U.S. Department of Education Rulemaking Process

What: The U.S. Department of Education develops Federal Regulations to implement aspects of the Higher Education Act, which is Federal law.  The process to create the language for the regulations to address institutional participation in Title IV HEA programs is through a Negotiated Rulemaking Process ("Neg Reg").  

How: The rulemaking process is governed by the Administrative Procedure Act (APA) (5 U.S.C Chapter 5).  Strict adherence is required.  Failure to follow the APA requirements could cause a regulation to be challenged and possibly vacated by Federal courts for failing to follow APA process. Additionally, the HEA requires that the Department follow a unique process of Negotiated Rulemaking for public involvement in the development of Title IV regulations (20 U.S.C. 1098a).

• The process begins with Notice in the Federal Register announcing the intent to conduct negotiated rulemaking and identifying the areas that the Department intends to develop or amend regulations.
• From 12-15 negotiators are typically chosen by the Department from a call for nominations seeking key stakeholders affected by the issues to be addressed. At least one Department representative is also a member of the committee.
• The committee of negotiators typically meets for one week in three consecutive months to discuss the issues and ultimately votes on a regulatory package for those issues.
• The public may observe the meetings and have access to printed materials used by the negotiators.
• The committee votes with the goal of consensus.  Consensus means that there is no dissent by any member of the negotiated rulemaking committee.  
• Issues that do not reach consensus can then be written by the Department.

When: The strict regulatory calendar process includes the following:

• Consensus language or language written by the Department can be released as an NPRM (notice of proposed rulemaking) subject to a public comment period.
• Prior to the release of the NPRM, the proposed language must be reviewed by the Office of Information and Regulatory Affairs (OIRA) that is part of the Office of Management and Budget (OMB) which is an agency within the Executive Office of the President.
• The Department must review all public comments and prepare responses.
• Final regulations are then prepared and must be reviewed again by the OIRA before release as final regulations.
• Final regulations must be released by November 1 in order for the regulations to become effective the immediately following July 1.  Release of final regulations after November 1 delays the effective date for an additional year. (ex. Final regs released December 2016 created an effective date of July 1, 2018)
• Upon release of the final regulations, the Secretary may exercise the authority to designate regulations for early implementation at the discretion of the institution.

Note: This resource was created by the State Authorization Network (SAN) a division of WCET. Regulatory language and references are subject to change. The information should not be considered legal advice. Legal questions should be directed to legal counsel.