[Federal Register Volume 73, Number 251 (Wednesday, December 31, 2008)]
[Proposed Rules]
[Pages 80314-80317]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-31176]
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DEPARTMENT OF EDUCATION
34 CFR Chapter VI
Office of Postsecondary Education; Notice of Negotiated
Rulemaking for Programs Authorized Under Title IV of the Higher
Education Act of 1965, as Amended
AGENCY: Department of Education.
ACTION: Notice of establishment of negotiated rulemaking committees.
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SUMMARY: We announce our intention to establish five negotiated
rulemaking committees to prepare proposed regulations under Title IV of
the Higher Education Act of 1965, as amended (HEA). Each committee will
include representatives of organizations or groups with interests that
are significantly affected by the subject matter of the proposed
regulations. We request nominations for individual negotiators who
represent key stakeholder constituencies that are involved in the
student financial assistance and grant programs authorized under Title
IV of the HEA to serve on these committees.
DATES: We must receive your nominations for negotiators to serve on the
committees on or before January 23, 2009.
ADDRESSES: Please send your nominations for negotiators to Patty Chase,
U.S. Department of Education, 1990 K Street, NW., room 8034,
Washington, DC 20006, or by fax at (202) 502-7874. You may also e-mail
your nominations to Patty.Chase@ed.gov. Nominees will be notified by
letter whether or not they have been selected as negotiators, as soon
as the Department's review process is completed.
FOR FURTHER INFORMATION CONTACT: For information about the nomination
submission process contact: Wendy Macias, U.S. Department of Education,
1990 K Street, NW., room 8017, Washington, DC 20006. Telephone: (202)
502-7526. You may also e-mail your questions about the nomination
submission process to: Wendy.Macias@ed.gov.
For information about negotiated rulemaking in general, see The
Negotiated Rulemaking Process for Title IV Regulations, Frequently
Asked Questions at http://www.ed.gov/policy/highered/reg/hearulemaking/
hea08/neg-reg-faq.html. For further information contact: Wendy Macias,
U.S. Department of Education, 1990 K Street, NW., room 8017,
Washington, DC 20006. Telephone: (202) 502-7526. You may also e-mail
your questions about negotiated rulemaking to: Wendy.Macias@ed.gov.
If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service (FRS), toll free at 1-800-877-8339.
Individuals with disabilities can obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
diskette) by contacting Wendy Macias at the address, telephone number,
or e-mail address listed above.
SUPPLEMENTARY INFORMATION: On September 8, 2008, we published a notice
in the Federal Register (73 FR 51990) announcing our intent to
establish negotiated rulemaking committees to develop proposed
regulations to implement (1) the changes made to the HEA by the Higher
Education Opportunity Act of 2008 (HEOA), Public Law 110-315, that
affect programs authorized under Title IV of the HEA and, (2) possibly,
the provision added to section 207(c) of the HEA by the HEOA that
requires the Secretary to submit to a negotiated rulemaking process any
regulations the Secretary chooses to develop under amended section
207(b)(2) of the HEA, regarding the prohibition on a teacher
preparation program from which the State has withdrawn approval or
terminated financial support from accepting or enrolling any student
who received Title IV aid. We announced our intent to develop these
proposed regulations by following the negotiated rulemaking procedures
in section 492 of the HEA. The notice also announced a series of six
regional hearings at which interested parties could suggest topics for
consideration for action by the negotiating committees. We invited
parties to submit topics for consideration in writing, as well. We
heard testimony and received written comments from approximately 250
people. Transcripts from the hearings can be found at http://
www.ed.gov/HEOA.
Regulatory Issues: After consideration of the information received
at the regional hearings and in writing, we have decided to establish
the following five negotiating committees:
Team I--Loans-Lender/General Loan Issues;
Team II--Loans-School-based Loan Issues;
Team III--Accreditation;
Team IV--Discretionary Grants;
Team V--General and Non-Loan Programmatic Issues.
We list the topics each committee is likely to address elsewhere in
this notice under Committee Topics.
Because of the large volume of changes made by the HEOA that must
be implemented through negotiated rulemaking, not all provisions will
be regulated at this time. In particular, the provisions affecting
foreign schools (the majority of which are not effective until July 1,
2010) and unfunded programs will be regulated through the negotiated
rulemaking process at a later date. For Team III--Accreditation, in
addition to the provisions of the HEOA, we have included several issues
identified during the 2007 negotiated rulemaking process, which did not
result in published regulations.
As we did not receive any requests from the public to negotiate the
provision added to section 207(c) of the HEA, and the Secretary has
determined that it is not necessary to issue regulations in this area
at this time, we will not be negotiating this provision of the HEOA in
these negotiated rulemaking sessions. Regulations implementing HEOA
changes to other areas of Title II of the HEA, as well as Titles III,
V, VI, and VII, and those areas of Title I that do not affect the Title
IV programs, will be implemented either through notice-and-comment
rulemaking or, where the regulations will merely reflect the changes to
the HEA and not expand upon those changes, without notice and comment.
The only exception will be in the case of regulations that are needed
to implement the initial grant competition under a new or substantially
revised program authority; in these situations section 437(d)(1) of the
General Education Provisions Act (20 U.S.C. Sec. 1232(d)(1)) permits
the Secretary to issue regulations without first soliciting public
comment.
We intend to select participants for the negotiated rulemaking
committees that represent the interests significantly affected by the
proposed regulations. In so doing, we will follow the new requirement
in section 492(b)(1) of the HEA that the individuals selected must have
demonstrated expertise or experience in the relevant subjects under
negotiation. We will also select
[[Page 80315]]
individual negotiators who reflect the diversity among program
participants, in accordance with section 492(b)(1). Our goal is to
establish committees that will allow significantly affected parties to
be represented while keeping the committee size manageable.
The committees may create subgroups on particular topics that would
involve additional individuals who are not members of the committees.
Individuals who are not selected as members of the committees will be
able to attend the meetings, have access to the individuals
representing their constituencies, and participate in informal working
groups on various issues between the meetings. The committee meetings
will be open to the public.
The Department has identified the constituencies listed below as
having interests that are significantly affected by the subject matter
of the negotiated rulemaking process. The Department plans to seat as
negotiators individuals from organizations or groups representing each
of the constituencies. The Department anticipates that individuals from
organizations or groups representing each of these constituencies will
participate as members of one or more committees, except where noted.
These constituencies are:
Students;
Legal assistance organizations that represent students;
Financial aid administrators at institutions of higher
education;
Business officers and bursars at institutions of higher
education;
Institutional servicers (including collection agencies);
State higher education executive officers;
State Attorneys General and other appropriate State
officials;
State student grant agencies;
Business and industry;
Institutions of higher education eligible to receive.
Federal assistance under Title III, Parts A and B, and Title V of
the HEA, which include Historically Black Colleges and Universities,
Hispanic-Serving Institutions, American Indian Tribally Controlled
Colleges and Universities, Alaska Native and Native Hawaiian-Serving
Institutions, and other institutions with a substantial enrollment of
needy students as defined in Title III of the HEA:
Two-year public institutions of higher education;
Four-year public institutions of higher education;
Private, non-profit institutions of higher education;
Private, for-profit institutions of higher education;
Guaranty agencies and guaranty agency servicers (including
collection agencies);
Lenders, secondary markets, and loan servicers;
Regional accrediting agencies;
National accrediting agencies;
Specialized accrediting agencies;
State approval agencies;
State student grant agencies;
Special populations, including migrant and seasonal
farmworkers, and entities that provide outreach and support services
(for Team IV--Discretionary Grants);
Individuals with intellectual disabilities (for Team V--
General and Non-Loan Programmatic Issues, Student eligibility);
Digital content owners (for Team V--General and Non-Loan
Programmatic Issues, Peer-to-peer file sharing/ copyrighted material);
Technology providers (for Team V--General and Non-Loan
Programmatic Issues, Peer-to-peer file sharing/copyrighted material);
Law enforcement (for Team V--General and Non-Loan
Programmatic Issues, Campus safety issues);
Campus safety (for Team V--General and Non-Loan
Programmatic Issues, Campus safety issues).
The negotiation of proposed regulations for the following issues on
the Team V agenda requires the representation of some very specific
constituencies who are affected parties for purposes of these issues
only:
Title IV eligibility for individuals with intellectual
disabilities;
Peer-to-peer file sharing/copyrighted material; and
Campus safety (Hate crime reporting, Emergency response
and evacuation procedures, Disclosure of fire safety standards and
measures, and Missing person procedures).
For these issues, we will be selecting ``single-issue negotiators''
whose participation on the committee will be limited to the negotiation
of only the specific issue. As previously noted, the committee may form
subgroups for preliminary discussions of these, or other, issues to
include individuals who are not members of the committee but who have
expertise that would be helpful.
The goal of each committee is to develop proposed regulations that
reflect a final consensus of the committee. Consensus means that there
is no dissent by any member of the negotiating committee. An individual
selected as a negotiator will be expected to represent the interests of
their organization or group. If consensus is reached, all members of
the organization or group represented by a negotiator are bound by the
consensus and are prohibited from commenting negatively on the
resulting proposed regulations. The Department will not consider any
such negative comments that are submitted by members of such an
organization or group.
Nominations should include:
The name of the nominee, the organization or group the
nominee represents, and a description of the interests that the nominee
represents;
Evidence of the nominee's expertise or experience in the
subject, or subjects, to be negotiated;
Evidence of support from individuals or groups of the
constituency that the nominee will represent;
The nominee's commitment that he or she will actively
participate in good faith in the development of the proposed
regulations; and
The nominee's contact information, including address,
phone number, fax number, and e-mail address.
For a better understanding of the process, nominees should review
The Negotiated Rulemaking Process for Title IV Regulations, Frequently
Asked Questions at http://www.ed.gov/policy/highered/reg/hearulemaking/
hea08/neg-reg-faq.html prior to committing to serve as a negotiator.
Committee Topics
The topics the committees are likely to address are:
Team I--Loans--Lender/General Loan Issues
Loan discharges based on total and permanent disability
(including Perkins Loans) (HEOA section 437);
Federal PLUS loan repayment, post-half-time enrollment
deferment, and interest capitalization (HEOA section 424);
Consumer credit reporting after loan rehabilitation/
Eligibility for loan rehabilitation (HEOA section 426);
FFEL and Direct Loan teacher loan forgiveness (HEOA
sections 429 and 454);
Applicability of the Servicemembers Civil Relief Act to
Federal Family Education Loan (FFEL) and Direct Loan borrowers and
related FFEL lender special allowance payment calculations on affected
loans (PLUS endorsers) (HEOA section 422);
Borrower eligibility for deferment (HEOA section 422);
Changes to prohibited inducement provisions governing FFEL
lenders and guaranty agencies (HEOA sections 422 and 436);
FFEL Consolidation Loan-borrower eligibility (HEOA section
425);
[[Page 80316]]
New audit requirement for FFEL school lenders and Eligible
Lender Trustees (ELTs) originating FFEL loans for an institution or
school-affiliated organization (HEOA section 436);
Required education loan borrower disclosures by lenders
(HEOA section 120);
Definitions (Education loan, Private education loan,
Lender, Preferred lender arrangement);
Required lender disclosures;
Required lender reporting and certification;
Lender forbearance information and contact requirements
(HEOA section 422);
Guaranty agency notifications to borrowers in default
(HEOA section 422);
Financial and economic literacy information for
rehabilitated borrowers (HEOA section 426);
Required lender disclosures to FFEL borrowers (HEOA
section 434);
Required FFEL (non-consolidation) disclosures before loan
disbursement;
Required FFEL (non-consolidation) borrower disclosures
before repayment;
Special disclosure rules on PLUS and Unsubsidized loans;
New borrower disclosures during repayment;
Notification to a FFEL borrower when the transfer, sale,
or assignment of a loan will result in a change in the party to whom
the borrower must send payments (HEOA section 422);
FFEL Consolidation Loan-application disclosures to Perkins
Loan and Direct Loan borrowers (HEOA section 425).
Consumer education information provided by guaranty
agencies (HEOA section 435).
Team II--Loans--School-based Loan Issues
Cohort default rate calculation, default prevention plans,
and institutional eligibility (HEOA section 436);
Exit counseling (HEOA section 488(b));
Entrance counseling (HEOA section 488(g));
Program Participation Agreement (HEOA section 493);
Code of Conduct;
Preferred Lender Lists;
Private Education Loan Certification;
Required education loan borrower disclosures by
institutions of higher education, and institution-affiliated
organizations (HEOA section 120);
Definitions (Covered institution, Institution-affiliated
organization, Officer, Agent);
Required borrower disclosures by covered institutions and
institution-affiliated organizations that participate in a preferred
lender arrangement;
Required reporting by covered institutions and
institution-affiliated organizations;
Other covered institution and institution-affiliated
requirements;
Information and dissemination activities--terms and
conditions under which students receive FFEL, Direct Loans and Perkins
Loans (HEOA section 488(a));
Disclosure of reimbursements for service on advisory
boards (HEOA section 1011);
Direct Loan borrower disclosures by Direct Loan schools
(HEOA section 451);
Perkins Loan Program;
Mandatory assignment (HEOA section 463);
Reinstatement of loans discharged due to death or
disability if the borrower receives another Title IV loan; if the
borrower earns income in excess of the poverty line; or if the
Secretary determines it is necessary to resume collection (HEOA section
464);
Expansion of teacher, Head Start, and law enforcement
cancellation categories (HEOA section 465);
Addition of new public service cancellation categories
(HEOA section 465);
Military service cancellation (HEOA section 465).
Team III--Accreditation
Distance education and correspondence education (HEOA
sections 495(1)(A) and (5));
Due process and appeals (HEOA section 495(1)(C));
Accreditation team members (HEOA section 495(2)(A));
Operating Procedures (HEOA section 495(2)(C));
Growth monitoring;
Teach-out plan approval;
Summary of agency actions;
Confirmation of disclosure of transfer of credit policies
and criteria.
(The following issues are not from changes made by the HEOA, but
were identified during the 2007 negotiated rulemaking process, which
did not result in published regulations.)
Recognition when not fully compliant;
Demonstration of compliance within 12 months;
Direct assessment programs definition;
Definition of recognition;
Substantive change;
Monitoring throughout period;
Subparts C and D--Recognition process, limitation,
suspension and termination;
Recordkeeping;
Confidentiality.
Team IV--Discretionary Grants
TRIO Programs;
Branch campuses and different populations (HEOA section
403(a));
Appeals process for unsuccessful TRIO grant applicants
(HEOA section 403(a));
Revised outcome criteria and measurement of progress
(HEOA section 403(a));
Foster care and homeless youth (HEOA section 403(a));
Required services and permissible services (HEOA section
403);
GEAR UP (HEOA section 404);
Priority;
Funding rules;
Duration of awards;
Revised definition of partnerships;
Changes to matching funds;
Waiver of matching funds;
Revision to required and allowable activities under GEAR
UP;
Revised scholarships;
Establishment of a scholarship trust fund;
Redistribution or return to the Department of Education
of unused scholarship funds after six years;
Special Programs for Students Whose Families are Engaged
in Migrant and Seasonal Farmwork (HEOA section 408);
High school equivalency program eligibility and
activities;
College assistance migrant program eligibility and
activities;
Reservation and allocation of funds.
Team V--General and Non-Loan Programmatic Issues
Readmission requirements for servicemembers (HEOA section
487);
90/10 rule (HEOA section 493);
Institutional requirements for teach-out/eligibility and
certification procedures-treatment of teach-outs (HEOA sections 493(f)
and 496);
Financial assistance for individuals with intellectual
disabilities (HEOA sections 485(a)(8) and 709) (including ``student
with an intellectual disability'' and ``comprehensive transition and
postsecondary programs for students with intellectual disabilities,''
definitions in Title VII of the HEA that apply);
Definition of baccalaureate ``liberal arts'' programs
offered by proprietary schools (HEOA section 102(d)(1)(A)(i));
[[Page 80317]]
Consumer information;
Peer-to-peer file sharing/copyrighted material (HEOA
sections 488(a) and 493);
Institutional plans for improving the academic program
(HEOA section 488(a));
Placement of and types of employment obtained by
graduates of degree or certificate programs/types of graduate and
professional education (HEOA section 488(a));
Retention rates (HEOA section 488(a));
Hate crime reporting (HEOA section 488(e));
Emergency response and evacuation procedures (HEOA
section 488(e));
Disclosure of fire safety standards and measures (HEOA
sections 488(a));
Missing person procedures (HEOA section 488(g));
Year-round Pell Grant (HEOA section 401);
Pell Grants and Children of Soldiers (HEOA section (HEOA
section 401);
TEACH Grants-extenuating circumstances (HEOA section
412(a)(1));
Federal Work Study (FWS);
Definition of community service (HEOA section 441(2));
Grants for FWS Program (HEOA section 443);
Flexible use of funds (HEOA section 444);
Additional funds for off-campus community service (HEOA
section 446);
Work Colleges (HEOA section 447);
LEAP/Grants for Access and Persistence (GAP) Program (HEOA
section 407);
Notification to students;
GAP non-Federal share;
Application for an allotment under GAP;
Roles of partners in GAP;
GAP Program activities;
Applicability of LEAP Program requirements in GAP;
GAP maintenance of effort requirement.
These topics are tentative. Topics may be added or removed as the
process continues.
Schedule for Negotiations
We anticipate that negotiations for these committees will begin in
February 2009, with each committee meeting for three sessions of
approximately three days at roughly monthly intervals. The committees
will meet in the Washington, DC area. The dates and locations of these
meetings will be published in a subsequent notice in the Federal
Register, and will be posted on the Department's Web site at: http://
www.ed.gov/HEOA. Please note that the upcoming personnel changes in the
executive branch of the Federal government may affect these plans.
The schedule for negotiations has been developed to ensure
publication of the final regulations by the November 1 statutory
deadline for publishing student financial assistance final regulations
(to be addressed by Teams I, II, III, and V). Although not subject to
the November 1 statutory deadline, the schedule for the Title IV
discretionary grant programs (to be addressed by Team IV) will provide
for the publication of regulations in time for competitions to be held
during fiscal year 2010.
Electronic Access to This Document
You may view this document, in text or Adobe Portable Document
Format (PDF), on the Internet at the following site: http://www.ed.gov/
news/fedregister. To use PDF you must have Adobe Acrobat Reader, which
is available free at this site. If you have questions about using PDF,
call the U.S. Government Printing Office toll free at 1-888-293-6498;
or in the Washington, DC area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/
nara/index.html.
Program Authority: 20 U.S.C. 1098a.
Dated: December 24, 2008.
Vince Sampson,
Deputy Assistant Secretary for Postsecondary Education.
[FR Doc. E8-31176 Filed 12-30-08; 8:45 am]
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