Legislation, Regulation and You! Justin – this is a process oriented session. The purpose to talk about how a bill becomes a law, and the pressure points, and how a regulation becomes a law, and the pressure points. MSFAA © 2017 NASFAA

Public Law Process I’m just a bill. Yes, I’m only a bill. And I’m sitting here on Capitol Hill. Well, it’s a long, long journey To the capital city. It’s a long, long wait While I’m sitting in committee, But I know I’ll be a law someday At least I hope and pray that I will, But today I am still just a bill. Justin: How long have you been in financial aid Know the difference statute and regulation Philosophy behind legislation and regulation A federal law begins as a bill that is introduced into either the U.S. House of Representatives or the U.S. Senate. A bill passed by one chamber may be taken up in that form and also passed by the other chamber intact. More often, it is amended by the other chamber and passed back to the originating chamber for acceptance, further amendment, or compromise.   Most often, two separate but parallel bills are introduced, one in each chamber. Once both are passed by their respective chambers, a conference committee consisting of members from both the House and Senate is convened to work out a single compromise bill. In theory, only items already present in one bill or the other can be considered; no new provisions may be added by the conference committee. The conference report describing the committee’s agreements is then voted on by both chambers as the revised bill.

The Relationship of Authorization and Appropriation Authorizing Legislation Carry expiration dates Congress must reauthorize prior to expiration Appropriation Legislation Funds the authorized programs Generally done through the annual budget/appropriations process Justin: The federal student aid programs were created as a result of laws enacted by Congress. Laws (also called statutes) that create programs are categorized as authorizing legislation. Authorized programs carry expiration dates to ensure that Congress reexamines the programs on a regular basis, generally every five or six years. Once a program has been created, it must be reauthorized prior to its expiration. During the reauthorization process, Congress may amend the program to respond to the needs of society, incorporate updated technologies, or resolve misunderstanding, misuse, or abuse.   Programs authorized by Congress are administered by the appropriate agency of the Executive Branch of government. Most of the federal student aid programs are administered by the U.S. Department of Education (ED), primarily by promulgating regulations that govern the actions of program participants. Thus, while Congress writes the law to give general direction, ED writes regulations to provide detailed procedural guidance—within statutory parameters—for the management of the federal student aid programs by schools and others. Schools may best achieve compliance with regulations by establishing a set of policies and procedures. Regulations have the “force of law.” They are not, in and of themselves, the law; ED cannot enact law, only Congress can. However, failure to comply with regulations can result in financial liabilities, fines against the school, limitations on the school’s Title IV program participation, or elimination of the school’s eligibility to participate in one or more of the Title IV programs. A complete and up-to-date policies and procedures manual helps ensure compliance. Required policies can be either statutory in nature (i.e., when the law specifically calls for a policy) or regulatory (i.e., when ED interprets the law as requiring certain actions). In most cases, policies specifically mandated by statutory language will be incorporated directly into regulation. Understanding how to read and interpret statutory and regulatory language is essential to the development of institutional policies and procedures.

Budget & Appropriations 101 What is supposed to happen… President releases budget in February House & Senate pass Budget Resolution in April Appropriations Committees draft bills Appropriations bills voted on and passed before Oct. 1 Justin

Budget & Appropriations 101 But what usually happens… Omnibus spending bill—combines all 12 spending bills into one Continuing resolution (CR) Justin

Public Law (Pub. L. or P.L.) Example: Veterans Educational Assistance Act of 2017 (Public Law No: 115-48) Translation = The 48th law to be enacted by the 115th Congress Each Congress covers a two year period Megan: Once a bill passes through the congressional process and is signed into law by the President, it is assigned a Public Law (Pub. L. or P.L.) number. The number is a two-part number that shows when a law was enacted. For example, P.L. 111-152 is the 152nd law to be enacted by the 111th Congress (each Congress covers a period of two years). Most of the federal student assistance legislation administered by the Department of Education (ED) is found in Title IV of the Higher Education Act (HEA). Originally enacted in 1965, the HEA has been amended numerous times by subsequent laws and reauthorizations. Adopts rules at the beginning of that two-year period (filibuster rule)

Public Law Numbering System Title: Upper-case Roman numerals Title IV Part: Upper-case letters Part A, which contains the grant programs Subpart: Arabic numerals, occurring fairly infrequently Subpart 1 of Part A authorizes the Federal Pell Grant Program Section: Usually numbered in three-digit Arabic numerals Section 455 of Part D establishes the terms and conditions of Direct Loans Megan: Sections: Sometimes when Congress amends an existing law by adding a new section, the section is numbered with a three-digit Arabic numeral plus the designation “A”, “B”, etc, to avoid renumbering all subsequent sections of a Part or Subpart. For example: Sections 459A and 459B were enacted in response to economic turbulence to grant temporary authority for the Department of Education to purchase loans made by banks and other lenders under the Federal Family Education Loan Program (FFELP) and to make Consolidation Loans incorporating federal loans from multiple sources to borrowers still in an in-school status.

Public Law Numbering System Subsection: Lower-case letters enclosed in parentheses (a), (b), (c), etc. Paragraph: Arabic numerals enclosed in parentheses (1), (2), (3), etc. Subparagraph: Upper-case enclosed in parentheses (A), (B), (C), etc. Division: Lower-case Roman numerals enclosed in parentheses (i), (ii), (iii), etc. Clause: Upper-case Roman numerals enclosed in parentheses (I), (II), (III), etc. Megan

Subchapter I—General Provisions > Part A—Definitions § 1002. Definition of institution of higher education for purposes of student assistance programs [HEA § 102]   (a) Definition of institution of higher education for purposes of student assistance programs (1) Inclusion of additional institutions Subject to paragraphs (2) through (4) of this subsection, the term “institution of higher education” for purposes of subchapter IV of this chapter and part C of subchapter I of chapter 34 of title 42 includes, in addition to the institutions covered by the definition in section 1001 of this title— (A) a proprietary institution of higher education (as defined in subsection (b) of this section); (B) a postsecondary vocational institution (as defined in subsection (c) of this section); and (C) only for the purposes of part D of subchapter IV of this chapter, an institution outside the United States…1087b (d) of this title. (2) Institutions outside the United States

Numbering Structure for the U.S. Code Title 20—Education Chapter 28—Higher Education Resources and Student Assistance Subchapter IV—Student Assistance Part A—Grants to Students in Attendance at Institutions of Higher Education Subpart 1—Section numbering in the U.S. Code also differs from numbering in a public law. For example, Pell Grants are found under sec. 401 in the Higher Education Act, but at sec. 1070a in the U.S. Code. Otherwise, codified subsections, paragraphs, and so on follow the public law scheme. Megan: Public laws are collated and codified into a unified body of permanent statutes know as the U.S. Code. The numbering of the U.S. Code differs from that of the public laws. The statutes are organized into titles, chapters, subchapters, parts, subparts, divisions and sections. Most of the program authorized under title IV of the Higher Education Act, for example, are codified under Title 20, Chapter 28 of the U.S. Code. (An exception is Federal Work-Study, which is codified under Title 42, chapter 34.)

U.S. Code M

Amendments to Existing Legislation FROM Consolidated Appropriations Act, 2012 SEC. 309(a). FEDERAL PELL GRANT ELIGIBILITY. … (2) DURATION OF AWARD PERIOD.—Section 401(c)(5) of the HEA (20 U.S.C. 1070a(c)(5)) is amended— (A) by striking ‘‘18’’ each place it appears and inserting ‘‘12’’; and (B) by striking the last sentence. Megan

Amendments to Existing Legislation HEA CHANGE: (c) Period of eligibility for grants … (5) The period during which a student may receive Federal Pell Grants shall not exceed 18 12 semesters, or the equivalent of 18 12 semesters, as determined by the Secretary by regulation. Such regulations shall provide, with respect to a student who received a Federal Pell Grant for a term but was enrolled at a fraction of full-time, that only that same fraction of such semester or equivalent shall count towards such duration limits. The provisions of this paragraph shall apply only to a student who receives a Federal Pell Grant for the first time on or after July 1, 2008.  Megan

The Relationship of Law to Regulations Regulations have the force of law, but are not the law This difference is important in advocacy: is it a regulatory issue or statutory issue? Failure to comply with regulations can result in financial liabilities, fines, and limitations in Title IV participation Justin: Regulations have the “force of law.” They are not, in and of themselves, the law; ED cannot enact law, only Congress can. However, failure to comply with regulations can result in financial liabilities, fines against the school, limitations on the school’s Title IV program participation, or elimination of the school’s eligibility to participate in one or more of the Title IV programs. A complete and up-to-date policies and procedures manual helps ensure compliance.   Required policies can be either statutory in nature (i.e., when the law specifically calls for a policy) or regulatory (i.e., when ED interprets the law as requiring certain actions). In most cases, policies specifically mandated by statutory language will be incorporated directly into regulation. Understanding how to read and interpret statutory and regulatory language is essential to the development of institutional policies and procedures.

Regulatory Process at a Glance Higher Education Act of 1965, as amended Law = Statute ED identifies need for regulation Statutory change Need for clarification Misuse of program, etc. Negotiated Rulemaking (required with limited exceptions, for all of Title IV other than Part F, Need Analysis) ED convenes regional meetings ED identifies issues Negotiated Rulemaking Sessions ED negotiator(s) Aid community negotiators Other stakeholders (e.g., States) No consensus reached Consensus reached ED drafts Proposed Rules and publishes them as a Notice of Proposed Rulemaking (NPRM) with explanatory introduction ED publishes Proposed Rules as agreed to by consensus as a Notice of Proposed Rulemaking (NPRM) with explanatory introduction Public Comment period ED issues Interim Final Regulations with invitation to comment (may also occur outside of negotiated rulemaking for limited reasons) Public Comment ED issues Final Regulations with responses to public comments

Negotiated Rulemaking: Proposed Regulations and Final Rules Negotiated rulemaking consists of: ED public hearing to identify or further refine issues that require regulation Federal Register notice announcing intent to conduct negotiations, inviting nominations for negotiators Negotiations Justin: The law requires most federal student aid regulations to undergo a developmental process called negotiated rulemaking. Under this process, ED convenes regional meetings to obtain public involvement in identifying or further refining issues that require regulation. ED then publishes in the Federal Register a notice of intent to conduct negotiations, inviting nominations for negotiators to participate in developing proposed regulations on listed topics. When selecting negotiators, ED includes representatives of affected groups involved in the Title IV programs, such as students, legal assistance organizations that represent students, institutions of higher education and the various associations to which they belong, loan servicers and collection agencies, other third party servicers, state governments, and so on.   The goal of negotiated rulemaking is for all participants seated at the negotiating table to achieve consensus on proposed rule language. Consensus in this context means the absence of any dissent. If consensus is attained on all of the issues undertaken, ED must abide by the agreements reached, barring any unforeseen legal impediments to an agreement. If the negotiating committee fails to arrive at a consensus on the entire package of issues, ED is free to construct proposed rule language as it sees fit.

Notice of Proposed Rulemaking (NPRM) Result of negotiations, published in the Federal Register Background information Proposed changes to current regulations (or proposed new regulations) Closing date for receiving comments from the public, and the procedures by which comments are submitted Comment period between 30 and 120 days Justin: ED then publishes the results of the negotiations as a notice of proposed rulemaking (NPRM) in the Federal Register. An NPRM includes background information, proposed changes to current regulations (or proposed new regulations), the closing date for receiving comments from the public, and the procedures by which comments are submitted. The comment period is usually between 30 and 120 days, but is most frequently 45 days. ED reviews the comments from the financial aid community and other members of the public, incorporates any needed changes, and publishes final regulations.

Final Rules ED reviews the comments from the financial aid community and other members of the public, incorporates any needed changes, and publishes final regulations in the Federal Register Preamble Summarizes the comments ED received on the NPRM, and ED’s responses to them Any changes that resulted from the comments are noted Final regulations become part of the body of governing precepts known as the Code of Federal Regulations (CFR) Final regulations are published in the Federal Register as final rules. A preamble to the final rule summarizes the comments ED received on the NPRM, and ED’s responses to them. Any changes that resulted from the comments are noted. If ED did not make changes to the final rules as recommended in the comments, ED will explain its reasons. Final regulations become part of the body of governing precepts known as the Code of Federal Regulations (CFR).   In limited cases, regulations are not preceded by an NPRM, but are published directly as a final rule. This may occur when the changes are technical corrections to previously published final rules, or when the Secretary of Education finds that solicitation of pu Occasionally, ED issues interim final regulations when a statutory change has an effective date that does not allow sufficient time for the full developmental process of negotiations and an NPRM. ED might also resort to interim rules when proposed rules have been controversial or have generated a large number of comments with differing viewpoints or suggested alternatives not considered while developing the proposed regulations. Interim final regulations are final rules. They become effective on the date(s) specified and, like any other final rules, they remain in effect until superseded by new final rules or statutory changes. The “interim final” designation merely demonstrates ED’s intent to invite and consider further comment on certain issues, or reconvene the negotiated rulemaking process later. blic comment would be impracticable and contrary to the public interest.

Sections of a Final Rule SUMMARY: identifies the purpose of the regulation and the broad topics covered by the regulation Analysis of Comments and Changes: ED response to comments it received about the NPRM (Comment, Discussion, Changes) Regulatory language itself: includes roadmaps and descriptors on where and how to change existing regulations The regulatory language itself (proposed or final) follows the preamble. Normally, the Federal Register does not contain the entire text of an existing regulation. Instead, only a description of the change or the language that is being changed will be printed, with the appropriate section references to indicate where the change is being made. Ellipses indicate where there is intervening text that is not being changed. To make sure that you understand the effect of these changes, you must compare the changes with the complete text of the regulation that is being amended, as found in the current Code of Federal Regulations (CFR).

Numbering Structure for the Regulations Code of Federal Regulations: a uniform system for numbering federal regulations Titles: The CFR is divided into 50 titles according to subject matter Federal regulations relating to education are designated as “Title 34 of the Code of Federal Regulations, or “34 CFR” Part: Each title is further divided into parts For example, the subject of Part 668 addresses Student Assistance General Provisions regulations The regulations also have a distinct structure and numbering system, which differs somewhat from that used in the law.   Code of Federal Regulations: The Federal Register provides a uniform system for publishing federal documents and numbering federal regulations. The basic component of this system is the Code of Federal Regulations, or CFR. Titles: The CFR is divided into 50 titles according to subject matter. Federal regulations relating to education are designated as “Title 34 of the Code of Federal Regulations, or “34 CFR.” Part: Each title is further divided into parts, as illustrated in the chart below. For example, the subject of Part 668 addresses Student Assistance General Provisions regulations. Section: Each part of the regulations is divided into sections. For example, sec. 668.22 governs the treatment of Title IV, HEA program funds when a student withdraws from an institution during a payment period. The section is titled “Treatment of Title IV funds when a student withdraws.” When referring to this section, it may be cited as Section 668.22, sec. 668.22, §668.22, or 34 CFR 668.22. Subsection: Each section is followed by subsections designated by a lower case letter. Subsections may be further divided into clauses and phrases with the following sequential lettering, Arabic numbering, and Roman numeral system: (a), (1), (i), (A), (1). For example, the first citation shown below is referred to as §668.4(a). The citations in the second and third boxes are §668.4(b) and §668.4(b)(1) respectively. The fifth box is 668.4(b)(2)(i), where (i) is a Roman numeral, and so on.

Numbering Structure for the Regulations Section: Each part is divided into sections For example, sec. 668.22 governs the treatment of Title IV, HEA program funds when a student withdraws from an institution during a payment period Subsection: Each section is followed by subsections designated by a lower case letter. Subsections may be further divided into clauses and phrases with the following sequential lettering, Arabic numbering, and Roman numeral system: (a), (1), (i), (A), (1) NASFAA Compiled Regulations (www.nasfaa.org) Section: Each part of the regulations is divided into sections. For example, sec. 668.22 governs the treatment of Title IV, HEA program funds when a student withdraws from an institution during a payment period. The section is titled “Treatment of Title IV funds when a student withdraws.” When referring to this section, it may be cited as Section 668.22, sec. 668.22, §668.22, or 34 CFR 668.22.   Subsection: Each section is followed by subsections designated by a lower case letter. Subsections may be further divided into clauses and phrases with the following sequential lettering, Arabic numbering, and Roman numeral system: (a), (1), (i), (A), (1). For example, the first citation shown below is referred to as §668.4(a). The citations in the second and third boxes are §668.4(b) and §668.4(b)(1) respectively. The fifth box is 668.4(b)(2)(i), where (i) is a Roman numeral, and so on.