U.S. Code » Title 20 » Chapter CHAPTER 28— HIGHER EDUCATION RESOURCES AND STUDENT ASSISTANCE › Subchapter SUBCHAPTER IV— STUDENT ASSISTANCE › Part Part G— General Provisions Relating to Student Assistance Programs

20 U.S.C. § 1098a

Regional meetings and negotiated rulemaking

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(a) Meetings(1) In general

The Secretary shall obtain public involvement in the development of proposed regulations for this subchapter. The Secretary shall obtain the advice of and recommendations from individuals and representatives of the groups involved in student financial assistance programs under this subchapter, such as students, legal assistance organizations that represent students, institutions of higher education, State student grant agencies, guaranty agencies, lenders, secondary markets, loan servicers, guaranty agency servicers, and collection agencies.

(2) Issues

The Secretary shall provide for a comprehensive discussion and exchange of information concerning the implementation of this subchapter through such mechanisms as regional meetings and electronic exchanges of information. The Secretary shall take into account the information received through such mechanisms in the development of proposed regulations and shall publish a summary of such information in the Federal Register together with such proposed regulations.

(b) Draft regulations(1) In general

After obtaining the advice and recommendations described in subsection (a)(1) and before publishing proposed regulations in the Federal Register, the Secretary shall prepare draft regulations implementing this subchapter and shall submit such regulations to a negotiated rulemaking process. Participants in the negotiations process shall be chosen by the Secretary from individuals nominated by groups described in subsection (a)(1), and shall include both representatives of such groups from Washington, D.C., and industry participants. The Secretary shall select individuals with demonstrated expertise or experience in the relevant subjects under negotiation, reflecting the diversity in the industry, representing both large and small participants, as well as individuals serving local areas and national markets. The negotiation process shall be conducted in a timely manner in order that the final regulations may be issued by the Secretary within the 360-day period described in section 1232(e) of this title.

(2) Expansion of negotiated rulemaking

All regulations pertaining to this subchapter that are promulgated after October 7, 1998, shall be subject to a negotiated rulemaking (including the selection of the issues to be negotiated), unless the Secretary determines that applying such a requirement with respect to given regulations is impracticable, unnecessary, or contrary to the public interest (within the meaning of section 553(b)(3)(B) of title 5), and publishes the basis for such determination in the Federal Register at the same time as the proposed regulations in question are first published. All published proposed regulations shall conform to agreements resulting from such negotiated rulemaking unless the Secretary reopens the negotiated rulemaking process or provides a written explanation to the participants in that process why the Secretary has decided to depart from such agreements. Such negotiated rulemaking shall be conducted in accordance with the provisions of paragraph (1), and the Secretary shall ensure that a clear and reliable record of agreements reached during the negotiations process is maintained.

(c) Applicability of chapter 10 of title 5

Chapter 10 of title 5 shall not apply to activities carried out under this section.

(d) Authorization of appropriations

There are authorized to be appropriated in any fiscal year or made available from funds appropriated to carry out this part in any fiscal year such sums as may be necessary to carry out the provisions of this section, except that if no funds are appropriated pursuant to this subsection, the Secretary shall make funds available to carry out this section from amounts appropriated for the operations and expenses of the Department of Education.

(Pub. L. 89–329, title IV, § 492, as added Pub. L. 102–325, title IV, § 497, July 23, 1992, 106 Stat. 633; amended Pub. L. 105–244, title IV, § 490D, Oct. 7, 1998, 112 Stat. 1755; Pub. L. 110–315, title IV, § 494D, Aug. 14, 2008, 122 Stat. 3324; Pub. L. 111–39, title IV, § 407(b)(12), July 1, 2009, 123 Stat. 1953; Pub. L. 117–286, § 4(a)(148), Dec. 27, 2022, 136 Stat. 4322.)Editorial NotesAmendments

2022—Subsec. (c). Pub. L. 117–286 substituted “chapter 10 of title 5” for “Federal Advisory Committee Act” in heading and “Chapter 10 of title 5” for “The Federal Advisory Committee Act” in text.

2009—Subsec. (a)(1). Pub. L. 111–39, § 407(b)(12)(A), substituted “regulations for this subchapter. The” for “regulations for parts B, G, and H of this subchapter. The”.

Subsec. (a)(2). Pub. L. 111–39, § 407(b)(12)(B), substituted “The Secretary shall provide” for text from beginning of par. (2) through “provide”, resulting in text identical to that after execution of the amendment by Pub. L. 105–244, § 490D(a)(2)(A). See 1998 Amendment note below.

2008—Subsec. (a)(1). Pub. L. 110–315, § 494D(a)(1), inserted “State student grant agencies,” after “institutions of higher education,”.

Subsec. (a)(2). Pub. L. 110–315, § 494D(a)(2), struck out “, as amended by the Higher Education Amendments of 1998” before “through such mechanisms”.

Subsec. (b)(1). Pub. L. 110–315, § 494D(b), struck out “as amended by the Higher Education Amendments of 1998” before “and shall submit”, substituted “The Secretary” for “To the extent possible, the Secretary”, and inserted “with demonstrated expertise or experience in the relevant subjects under negotiation,” after “select individuals”.

1998—Subsec. (a)(1). Pub. L. 105–244, § 490D(a)(1)(C), substituted “The Secretary shall obtain the advice of and recommendations from” for “Such meetings shall include”.

Pub. L. 105–244, § 490D(a)(1)(B), which directed the substitution of “this subchapter;” for “parts B, G, and H of this subchapter,”, could not be executed because “parts B, G, and H of this subchapter,” does not appear in text.

Pub. L. 105–244, § 490D(a)(1)(A), struck out “convene regional meetings to” before “obtain public involvement”.

Subsec. (a)(2). Pub. L. 105–244, § 490D(a)(2)(B)–(D), substituted “this subchapter” for “parts B, G, and H”, “1998 through such mechanisms as regional meetings and electronic exchanges of information” for “1992”, and “through such mechanisms in” for “at such meetings in”.

Pub. L. 105–244, § 490D(a)(2)(A), which directed substitution of “The” for “During such meetings the”, was executed by making the substitution for “During such meetings, the” before “Secretary shall provide”, to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 105–244, § 490D(b), designated existing provisions as par. (1), inserted par. (1) heading, substituted “obtaining the advice and recommendations described in subsection (a)(1)” for “holding regional meetings”, “this subchapter” for “parts B, G, and H of this subchapter”, “1998” for “1992”, “360-day” for “240-day”, and “section 1232(e)” for “section 1232(g)”, struck out “The Secretary shall follow the guidance provided in sections 305.82–4 and 305.85–5 of chapter 1, Code of Federal Regulations, and any successor recommendation, regulation, or law.” after “rulemaking process.” and “participating in the regional meetings” after “nominated by groups”, and added par. (2).

Statutory Notes and Related SubsidiariesEffective Date of 2009 Amendment

Amendment by Pub. L. 111–39 effective as if enacted on the date of enactment of Pub. L. 110–315 (Aug. 14, 2008), see section 3 of Pub. L. 111–39, set out as a note under section 1001 of this title.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–244 effective Oct. 1, 1998, except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as a note under section 1001 of this title.

Inapplicability of Master Calendar and Negotiated Rulemaking Requirements

This section inapplicable to amendment made by section 100302(a) of Pub. L. 112–141 or to any regulations promulgated under such amendment, see section 100302(b) of Pub. L. 112–141, set out as a note under section 1089 of this title.

This section inapplicable to amendments made by section 309 of Pub. L. 112–74 or to any regulations promulgated under such amendments, see section 309(h) of Pub. L. 112–74, set out as a note under section 1089 of this title.

This section inapplicable to amendments made by title V of Pub. L. 112–25 or to any regulations promulgated under such amendments, see section 504 of Pub. L. 112–25, set out as a note under section 1089 of this title.

This section inapplicable to amendments made by section 1860(a)(2) of Pub. L. 112–10 or to any regulations promulgated under such amendments, see section 1860(c) of Pub. L. 112–10, set out as a note under section 1089 of this title.

This section inapplicable to amendments made by title IV of Pub. L. 111–39 or to any regulations promulgated under such amendments, see section 409 of Pub. L. 111–39, set out as a note under section 1089 of this title.

This section inapplicable to amendments made by section 402(a) of Pub. L. 110–315 or to any regulations promulgated under such amendments, see section 402(b) of Pub. L. 110–315, set out as a note under section 1089 of this title.

This section inapplicable to amendments made by Pub. L. 110–227 or to any regulations promulgated under such amendments, see section 11 of Pub. L. 110–227, set out as a note under section 1089 of this title.

Notes of Decisions
Cited in 18 cases (1 in the last 5 years), 1993–2021 · leading case: Bauer v. Devos, 325 F. Supp. 3d 74 (D.C. Cir. 2018).
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Bauer v. Devos, 325 F. Supp. 3d 74 (D.C. Cir. 2018). · cites it 8× “" 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Student Loan Servicing All. v. Dist. of Columbia, 351 F. Supp. 3d 26 (D.C. Cir. 2018). · cites it 2× “See 20 U.S.C. § 1098a (outlining procedural requirements for rulemaking).”
Nat'l Educ. Ass'n v. Devos, 379 F. Supp. 3d 1001 (N.D. Cal. 2019). · cites it 15× “(citing 20 U.S.C. §§ 1098a(a)(1), 1221e-3 ). This authority to promulgate regulations extends to regulations defining what is "legally authorized" for purposes of the HEA.”
Salazar v. King, 822 F.3d 61 (2d Cir. 2016). “See 20 U.S.C. §§ 1098a, 1070(b). These regulations serve as additional guidance to a court reviewing whether the agency action was arbitrary and capricious.”
Williams v. Nat'l Sch. of Health Tech., Inc., 836 F. Supp. 273 (E.D. Pa. 1993). · cites it 2× “20 U.S.C. § 1098a. At oral argument, counsel for the Secretary assured the court that final regulations are to be issued by February 11, 1994.”
Bauer v. Devos, 332 F. Supp. 3d 181 (D.C. Cir. 2018). “In particular, the Court held that the Department's decision to dispense with the negotiated rulemaking procedures that generally apply in Title IV rulemakings, see 20 U.S.C. § 1098a(a), was not supported by a reasoned invocation of the "good cause" exception, see Bauer , 325 F.”
Ass'n of Private Sector Colleges & Universities v. Duncan, 870 F. Supp. 2d 133 (D.D.C. 2012). “” 20 U.S.C. § 1098a(a)(l), (b)(1). In 2009, the Department began this process by announcing its intent “to develop proposed regulations to maintain or improve program integrity in the Title TV, HEA programs, relating to topics such as .”
California Cosmetology Coalition Am. Ass'n of Cosmetology Schs. v. Richard W. Riley, Sec'y of Educ., 110 F.3d 1454 (9th Cir. 1997). “See 20 U.S.C. § 1098a(b). The Secretary believes the term “unearned” in § 1091b(a) requires consideration of the total charges assessed to the student rather than merely what payment the school had already received by the time the student withdraws.”
Coalition of New York State Career Schs., Inc. v. Richard W. Riley, Sec'y of Educ., in His Off. Capacity, 129 F.3d 276 (2d Cir. 1997). “20 U.S.C. § 1098a(b). The 1992 statutory amendments were debated, conferenced, and enacted after the Secretary proposed regulations requiring institutions to bear the risk of student nonpayment in cases of early withdrawal.”
USA Grp. Loan Servs., Inc. v. Riley, 82 F.3d 708 (7th Cir. 1996). “” 20 U.S.C. § 1098a(b). A “successor law” to the Administrative Conference’s recommendations had in fact been enacted in 1990.”
Bauer v. Devos (D.D.C. 2018). · cites it 7× “” 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Bauer v. Devos (D.D.C. 2018). · cites it 7× “” 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Show all 18 citing cases →
— 20 U.S.C. § 1098a(a) — 3 cases
Bauer v. Devos, 332 F. Supp. 3d 181 (D.C. Cir. 2018). “In particular, the Court held that the Department's decision to dispense with the negotiated rulemaking procedures that generally apply in Title IV rulemakings, see 20 U.S.C. § 1098a(a), was not supported by a reasoned invocation of the "good cause" exception, see Bauer , 325 F.”
Bauer v. Devos (D.D.C. 2018).
Bauer v. Devos (D.D.C. 2018).
— 20 U.S.C. § 1098a(a)(1) — 6 cases
Bauer v. Devos, 325 F. Supp. 3d 74 (D.C. Cir. 2018). “" 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Nat'l Educ. Ass'n v. Devos, 379 F. Supp. 3d 1001 (N.D. Cal. 2019). “(citing 20 U.S.C. §§ 1098a(a)(1), 1221e-3 ). This authority to promulgate regulations extends to regulations defining what is "legally authorized" for purposes of the HEA.”
New York Legal Assistance Grp. v. Cardona (S.D.N.Y. 2021).
Bauer v. Devos (D.D.C. 2018). “” 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Bauer v. Devos (D.D.C. 2018). “” 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
— 20 U.S.C. § 1098a(a)(l) — 1 case
Ass'n of Private Sector Colleges & Universities v. Duncan, 870 F. Supp. 2d 133 (D.D.C. 2012). “” 20 U.S.C. § 1098a(a)(l), (b)(1). In 2009, the Department began this process by announcing its intent “to develop proposed regulations to maintain or improve program integrity in the Title TV, HEA programs, relating to topics such as .”
— 20 U.S.C. § 1098a(b) — 4 cases
Williams v. Nat'l Sch. of Health Tech., Inc., 836 F. Supp. 273 (E.D. Pa. 1993). “20 U.S.C. § 1098a. At oral argument, counsel for the Secretary assured the court that final regulations are to be issued by February 11, 1994.”
California Cosmetology Coalition Am. Ass'n of Cosmetology Schs. v. Richard W. Riley, Sec'y of Educ., 110 F.3d 1454 (9th Cir. 1997). “See 20 U.S.C. § 1098a(b). The Secretary believes the term “unearned” in § 1091b(a) requires consideration of the total charges assessed to the student rather than merely what payment the school had already received by the time the student withdraws.”
Coalition of New York State Career Schs., Inc. v. Richard W. Riley, Sec'y of Educ., in His Off. Capacity, 129 F.3d 276 (2d Cir. 1997). “20 U.S.C. § 1098a(b). The 1992 statutory amendments were debated, conferenced, and enacted after the Secretary proposed regulations requiring institutions to bear the risk of student nonpayment in cases of early withdrawal.”
USA Grp. Loan Servs., Inc. v. Riley, 82 F.3d 708 (7th Cir. 1996). “” 20 U.S.C. § 1098a(b). A “successor law” to the Administrative Conference’s recommendations had in fact been enacted in 1990.”
— 20 U.S.C. § 1098a(b)(1) — 1 case
Nat'l Educ. Ass'n v. Devos, 379 F. Supp. 3d 1001 (N.D. Cal. 2019). “(citing 20 U.S.C. §§ 1098a(a)(1), 1221e-3 ). This authority to promulgate regulations extends to regulations defining what is "legally authorized" for purposes of the HEA.”
— 20 U.S.C. § 1098a(b)(2) — 4 cases
Bauer v. Devos, 325 F. Supp. 3d 74 (D.C. Cir. 2018). “" 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Nat'l Educ. Ass'n v. Devos, 379 F. Supp. 3d 1001 (N.D. Cal. 2019). “(citing 20 U.S.C. §§ 1098a(a)(1), 1221e-3 ). This authority to promulgate regulations extends to regulations defining what is "legally authorized" for purposes of the HEA.”
Bauer v. Devos (D.D.C. 2018). “” 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
Bauer v. Devos (D.D.C. 2018). “” 20 U.S.C. § 1098a(a)(1). After obtaining those recommendations, the Department published a notice of intent to engage in negotiated rulemaking regarding borrower defenses and a request for public comment on August 20, 2015.”
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