Transcript 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
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
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Neg 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?
• 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 nonfederal team from sectors most impacted by the
regulatory changes
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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?
• 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?
• 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?
• 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 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 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 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 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 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 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 responsibilities
• Advise Congress
– propose legislation
– provide technical
assistance
– assist with constituent
issues
• Enforces law and
regulations
• Communicates with
interested parties and
the public
• Regulates where
needed
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Areas 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 WORKSTUDY
• 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 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 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 nonfederal members
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• Select non-federal members
The 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 steps
• ED writes preambles
• Internal review of NPRM package
– Deputy Secretary
– OMB
– budget implications
– OPE approval
– SFA approval
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Rulemaking steps
•
•
•
•
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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Rulemaking steps
• 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 protocols
• Mission statement
• Participation
• Committee members
– principal spokesperson & alternate
– non-member invitations
– adding members
– subcommittees
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Organizational 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
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them final agreements”
Organizational protocols
• 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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Organizational protocols
• 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?
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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Organizational protocols
• 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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Organizational protocols
• 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 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?
•
•
•
•
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 experiences
• FFEL team member Phil Van Horn
• TEACH Grant team member Janet
Dodson
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