Negotiated rulemaking, or “neg reg,” is a process some federal agencies follow to obtain stakeholder feedback on proposed regulations. The Department of Education (ED) and, by extension, the Office of Federal Student Aid (FSA) are required by Congress, under Section 492 (USC §1098a) of the Higher Education Act (HEA), to conduct negotiated rulemaking in developing new regulations or amending existing ones.

ED may promulgate rules for several reasons. For instance, a change to the statute governing the federal student aid programs generally necessitates the drafting of implementing regulations. These statutory changes may arise from a reauthorization of HEA or from piecemeal changes to limited sections of HEA. Political priorities may also give rise to new rulemaking sessions. Finally, court decisions may also require ED to change its regulations, such as when the courts determine that a regulation is not legal. 

Unified Agenda

Twice each year (fall and spring), the Executive Office of the President publishes its plans for negotiated rulemaking via a Unified Agenda of Regulatory and Deregulatory Actions. The unified agenda is published on the Office of Information and Regulatory Affairs (OIRA), an office within the Office of Management and Budget (OMB), website. The site contains regulatory priorities for each administrative agency, along with the current status of each priority and relevant dates for the various steps of the regulatory process, detailed below.

Not every neg reg session is included in the unified agenda, since this is a static document, and other circumstances, such as those described above, may cause ED to have to conduct neg reg. 

Notice of Intent to Establish Rulemaking Committee

Regardless of the reason behind ED’s decision to draft new regulations, the Notice of Intent to Establish Rulemaking Committee kicks off the rulemaking process with an announcement of public hearings on a topic ED wishes to examine via the rulemaking process. Published in the Federal Register (FR), this notice provides information on the dates public hearings will be held and how individuals can register to make comments.

The next step in the process involves soliciting nominations for individuals to represent specific constituencies on the negotiating committee. This notice includes the constituencies ED has determined are impacted by the topic(s) to be discussed by the committee as well as the dates committee meetings will be held. If ED intends to include any subcommittees in the rulemaking sessions, it will also announce those and solicit representatives here.

ED selects both a primary and an alternate negotiator for each constituency on the committee and/or subcommitee(s) from the nomination pool and notifies all nominees as to whether they have been selected for representation at the negotiating table, on a subcommittee, or for both.

Negotiations

Negotiations for the main committee are held in accordance with the schedule announced in the Federal Register. If there is a subcommittee, they typically meet for fewer days, but during the same time frame as the main committee meeting schedule. 

ED distributes issue papers to committee members and the public about one week before each week’s negotiations are held. Issue papers include the proposed changes to regulatory language on the topics to be negotiated, as well as ED’s rationale behind those proposed changes.

Committee members are also permitted to submit their own proposals, which are then shared with the committee for consideration. 

An ED representative serves as the federal negotiator at the negotiating table. A separate facilitator keeps conversations on topic and on schedule, and ensures protocols are followed. 

Only one representative from each constituency is permitted to be present at the negotiating table at any time. The primary and the alternate negotiator determine their own process for who will represent their constituency at which points during negotiations. Each constituency has just one vote. Subcommittee members do not have voting rights. They discuss their topic area(s) as a subcommittee and present their recommendations to the main committee, which then votes on the topic(s) covered by the subcommittee. 

The first session of negotiated rulemaking begins with committee member introductions. Committee protocols are established, and nominations for individuals to fill vacant constituency positions, as well as for new constituencies not included in the original solicitation, are considered and voted on.

Once protocols are approved and the committee’s makeup has been finalized, discussions on the relevant topics begin. 

Facilitators take frequent “temperature checks” to gather insight on where committee members stand on various topics. The purpose of these check-ins is to determine which areas need more discussion to ultimately reach consensus. Each day’s negotiations typically wrap up with time dedicated to public comments. 

While negotiations are held in public and livestreamed for remote viewing, negotiators are permitted to request a caucus with select members of the committee, where they meet in private to discuss a specific topic of interest to the parties involved. Negotiations are paused during caucuses and resume once the caucus adjourns. 

Early days or weeks of negotiations are typically devoted to discussing the issues broadly. ED sometimes shares draft regulatory language before the first week for committee members to discuss, while at other times the discussions at this point of negotiations are more general in nature. 

Later days or weeks are focused more on regulatory language and making changes to ensure clarity, reflect the wishes of negotiators, and increase chances of reaching consensus. 

The final day or days of negotiations are devoted primarily to achieving consensus. Committee members work to hone language to bring those members still opposed to certain provisions of proposed rules to a point where they can accept it. If a subcommittee was established, they typically report to the main committee during the final days of neg reg. The process concludes with a final consensus check.

ED may request consensus checks on the entire package of proposed regulations being discussed by the committee, or take individual consensus checks for each topic discussed. Consensus does not necessarily mean that every committee member is satisfied with the proposed language but, rather, that those in disagreement are willing to accept that language in the interest of the greater good.

When consensus is reached, ED is not permitted to make substantive changes to that language in its proposed rule. If any one or more individuals withhold consensus, FSA is free to propose any regulatory language it sees fit, although they typically incorporate negotiator feedback received through the neg reg process in the proposed language. 

Proposed Rules

Proposed rules are typically issued as soon as a few months to as long as a year or more following the conclusion of negotiations. Factors contributing to the timing of the release of proposed rules include ED priorities and HEA master calendar requirements. Proposed rules are typically issued with a 30- or 60-day public comment window. The Federal Register notice soliciting public comments includes a background section that details the history of the topic being addressed and FSA’s rationale for revisiting the current regulations. It also summarizes the actions taken to date, including details about the negotiating committee and whether consensus was reached. The notice also summarizes each proposed regulatory change in plain language along with ED’s rationale for the proposed change and, finally, provides the actual proposed revisions to the regulatory text.

Regulatory Review

Federal agencies are required to submit their proposed significant rules to the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) for review before they become final. This step can take several weeks to months to complete.

Final Rules

The final rule is also published in the Federal Register, in a similar format to the proposed rule. ED is required to review and respond to all public comments from the proposed rule stage, and include those responses in the final rule. The introduction, summaries, and responses to public comments are typically referred to as the preamble to the rule. ED often uses the preamble to clarify its intent, so this section of the final rules provides vital context for the regulatory language itself. 

Effective Date

The final rule also specifies the effective date(s) of new regulations. New regulations published on or before November 1 typically become effective on July 1 of the following year, per master calendar requirements in HEA section 482(c). So, for instance, a rule published by November 1, 2025 would become effective July 1, 2026, but if it were published on November 2, 2025 it would not become effective until July 1, 2027.

ED is permitted to designate certain rules or parts of rules for early implementation under some circumstances. Early implementation is typically used when the new rule does not require any preparation on the part of affected stakeholders, or when the only preparation required falls on ED itself. ED will sometimes also offer early implementation as an option for schools that wish to take advantage of a new rule earlier than the official effective date.  

After Final Rules Are Published

Institutions are responsible for ensuring compliance with new rules by their effective date and should begin making preparations as soon as final rules are published.

Some rules are considered self-implementing, meaning the regulatory language is clear enough that no implementing guidance is necessary. In most cases, regulatory changes require more explanation from ED, which is provided in the form of guidance (Dear Colleague Letters or Electronic Announcements) or technical guides closer to the effective date. ED may also provide training for new regulations in forums like the FSA Training Conference or in webinars.

Participating in the Negotiated Rulemaking Process

There are many opportunities to participate in the negotiated rulemaking process. Individuals can self-nominate or request a nomination from an organization like NASFAA to represent a constituency on the rulemaking committee as a negotiator. 

Negotiations are open to the public so anyone can attend these events live, and they are also livestreamed. ED also publishes all issue papers, negotiator submissions, session recordings, and session transcripts on its negotiated rulemaking website for the public to access. 

Once proposed rules are issued, individuals and organizations can submit their own comments or provide feedback to organizations like NASFAA to include in their comments. NASFAA typically publishes a draft of its comments one week before the comment due date. This provides members the opportunity to ensure their concerns are included in NASFAA’s comments, and also provides members with a template they can use to inform their own comments. NASFAA has also created a resource on how to engage in the public comment process. 

Individuals and organizations can also schedule a regulatory review meeting with OIRA. These meetings are colloquially referred to as "12866 meetings," named after Executive Order 12866, which addresses regulatory planning and review. These meetings are intended as a supplement to, not a replacement for, public comment. 

NASFAA has a negotiated rulemaking page where members can learn more about the neg reg process and see NASFAA’s coverage of ongoing and past neg reg sessions.