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