How to Respond to a Notice of Proposed Rulemaking

NASFAA strongly urges all financial aid administrators to review and respond to the Department of Education's Notices of Proposed Rulemaking (NPRMs). Responding to NPRMs provides the financial aid community with a unique and powerful opportunity to help shape financial aid regulations. In enacting the laws that govern the Title IV programs, Congress often leaves much of the detailed administration of the programs to the Department of Education. The Department accomplishes this through regulations -- which establish the how and when of financial aid administration.

Congress requires the Department of Education to seek public comments before publishing final regulations. Generally, the Department publishes a Notice of Proposed Rulemaking inviting the public to comment within a specified time period -- often 30 to 45 days. The Department is then required to analyze each written comment, summarize the comments, and respond to them either by changing the final regulation or justifying the reason for not making a change. The summaries of comments, together with the Department's responses, are published with the final regulation. In order to meet the Master Calendar established by Congress, which requires that final regulations must be published by the Nov. 1 before the award year in which the regulations become effective, NPRMs are often published no later than September.

Aid administrators are often hard pressed to make time to respond to NPRMs, especially if they feel that their comments won't have any effect. However, it is essential that aid administrators respond because it can have an enormous impact on the nature and scope of final regulations. For example, in August 1994, the Department proposed that schools be required to collect students' high school diplomas or transcripts as documentation that the student is a high school graduate. However, the Department was persuaded to drop this provision, based on comments from the community that the requirement would impose onerous and undue paperwork requirements. Although this occurred many years ago, the decision withstood the test of time and is still in effect today.

Tips for Responding

Address your response to the person specified in the NPRM. The Department will accept responses by U.S. mail, hand delivery, commercial delivery, or through the Federal eRulemaking Portal. Please send NASFAA a copy of your comments. They will help us develop our response.
For each section you are commenting on, cite the specific Section Number [e.g., Section 668.22(a)] if at all possible. For clarity, you might consider using the section number as a heading to introduce the accompanying text.
Be as specific as you can in your comments and, where possible, provide arguments for WHY you agree or disagree with a particular provision.
Try to offer your opinions constructively. If you disagree with a proposed regulation and have a suggestion for a less burdensome, or more effective alternative, don't hesitate to suggest it!
If you support a particular regulation, respond with a favorable comment. This helps to protect a proposed provision from undesirable changes.
Remember that the Department of Education can't change the law through the regulatory process. However, the Department's interpretation of the meaning of the statutory language and the manner in which legislated requirements are implemented is at the heart of the regulatory process.

When formulating your response, bear in mind that your comments can:

Request clarification of specific segments of the proposed regulatory language
Ask how a particular rule would be applied in a scenario you present
Express your support of a particular part of the proposed rule
Express your opposition to any particular part of the opposed rule
Support or challenge ED's interpretation of an aspect of the law
Offer alternative approaches for implementing any particular requirement of the law

The discussion of the issues provided in the preamble to the proposed regulatory language can give you insight into the intent of the proposed regulations. However, reading the proposed regulatory language itself and commenting on its clarity is important. The preamble constitutes sub-regulatory guidance and is not binding if it does not accurately reflect the regulatory language. When it issues final regulations, ED responds to every comment. Requesting clarification of an issue or procedure that is unclear to you in the NPRM often triggers helpful information in the preamble to the final regulation. If you can, try to apply a proposed procedure to see if there are any flaws in concept or execution.

The following questions may help you focus your responses to each issue:

Does the preamble clearly explain the statutory requirement?
Is the regulation that will implement the statutory requirement clearly explained in the preamble?
Is the proposed regulatory language itself clear and does it reflect the preamble discussion?
Are there unanswered questions that will inhibit your efforts to put the regulation into practice?
Does compliance with the proposed regulation raise issues or considerations not addressed in the preamble?
Are there better alternatives to implementing the statutory requirement?
Are you satisfied with the proposed regulation?

In addition to responding to the proposed rules themselves, you can also submit comments about the burden imposed by any information collection requirements in these regulations, in accordance with the Paperwork Reduction Act, to the Office of Information and Regulatory Affairs at the Office of Management and Budget.

In proposing new regulations, ED must, under the Regulatory Flexibility Act, attest to the cost burden on small entities, which are defined as for-profit or nonprofit institutions with total annual revenue below $5,000,000, or institutions controlled by governmental entities with populations below 50,000. ED nevertheless invites comments from small institutions as to whether they believe the proposed changes would have a significant economic impact on them and, if so, requests evidence to support that belief.

If you have any questions, please email Policy@nasfaa.org

Posted 07/30/09 to www.NASFAA.org. Redistribution to non-NASFAA institutions is prohibited. Please submit Web site questions or comments to Web@NASFAA.org.