 12-18 primary members representing the major actors in the affected industry

• Additionally, alternate negotiators are usually appointed as well from the same broad areas as the primary negotiators

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Committee membersCommittee members

• As an example, 26 total negotiators were selected for the 2007 student loan related negotiations, representing the major participants (lenders, servicers, guarantors) as well as institutions and related associations

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Neg Reg agendaNeg Reg agenda

• Agenda items traditionally are chosen on the premise that they can be resolved within the bounds of regulations– Neg Reg does not address items requiring

statutory change – typically, ED chose issues for the agenda that

are likely to be successfully negotiated — that is, that stand a good chance of reaching consensus

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The statutesThe statutes• The Higher Education Act of 1965, as

amended • Recent laws that have affected Title IV

programs include:– Bankruptcy Code– E-signature Law– Gramm-Leach Bliley– Service-member’s Civil Relief Act– Fair Credit Reporting Act

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Legislative processLegislative process

• Authorizing committees – request proposals – hold hearings – draft proposed

legislation – debate proposals – approve bill for

submission to respective house

• Full House and Senate – debate proposed law – pass their version of bill – appoint conference

committee member

• Conference committee – reconcile bills – votes on final language – refers final language to

houses

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Legislative processLegislative process

• Full House and Senate – debate proposed law – floor amendments – pass final legislation – enrolled bill – sent to President

• President signs into law

• Secretary implements

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Secretary of Education’s responsibilitiesSecretary of Education’s responsibilities

• Advise Congress – propose legislation – provide technical

assistance – assist with constituent

issues

• Regulates where needed

• Enforces law and regulations

• Communicates with interested parties and the public

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Areas that require Neg RegAreas that require Neg Reg• Code of Federal Regulations• Chapter 34 (34 CFR) • Part 86 - DRUG-FREE

SCHOOLS • Part 99 - FAMILY EDUC RIGHTS

AND PRIVACY (FERPA) • Part 600 - INSTITUTIONAL

ELIG. • Part 602 - ACCREDITING

AGENCIES • Part 603 - STATE AGENCIES • Part 668 - GENERAL

PROVISIONS • Part 673 - GEN

PROVISIONS

• Campus Based Programs • Part 674 - FEDERAL

PERKINS LOAN • Part 675 - FEDERAL WORK-

STUDY • Part 676 - FEDERAL SEOG • Part 682 - FFEL • Part 685 - FEDERAL DIRECT

LOAN • Part 690 - FEDERAL PELL

GRANT • Part 692 - LEAP/Special

LEAP (SSIG) • Part 693 - GEAR UP

(NEISPP)

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Important Neg Reg conceptsImportant Neg Reg concepts

• Goal: to develop Notices of Proposed Rulemaking (NPRM) that reflect a final consensus of the negotiating committee

• Consensus: there must be no dissent by any member for the committee to have reached consensus

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The processThe process• Secretary delegates responsibility to staff • Secretary holds meetings to consider

proposed topics • Secretary proposes topics • Meetings with interested parties to discuss

Neg Reg process • Solicit nominations for Neg Reg non-federal

members • Select non-federal members

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The processThe process• Committee approves

protocols

• Committee finalizes agenda topics

• ED submits thoughts and ideas

• Committee reacts

• Negotiations begin

• ED provides draft regulatory language

• Negotiations continue

• Negotiations continue • Negotiations continue • Consensus reached

– NPRM regulatory language published as agreed

• No consensus reached – Secretary publishes

without regard to negotiations

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Rulemaking stepsRulemaking steps

• ED writes preambles

• Internal review of NPRM package – Deputy Secretary – OMB – budget implications – OPE approval – SFA approval

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• Neg Reg committee reviews preamble

• ED may make changes to preamble

• Secretary’s approval

• NPRM published – submitted to the Federal Register – posted to IFAP – 30-90 day comment period ED

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• ED reviews comments • ED decides on changes • ED writes analysis of comments and

changes, if any • Internal approval (same as for NPRM) • Submits for publication in the Federal

Register - publish by November 1 • Final rule effective usually following July 1

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Organizational protocolsOrganizational protocols

• Mission statement

• Participation

• Committee members– principal spokesperson & alternate– non-member invitations– adding members– subcommittees

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Organizational protocolsOrganizational protocols• Decision making • Consensus

– “...there must be NO dissent by ANY member in order for the committee to be considered to have reached agreement.”

– “members should not block or withhold consensus unless they have serious reservations….”

– “absence will be equivalent to not dissenting”– “all consensus agreements… will be assumed to be

tentative… until members… agree to make them final agreements”

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• Agreement• Goal: to develop one or more NPRMs that reflect

a final consensus of the committee• The Department will not alter the consensus

based language of its NPRMs UNLESS it reopens the neg reg process or provides a written explanation to the committee members in advance of the publication of the NPRM. If there is a change, Committee members may comment positively or negatively.

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• Agreement• If the committee reaches consensus, ED will use the

consensus language in the NPRMs• Committee Members WILL REFRAIN from

commenting negatively on the consensus language, unless it has something new to contribute (not previously considered or new information)– Note: If NASFAA is a negotiator, and consensus is

achieved, NASFAA cannot comment

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No consensus?No consensus?

What if consensus is not achieved?

• ED is permitted to publish proposed regulations using language that they believe adequately addresses the issue

• Negotiators are permitted to comment positively or negatively

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• Committee meetings– clear and reliable record– distribution of materials at least seven days in

advance– caucus for consultation– agendas– all meetings, except caucuses, are public

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• Safeguards for members– any member may withdraw at any time– all members shall act in good faith– contact with the press is generally limited to

discussion of overall objectives and progress

• Meeting facilitation– facilitators serve at the discretion of committee

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Carved out sectionsCarved out sections

• The department can choose to “carve out” sections of the NPRMs, either taking sections out of discussion completely or moving them into a separate discussion

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How can you have input?How can you have input?

• Attend a regional ED meeting

• Volunteer to be a negotiator

• Provide input to your associations

• Respond to NPRMs when published

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Neg Reg experiencesNeg Reg experiences

• FFEL team member Phil Van Horn

• TEACH Grant team member Janet Dodson

Documents

Neg Reg – What is it and How Can You Participate? Phil Van Horn – WSLC Janet Dodson - NSLP