The Rulemaking Process for the Higher Education Act’s Title IV Regulations

The Rulemaking Process for the Higher Education Act’s Title IV Regulations

The Rulemaking Process for the Higher Education Act's Title IV Regulations

June 11, 2025 (IG10080)

Summary

The Rulemaking Process

for the Higher Education Act's Title IV Regulations

Title IV of the Higher Education Act (HEA) authorizes an array of programs and provisions to assist students and their

families in accessing and financing a postsecondary education. These include the Pell Grant, Direct Loan student loan,

campus-based aid, and TRIO programs. HEA Section 492 generally requires the Department of Education (ED) to use a

negotiated rulemaking (neg reg) process to develop proposed regulations pertaining to HEA Title IV. In neg reg, an agency

convenes a committee of stakeholders with the goal of reaching a consensus outcome on the text of a proposed rule. ED's

HEA Title IV rulemaking process is guided by statutory provisions in the HEA, the Negotiated Rulemaking Act (NRA), and

the Administrative Procedure Act (APA), as well as ED practice.

What is the APA? The APA provides the major steps of the rulemaking

process, generally requiring agencies to publish a notice of proposed rulemaking

(NPRM), hold a public comment period, publish a final rule in the Federal Register,

and wait at least 30 days before a rule may take effect. The APA contains some

exceptions to these requirements, including the "good cause" exception

discussed below.

What is the NRA? The NRA of 1990 established a

procedural framework for agencies to follow when

conducting neg reg. Statutes like the HEA sometimes

provide additional steps for agencies to follow in neg reg.

If the HEA is silent on an aspect of the process, the NRA

would apply by default.

Steps in ED's Title IV Rulemaking Process

ED initiates a Title IV rulemaking.

ED conducts neg reg, unless it has "good cause"

under the APA.

Title IV Negotiated Rulemaking Process

ED publishes Notice of Intent to conduct neg reg in the Federal Register.

ED solicits public advice and recommendations on issues to be negotiated.

ED develops a list of issues for negotiation, publishes the list in the Federal Register,

and solicits nominations for negotiators.

ED is to provide a 30-calendar day period for the submission of comments

and applications for negotiators.

ED typically selects 12-15 negotiators; the NRA limits neg reg committees to 25

individuals. Negotiators are to have demonstrated expertise or experience in the

subjects under negotiation.

ED develops draft regulations for negotiation.

Neg reg committee convenes for negotiations. ED practice is to make committee

meetings open to the public. Committee may establish operational procedures;

members may suggest additional issues that may be added to the agenda.

Neg reg committee works to attain consensus on draft regulations. In recent

rulemakings, the neg reg committee typically negotiated for about three sessions

at roughly monthly intervals.

Is consensus reached?

Under the HEA, ED is to use the consensus

YES

NO

draft regulatory language in its NPRM unless

ED "provides a written explanation" Of why it

"has decided to depart from such agreements."

ED practice is to use the regulatory

language of its choosing in its NPRM,

though input received from neg reg

may be used in the development of

the NPRM.

ED drafts text of NPRM, including any consensus language, and

submits to the Office of Information and Regulatory Affairs (OIRA).

ED publishes NPRM in the Federal Register; public comment period

begins.

ED receives and reviews comments and considers changes to

proposed rule.

ED submits draft final rule to OIRA.

ED publishes final rule in the Federal Register.

What is "Good Cause"?

Under the APA, an agency can forego

notice and comment if undergoing

those procedures would be

"impracticable, unnecessary, or contrary

to the public interest," and the agency

may proceed directly to a final or interim

final rule. The HEA contains this same

exception for the neg reg process.

What is Consensus?

The NRA defines consensus as

"unanimous concurrence" unless the

neg reg committee agrees to another

definition. Historically, for HEA Title IV,

neg reg consensus has been defined

as "no dissent by any member of the

negotiating committee....

The absence or silence of a member..

is equivalent to not dissenting."

What is OIRA?

OIRA is an agency within the Office of

Management and Budget that reviews

regulations to ensure they are consistent

with the President's policy priorities.

OIRA also coordinates an inter-agency

review of regulations and reviews any

required economic analysis. OIRA review

is governed by Executive Order 1 2866.

When Do Title IV Final Rules

Go Into Effect?

HEA Section 482(c) generally requires

that Title IV final rules published after

November 1 Of a given year may not

become effective until July 1 of the

second award year thereafter. For

example, if a Title IV final rule were

published on December 1, 2025, it could

not go into effect until July 1, 2027. The

Secretary may designate a Tltle IV

regulatory provision for early

implementation by "an entity subject to

the provision.. .in the entity's discretion."

Source: 5 U.S.C. S 553, 5 U.S.C. S 561 et seq., 20 U.S.C. S 1098a, and U.S. Department of Education, "Frequently Asked Questions:

The Negotiated Rulemaking Process for Title IV Regulations," https://www.ed.gov/laws-and-policy/higher-education-laws-and-policy/higher-education-

policy/frequently-asked-questions-negotiated-rulemaking-process-title-iv-regulations, accessed April 1 7, 2025.

Information as of June 1 1, 2025. Prepared by Alexandra Hegji, Specialist in Social Policy; Maeve Carey, Specialist in Government

Organization and Management; and Brion Long, Visual Information Specialist.

—CRS