[Federal Register Volume 61, Number 231 (Friday, November 29, 1996)]
[Rules and Regulations]
[Pages 60578-60610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30393]
[[Page 60578]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 668, 674, 675, 676, 682, 685, and 690
RIN 1840-AC37
Student Assistance General Provisions, Federal Perkins Loan
Program, Federal Work-Study Program, Federal Supplemental Educational
Opportunity Grant Program, Federal Family Education Loan Programs,
William D. Ford Federal Direct Loan Program, and Federal Pell Grant
Program
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the student
financial assistance programs authorized under title IV of the Higher
Education Act of 1965, as amended (title IV, HEA programs). These
programs include the campus-based programs (Federal Perkins Loan,
Federal Work-Study (FWS), and Federal Supplemental Opportunity Grant
(FSEOG) programs), the Federal Family Education Loan (FFEL) Programs,
the William D. Ford Federal Direct Loan (Direct Loan) Program, the
Federal Pell Grant Program, the State Student Incentive Grant (SSIG)
Program, and the National Early Intervention Scholarship and
Partnership (NEISP) Program. These regulations further the
implementation of Department of Education (Department) initiatives to
reduce burden and improve program accountability. They clarify and
consolidate current policies and requirements, improve the delivery of
title IV, HEA program funds to students and institutions, and further
protect students and the Federal fiscal interest.
DATES: Effective date: These regulations take effect on July 1, 1997.
However, affected parties do not have to comply with the information
collection requirements in Secs. 668.16, 668.165, and 668.167 until the
Department publishes in the Federal Register the control numbers
assigned by the Office of Management and Budget (OMB) to these
information collection requirements. Publication of the control numbers
notifies the public that OMB has approved these information collection
requirements under the Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT:
1. For Project EASI (Easy Access for Students and Institutions):
Fred Sellers, U.S. Department of Education, 600 Independence Avenue,
S.W., Regional Office Building 3, Room 3045, Washington, D.C. 20202.
Telephone: (202) 708-4607.
2. For the Student Assistance General Provisions: Rachael
Sternberg, U.S. Department of Education, 600 Independence Avenue, S.W.,
Regional Office Building 3, Room 3053, Washington, D.C. 20202.
Telephone: (202) 708-7888;
3. For the Federal Perkins Loan Program: Sylvia R. Ross, U.S.
Department of Education, 600 Independence Avenue, S.W., Regional Office
Building 3, Room 3053, Washington, D.C. 20202. Telephone: (202) 708-
8242;
4. For the Federal Pell Grant, FWS, and FSEOG programs: Kathy S.
Gause, U.S. Department of Education, 600 Independence Avenue, S.W.,
Regional Office Building 3, Room 3053, Washington, D.C. 20202.
Telephone: (202) 708-4690;
5. For the FFEL Programs: Patsy Beavan, U.S. Department of
Education, 600 Independence Avenue, S.W., Regional Office Building 3,
Room 3053, Washington, D.C. 20202. Telephone: (202) 708-8242;
6. For the Direct Loan Program: Rachel Edelstein, U.S. Department
of Education, 600 Independence Avenue, S.W., Regional Office Building
3, Room 3053, Washington, D.C. 20202. Telephone: (202) 708-9406.
Individuals who use a telecommunications device for the deaf (TDD)
may call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time Monday through Friday.
SUPPLEMENTARY INFORMATION: On September 23, 1996, the Secretary
published a notice of proposed rulemaking (NPRM) in the Federal
Register (61 FR 49874). In the NPRM, the Secretary proposed to amend
the Student Assistance General Provisions regulations (part 668) which
apply to all of the title IV, HEA programs and the regulations for the
Federal Pell Grant (part 690), Federal Perkins Loan (part 674), FWS
(part 675), FSEOG (part 676), FFEL (part 682), and Direct Loan (part
685) programs. The Secretary proposed to amend these regulations to
further the implementation of several major initiatives within the
Department. These initiatives include: (1) Project EASI; (2) the
President's Regulatory Reform Initiative; and (3) improved program
accountability to protect students and the Federal fiscal interest. A
discussion of these initiatives can be found in the preamble to the
NPRM on pages 49874 through 40875.
The NPRM included a discussion of the major issues surrounding the
proposed changes which will not be repeated here. The following list
summarizes those issues and identifies the pages of the preamble to the
NPRM on which a discussion of those issues can be found:
The adoption of a uniform definition of payment period for all the
title IV, HEA programs as proposed in Sec. 668.4 (pages 49875-49876).
The provision that an institution use electronic services that the
Secretary provides on a substantially free basis as a new standard of
administrative capability as proposed in Sec. 668.16(o) (pages 49876-
49877).
The restructuring and clarification of the provisions under subpart
K, Cash Management, of the Student Assistance General Provisions
regulations (pages 49877-49882).
The inclusion of a just-in-time payment method as proposed in
Sec. 668.162(c) (pages 49877-49878).
The revision of the definition of a disbursement as proposed in
Sec. 668.164(a) (page 49878).
The requirement that title IV, HEA program funds be disbursed on a
payment period basis as proposed in Sec. 668.164(c) (pages 49878-
49879).
The clarification of the requirements for early disbursements as
proposed in Sec. 668.194(f) (page 49879).
The consolidation of the individual title IV, HEA program
requirements regarding late disbursements as proposed in
Sec. 668.164(h) (page 49879).
The revised student notification requirements as proposed under
Sec. 668.165 (pages 49879-49880).
The exemption from the current excess cash requirements for an
institution that receives funds under the just-in-time payment method
as provided in Sec. 668.166(a)(2) (pages 49880-49881).
The requirement that an institution disburse FFEL Program funds
within a timeframe comparable to that permitted for disbursing funds
under the other title IV, HEA programs as proposed in Sec. 668.167(a)
(page 49881).
The requirement that an institution return FFEL Program funds to a
lender if the institution does not disburse those funds within
specified timeframes as proposed in Sec. 668.167(b) (page 49881).
The procedures under which the Secretary would monitor more
carefully an institution's administration of the FFEL Programs as
proposed under Sec. 668.167(d) and (e) (pages 49881-49882).
The elimination of the requirement under Sec. 682.207(b) of the
current FFEL Program regulations that an institution maintain a
separate bank account for FFEL Program funds as proposed in
Sec. 668.163(a) (page 49878).
[[Page 60579]]
The conforming changes for the campus-based, Federal Family
Education Loan, Direct Loan, and Federal Pell Grant programs resulting
from the adoption of a uniform definition of a payment period as
proposed in Secs. 674.2, 675.2, 676.2, 682.200, 685.102, and 690.2
(page 49882).
The amendments to the disbursement rules for the FFEL and Direct
Loan programs as a result of the adoption of a uniform definition of a
payment period as proposed in Secs. 682.207, 682.604, and 685.301 (page
49882).
Substantive Changes to the NPRM
The following discussion reflects substantive changes made to the
NPRM in the final regulations. The provisions are discussed in the
order in which they appear in the proposed rules.
Student Assistance General Provisions
Subpart B--Standard for Participation in the Title IV, HEA Programs
Section 668.16 Standards of Administrative Capability Electronic
Services
To reflect public comment, the Secretary is revising the proposed
regulations by changing the reference to ``electronic services'' to
``electronic processes.'' This revision is being made to clarify that
the Secretary's intent is that institutions participate in the
electronic processes, e.g., electronic data exchange and the Student
Financial Assistance Bulletin Board Service (BBS), by which the
Secretary administers the title IV, HEA programs and that institutions
are not restricted to using software and services provided by the
Secretary.
Subpart K--Cash Management
Section 668.161 Scope and Purpose
The proposed regulations are revised to clarify that FFEL Program
funds are held in trust by an institution for the intended student
beneficiaries, the lenders, the guaranty agencies, and the Secretary.
Section 668.162 Requesting Funds
To take advantage of technological improvements in funding
procedures, the Secretary anticipates the implementation by October 1,
1997, for fiscal year 1998, the Grants and Payments System (GAPS) of
the Department of Education Central Automated Processing System
(EDCAPS). This system, when operational, meets new Federal financial
system standards, provides institutions both grant and payment
information, and simplifies expenditure reporting. A key element of the
new system is the identification of the source of requested funds by
the specific designation assigned to those funds by the Secretary. The
Secretary notifies the institution of this designation at the time the
funds are authorized. Under GAPS, the institution is able to select the
particular authorization under which it seeks funds from among the
various authorizations that may be available. Institutions that lack
the technological capability of accessing GAPS are still able to
request funds from the Department by telephone or other existing
methods. Regardless of the method used by an institution to request
funds, any request made after implementation of GAPS during fiscal year
1998 and thereafter must include the specific designation for those
funds.
Section 668.164 Disbursing Funds
Definition of Disbursement
The Secretary is revising the proposed regulations to clarify that
if an institution credits a student's institutional account with title
IV, HEA program funds earlier than 10 days before the first day of
classes of a payment period, for example, for the purpose of preparing
a tuition and fee bill for that student, the Secretary considers that
the institution makes that disbursement on the 10th day before class.
Early Disbursements
The Secretary is revising the proposed regulations to clarify that,
if an institution offers an educational program using semesters,
trimesters, or quarters, an institution may disburse title IV, HEA
program funds up to 10 days before the beginning of any payment period
even if the previous payment period is not ended.
Late Disbursements
The Secretary is revising the proposed regulations to remove the
requirement that, in order to make a late disbursement of a Federal
Perkins Loan or an FSEOG Program award, an institution must have
received from the student an acceptance of that loan or award. A late
disbursement under these two programs may be made as long as the
student is awarded aid prior to the date the student becomes
ineligible.
The regulations are revised to allow PLUS loans to be disbursed
under the late disbursement provisions.
Section 668.165 Notices and Authorizations Disbursement Notice
The Secretary is revising the proposed notice requirements to allow
a parent, as well as a student, to cancel all or a portion of a loan or
loan disbursement.
The Secretary is revising the proposed timeframe requiring an
institution to notify a student or parent that the institution credited
the student's account with Direct Loan, FFEL, or Federal Perkins Loan
Program funds, the date and amount of the disbursement, and the
student's or parent's right to refuse all or a portion of a loan or
loan disbursement. The revision allows the institution to provide the
required notice at any point in time during a 60-day window that is no
earlier than 30 days before, and no later than 30 days after, the date
the institution disburses those funds.
The timeframe during which a student or parent may request a loan
cancellation is revised to clarify that the student or parent may
request cancellation either for 14 days from the date the notice was
sent by the institution or, if the notice is sent more than 14 days
before the first day of the payment period, the first day of the
payment period.
Section 668.167 FFEL Program Funds
The Secretary is revising the proposed regulations to provide that
an institution must return to a lender loan proceeds received by EFT or
master check if the institution does not disburse the funds within (a)
10 business days following the date the institution receives the loan
funds if the institution receives the funds on or after July 1, 1997
and (b) 3 business days following the date the institution receives the
loan funds if the institution receives the funds on or after July 1,
1999.
The regulations are also revised to provide that, for funds that
are not disbursed within the specified timeframe, the institution must
return the funds to the lender no later than 10 business days after the
last day those funds are required to be disbursed. The Secretary is
also revising the regulations to provide that if the borrower
establishes eligibility before the institution returns the loan funds
to the lender, the institution may disburse those funds to the
borrower.
Executive Order 12866
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary to be necessary for administering the title IV,
[[Page 60580]]
HEA programs effectively and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these regulations, the Secretary has determined
that the benefits of the regulations justify the costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
The potential costs and benefits of these final regulations are
discussed elsewhere in this preamble under the heading Final Regulatory
Flexibility Analysis, and in the information previously stated under
Supplementary Information and Analysis of Comments and Changes.
Analysis of Comments and Changes
In response to the Secretary's invitation to comment in the NPRM,
more than 250 parties submitted comments. An analysis of the comments
and of the changes in the regulations since the publication of the NPRM
follows.
Major issues are discussed under the section of the regulations to
which they pertain. Technical and other minor changes--and suggested
changes the Secretary is not legally authorized to make under
applicable statutory authority--are not addressed. An analysis of the
comments received regarding the initial regulatory flexibility analysis
can be found elsewhere in this preamble under the heading Final
Regulatory Flexibility Analysis.
Part 668--Student Assistance General Provisions
Subpart A--General
Section 668.4 Payment Period
Payment Period Definition (Sec. 668.4)
Comments: Many commenters supported the Secretary's efforts to
provide consistency among the title IV, HEA programs through the
proposed uniform payment period definition. One institution
specifically endorsed the requirement that, in the case of the FFEL and
Direct Loan Programs, as in other title IV, HEA programs, quarter
institutions make at least one disbursement each quarter. Two
commenters advocated bringing the loan programs further in line with
the Federal Pell Grant Program by requiring that loan disbursements be
prorated according to Federal Pell Grant Program rules. Another
commenter argued for expanding the use of payment periods for loans in
order to eliminate the distinction between borrower-based and scheduled
academic years and the confusion over whether summer terms should be
headers or trailers.
A student advocate organization supported the proposed amendment
permitting clock-hour institutions or institutions that use credit
hours without terms to make the second disbursement only after that
student actually completes one-half the required clock or credit hours,
rather than when half the number of days in the loan period have
elapsed. This commenter believed this change would protect students,
many of whom withdraw from trade institutions before completing one-
half the required hours, from incurring double the loan obligation.
Discussion: The Secretary agrees that title IV, HEA program
requirements should be made more consistent. With regard to the
suggestions that the loan programs be brought further in line with the
Federal Pell Grant Program, the Secretary will consider this option for
the future but notes that currently there are statutory prohibitions
against any further conforming changes. Further, the Secretary does not
intend to eliminate the use of borrower-based academic years and
scheduled academic years in the FFEL and Direct Loan Programs. These
options provide institutions flexibility in awarding loans and
monitoring annual loan maximums for an academic year.
Changes: None.
Comments: A significant number of commenters objected to the
proposed payment period provisions. One commenter who believed the
uniform payment period definition would create great inefficiency and
confusion urged the Secretary to delay implementing the payment period
provisions in order to consult with institutions, associations, and
lenders to try to accommodate program differences. Some commenters
stated that the Secretary did not identify any areas of abuse by
institutions or lenders in connection with the second disbursement of
loan proceeds or did not provide sufficient reasons for the proposed
changes in policy. Several commenters assumed that the Secretary is
proposing additional disbursement requirements on quarter and trimester
institutions for the benefit of the federal fiscal interest. Many
commenters who objected to the proposed payment period provisions
stated that institutional default rates have significantly decreased
over the past six years and suggested that there is no need for the
additional burden of increased disbursements and monitoring of student
progress proposed in this regulation. In response to the Secretary's
efforts to streamline and simplify the disbursement rules for all title
IV, HEA programs, one commenter questioned the validity of establishing
the same disbursement rules for programs with different eligibility
requirements and also questioned who would benefit from the proposed
change.
Discussion: The Secretary continues to believe that establishing a
uniform payment period definition is appropriate at this time. The
Secretary does not expect the proposed changes to cause title IV, HEA
program participants significant problems and, therefore, does not
intend to delay revising program regulations accordingly. Although the
Secretary has not identified any particular areas of abuse of the
existing disbursement rules, the Secretary believes that revising these
existing rules to make them more consistent facilitates the
administration of the title IV, HEA programs including simplification
of the delivery system and provides additional protections to limit
excessive borrowing. In addition, the Secretary believes that the
proposed changes are in the Federal fiscal interest.
Changes: None.
Comments: With regard to the proposed requirements for term
institutions, commenters argued against the proposal to require more
than two disbursements for programs using quarters or trimesters,
stating that this proposal would increase the administrative burden and
expenses for the institution, lenders, and guaranty agencies. Several
of these commenters noted that this policy would increase the
administrative burden of verifying eligibility as well. Many of these
commenters suggested that institutions using academic terms and credit
hours should be allowed to choose whether to make a disbursement each
semester, trimester, or quarter, as applicable, or twice a year as is
currently allowed. Several commenters argued that, for quarter or
trimester institutions, scheduling two larger disbursements, rather
than three or four smaller disbursements, is particularly appropriate
for graduate and professional institutions, where no Federal Pell Grant
and virtually no campus-based funding are disbursed to students. One
commenter stated that requiring more frequent disbursements for quarter
and trimester institutions will complicate loan processing for midyear
transfers and will make the
[[Page 60581]]
paper financial aid transcript an absolute necessity for these
transfers.
Discussion: In response to the arguments against requiring quarter
or trimester institutions to disburse on a term basis rather than twice
per year, the Secretary has proposed this change for two reasons.
First, these disbursement rules aid students in managing their funds
and may reduce overborrowing.
Second, as stated in the preamble to the NPRM, this approach
simplifies the administration of the title IV, HEA programs. This
change assists in the development of a single, integrated title IV
delivery system.
The Secretary recognizes that an institution is required to make
three disbursements of a loan for an academic year if an educational
program is offered using quarters that conform to the traditional usage
of that term, i.e., each term consists of approximately 10-12 weeks of
instruction, full-time is defined as at least 12 quarter credits, and
the program's academic calendar includes three quarters in the fall,
winter, and spring, and often a summer quarter. As noted, the Secretary
believes that students enrolled in educational programs offered using
quarters will be assisted in managing their funds and prevented from
overborrowing.
Although several commenters suggested that the proposed regulations
require institutions using trimesters to make more disbursements than
is currently required, most trimester institutions will be required to
make only two disbursements under these proposed provisions. Most
traditional institutions using trimesters typically schedule only two
trimesters in an academic year; therefore, these institutions are
usually required to make only two disbursements for the loan period. In
some instances, the Secretary is aware that an educational program may
use the term ``trimester'' to describe its academic terms but those
academic terms do not conform to the traditional usage, i.e., each term
consists of approximately 15 weeks of instruction, full-time is defined
as at least 12 semester or trimester hours, and the program's academic
calendar generally consists of three terms, one each in fall, spring,
and summer.
If a term referred to as a trimester or quarter does not conform to
the traditional usage, the references to trimesters or quarters in the
title IV, HEA program regulations do not apply.
With regard to the comment concerning midyear transfers, the
Secretary does not believe that the proposed changes create any extra
institutional burden in processing aid for mid-year transfers.
Changes: None.
Comments: Many commenters stated that the Secretary was imposing
additional requirements on clock-hour and nonterm credit-hour
institutions by requiring that their students complete the necessary
number of hours prior to receiving a subsequent disbursement of title
IV, HEA program assistance. Commenters who objected to this proposal
stated that this requirement would result in a constant readjustment of
scheduled disbursements, would require institutions to monitor
individual student's progress, and would result in disbursements
occurring earlier than the midpoint of the loan period or later than
the midpoint, depending on each individual student's progress.
Commenters also argued against the proposed payment period policy
because they indicated that students do not incur costs according to
hours completed. These commenters argued that payment periods for these
programs should be measured in length of time rather than by completion
of credits.
One institution using credit hours without terms explained that
scheduled breaks in the year fall close to the timing of traditional
semesters. The institution noted that under the proposed regulations,
because the institution does not use terms, the time when the student
completes half of the credits for the year may be significantly longer
than half the year in length. Another commenter who objected to the
proposed requirement for credit-hour programs without terms stated that
the Secretary is imposing more stringent standards on nonterm
institutions than on term institutions.
Several commenters objected to the proposed policy that eliminates
the current Federal Pell Grant payment period definition for clock-hour
programs that are offered in terms. Clock-hour institutions with terms
argued that a term is a payment period, regardless of whether the
courses are measured in clock or credit hours. Commenters argued that
this proposal would create cash flow problems for clock-hour
institutions with academic terms and would result in students receiving
their aid at unpredictable times with payments overlapping terms and
academic years. The institutions explained that they assess fees on a
term basis; they also argued that if they are not allowed to schedule
disbursements according to terms, their students may have fewer
disbursements, which might be a detriment to students with poor money
management skills. Further, they noted that because institutions would
not be allowed to make disbursements until after the student completes
the required number of clock hours, students will not have loan funds
when tuition and fees are due. Finally, these institutions argued that
allowing clock-hour institutions to disburse according to academic
terms would simplify the rules and streamline the disbursements of
title IV, HEA program funds.
Discussion: In response to the commenters objecting to the proposed
requirement that clock-hour institutions with terms track hours
completed, the Secretary reminds commenters that clock-hour
institutions with or without terms are currently required to track
hours completed in order to make subsequent Federal Pell Grant
disbursements. Under the current Federal Pell Grant Program
requirements, if a student does not complete all of the clock hours in
a term for which he or she has been paid, the student may not receive
the payment for the subsequent term until the student has completed the
clock hours for the prior term. Further, the second disbursement is
reduced in accordance with the number of hours that are attributed to
the first payment period. For example, a student is enrolled in a 600
clock-hour program with two terms of 300 clock hours each. In the first
term, the student completes only 250 clock hours. The first payment
period is extended into the second term. When the student completes the
first 50 hours in the second term, the student may receive a second
disbursement based on 250 clock hours (i.e., the balance of the hours
in the second term. The student would then receive a third disbursement
based on 50 clock hours after completing the 250 hours of the second
term for which he or she was paid. Under the revised payment period
definition, the student receives a second disbursement after completing
50 hours in the second term and that disbursement is based on 300 clock
hours. There is no third disbursement.
Through subregulatory guidance, the Secretary has directed clock-
hour institutions without terms to track clock hours completed for
subsequent loan disbursements. In proposing this rule, the Secretary
intended to require clock-hour institutions with and without terms to
track clock hours completed for purposes of disbursing subsequent loan
proceeds in order to align the loan programs more closely with the
Federal Pell Grant Program. However, the Secretary emphasizes to the
commenters that there are differences between the disbursement rules
for loans and for the Federal Pell Grant Program regarding
[[Page 60582]]
clock-hour programs. Because of the statutory requirement that
institutions not disburse the second disbursement of a FFEL or Direct
Loan until at least one-half of the loan period has elapsed (see
Sec. 428G(b) of the HEA), the Secretary proposed that programs
measuring progress in clock hours may not make the second disbursement
until the later of the calendar midpoint of the loan period or the date
that the student completes half the clock hours in the loan period.
These provisions should address the commenters' concerns that students
might receive proceeds prior to the midpoint of the loan period.
In response to the clock-hour institutions that stated that the
proposed payment period definitions would limit their ability to
disburse as often as they currently disburse, the Secretary reminds
them that they can always make smaller, more frequent, equal
disbursements of the proceeds within the payment period, as long as the
student is completing the required number of clock hours necessary for
the next disbursement.
The Secretary also believes that it is appropriate that credit-hour
institutions without terms track credit hours completed. This policy
has been a long-standing requirement in the Federal Pell Grant Program,
and the Secretary believes that this requirement is appropriate for
loan disbursements as well. The Secretary wishes to emphasize that the
loan disbursement rules differ from the Federal Pell Grant disbursement
rules for credit-hour institutions without terms; these rules are found
under 34 CFR 682.604(c)(7) and 34 CFR 685.301(b)(5). As discussed
above, because of the statutory requirement that institutions not
disburse the second disbursement until at least one-half of the loan
period has elapsed, the Secretary proposed that programs measuring
progress in credit hours without terms may not make the second
disbursement until the later of the calendar midpoint of the loan
period or the date that the student completes half the academic
coursework in the loan period.
Changes: None.
Comments: Several commenters stated that the Secretary's efforts to
use terms to protect students and title IV, HEA program recipients has
been ineffective and that the Secretary should define a standard
minimum term. These commenters further stated that some institutions
have defined academic terms for as little as four weeks in length in
order to circumvent federal regulations such as those for pro rata
refunds.
Discussion: With regard to defining a standard minimum term, the
Secretary does not believe it is appropriate to define what an
institution's academic calendar must be. Further, the commenters are
reminded that the loan programs require institutions to use either
credit hours with standard terms or to monitor credit and clock hours
earned. For the Federal Pell Grant Program, institutions can disburse
according to short nonstandard terms. However, payments are prorated
based on the hours in these short terms, so there is no need to require
disbursements according to a defined minimum term.
Changes: None.
Comments: In the NPRM, the Secretary specifically requested
comments on whether to incorporate the proposed approach or the
existing Federal Pell Grant Program rules for certain remaining
portions of programs less than one academic year but greater than one-
half an academic year. Under the proposed approach, for credit-hour
programs without terms or clock-hour programs greater than an academic
year, when the remainder of the program is less than an academic year
but greater than one-half an academic year, this remainder comprises
two equal payment periods. Several commenters supported the proposed
policy, noting that this approach allocates title IV, HEA program funds
more evenly over the remaining portion of the programs than do the
current Federal Pell Grant provisions.
One commenter stated that the proposal to change the determination
of payment periods for the remainder of certain programs longer than
one year in length would require major changes in software programs
that have been designed to pay under the existing payment period
definitions. The commenter stated that the change would decrease the
amount of Federal Pell Grant funds awarded in the third payment period
of a program greater than one year, but less than two, and would place
additional, unnecessary financial burden on both students and
institutions. This commenter also stated that the 1994 attribution
rules were eliminated in reference to loan payments, but that this
change appears to be suggesting that attribution rules are again
effective. Another commenter argued against the proposed rule because,
the commenter stated, this rule would result in some students receiving
less Federal Pell Grant funding when cross-over periods are used. This
commenter suggested that the strict cut off for award-year eligibility
be revised to allow students impacted by this policy to either receive
more than a full Federal Pell Grant in a given award year or that the
concept of cross-over payment be redefined to allow a student to
receive payment from a subsequent award year for a payment period
completed in the prior award year. Another commenter similarly argued
that institutions be allowed to disburse more than one Federal Pell
Grant to degree-seeking students completing more than one academic year
during an award year.
One commenter stated that the commenter's organization did not have
sufficient time for analysis of whether the Federal Pell Grant approach
or the proposed approach should be adopted for the final rule.
Therefore, the commenter suggested either a pilot program to collect
data or allowing institutions to choose either the existing Federal
Pell Grant approach or the proposed approach, as long as they use one
approach consistently.
Discussion: Although one commenter suggested that these rules would
result in decreased Federal Pell Grant awards in some circumstances,
the Secretary assures the commenter that the total amount of Federal
Pell Grant awarded under the proposed rules would be the same as the
amount awarded under the existing rules. For programs that are longer
than one year in length but less than two, where the remaining period
of enrollment is greater than half an academic year, the student would
receive a smaller third disbursement than under the current rules, but
the fourth disbursement would be earlier and larger, and the total
amount would be the same.
With regard to the question concerning whether a student whose
payment period includes a cross-over period would receive less Federal
Pell Grant funding under the proposed rule, the Secretary acknowledges
that in some limited cases recipients may receive less Federal Pell
Grant funding under these provisions than under the current provisions.
However, the Secretary reminds the commenter that even under the
current provisions, some students receive reduced Federal Pell Grant
amounts when their payment period is not included as a cross-over
period as a result of the timing of the academic schedule. When these
regulations become effective, institutions can adjust their academic
calendars to ensure that their students are not affected by the cross-
over payment period restrictions.
In response to the suggestion that institutions be allowed to
disburse more than one Federal Pell Grant in a given award year, the
Secretary recognizes that there was a statutory provision that
[[Page 60583]]
would have allowed the Secretary to increase the number of Federal Pell
Grant awards a recipient can receive within one award year; however,
there has never been any appropriation available to fund additional
Federal Pell Grants. Therefore, the Secretary does not intend to
increase the number of Federal Pell Grant awards a recipient can
receive within one award year.
Changes: None.
Comments: One commenter asked for clarification concerning the
meaning of the phrase, ``other academic term'' in proposed
Sec. 668.4(a). This commenter further noted a contradiction between
proposed Sec. 668.4(a) and proposed 34 CFR 685.301(b)(5), as this
latter section provides that institutions using nonstandard terms
cannot disburse Direct Loans according to the nonstandard terms. This
commenter suggested defining payment periods for nonstandard terms as
the periods of time needed to complete the first and second halves of
the programs, as measured in clock or credit hours.
Another commenter asked for clarification as to how to apply
payment periods to nonstandard term programs when the academic year
exceeds a 12-month period or calendar year. The commenter noted that,
in accordance with 34 CFR 682.603(f)(2), a loan period may not exceed
12 months. Therefore, the commenter suggested that payment periods are
greatly disproportional to the loan period. The commenter gave an
example where the first payment period could be nine months for an
academic year that is 18 months in duration, even though the loan
period is 12 months. This commenter stated that the proposed changes do
not accommodate eligible programs with an academic year exceeding 12
months.
Discussion: The commenter is correct in noting a difference in
language between proposed Sec. 668.4(a) and the Direct Loan
disbursement rules found in proposed 34 CFR 685.301(b)(5). There is
also a difference in the proposed FFEL rules under 34 CFR
682.604(c)(7). The reason for this disparity is that institutions can
disburse according to ``other academic terms,'' that is, nonstandard
terms, in the Federal Pell Grant Program. In the loan programs,
institutions using nonstandard terms cannot disburse according to these
terms. For nonstandard term credit-hour institutions, institutions are
required to disburse the second loan disbursement on the later of the
calendar midpoint between the first and last scheduled days of class or
the date that the student has completed half the academic coursework in
the loan period. The slight difference between the Federal Pell Grant
Program's and the loan programs' disbursement rules exists because of
the statutory requirement that institutions not disburse the second
disbursement of a Direct or FFEL loan until at least one-half of the
loan period has elapsed. See Sec. 428G(b) of the HEA. Also, Federal
Pell Grant Program requirements allow institutions to disburse Federal
Pell Grants according to nonstandard terms because Federal Pell Grant
funds are prorated according to the number of hours in the term
relative to the number of hours in the academic year. Institutions may
not disburse Direct Loan or FFEL program loans according to nonstandard
terms; unlike under the Federal Pell Grant Program, loans are not
prorated based on the number of hours in a term.
The commenter above correctly noted that a loan period cannot be
greater than 12 months. Institutions disbursing loans would not be able
to certify or originate a loan for a period greater than one year in
length. Institutions with an academic year longer than 12 months would
be required to schedule disbursements according to the rules in 34 CFR
682.604(c)(7) and 34 CFR 685.301(b)(5), as applicable.
Changes: None.
Comments: One commenter noted that the Secretary is moving towards
all title IV, HEA program funds being disbursed at the same time and
asked whether the Secretary would propose that certain Federal Pell
Grant recipients be subject to the 30-day delayed disbursement required
for first-time, first-year FFEL and Direct Loan student borrowers.
Discussion: The Secretary does not intend to propose that Federal
Pell Grant recipients be subject to the 30-day delay required for
first-time, first-year borrowers. Although the Secretary has proposed
certain changes in order to promote conformity among disbursement rules
for different programs, the Secretary does not believe that all
restrictions within certain programs should be implemented across all
of the title IV, HEA programs. Just as the Secretary does not propose
to require multiple disbursement of Federal Pell Grants for students
enrolled in one payment period only, the Secretary believes it is not
necessary to require that any Federal Pell Grant recipients be subject
to a 30-day delay in disbursements.
The Secretary notes that under the Federal Pell Grant Program,
institutions have the authority to make disbursements at such times as
best meet the needs of students. See 34 CFR 690.76(a). The Secretary
notes, however, that delaying disbursement for institutional purposes
to avoid refund requirements would not be in compliance with 690.76(a).
Changes: None.
Comments: One institution suggested that the language in this
section identifying payment periods as the ``period of time in which
the student completes [the first or second half of the program] as
measured in credit or clock hours,'' does not require that the student
must successfully complete the credit or clock hours in a payment
period. This institution argued that, for a student who did not
successfully complete the hours in a payment period, the institution
should determine financial aid eligibility, based on the institution's
satisfactory academic progress policy. Another commenter asked which
concept of payment period completion would be used: scheduled hours or
hours actually completed.
Discussion: The Secretary intends that institutions subject to
these provisions, i.e., institutions offering programs using credit
hours without terms or clock hours, monitor credit or clock hours that
are successfully completed including excused absences as provided in
Sec. 668.164(b)(3). For credit-hour programs without terms and clock-
hour programs, students may not receive subsequent disbursements until
they have actually completed the required number of credit or clock
hours.
Changes: None.
Comments: One commenter noted that proposed Sec. 668.4(b)(3)
provides an exception to the payment period definition for programs
where students do not earn any credits until the last day of the year.
The commenter noted that the section refers back to paragraphs (b)(1)
and (b)(2), which affect not only credit-hour institutions without
terms but also clock-hour institutions. The commenter asked, therefore,
whether the Secretary intends to apply this rule to programs using
credit hours without terms only or to both credit-hour programs without
terms and all clock-hour programs.
Discussion: As under the current Federal Pell Grant Program
regulations, the Secretary intends that this provision apply only to
educational programs without terms that measure progress in credit
hours.
Changes: The Secretary has added a clarification that
Sec. 668.4(b)(3) applies only to eligible programs that measure
academic progress using credit hours.
Comments: Several commenters suggested that the proposed policy
would affect the current refund provisions. One commenter stated that
defining payment periods by completion of credit hours is in
[[Page 60584]]
contradiction to the pro rata refund regulations that require refunds
to be calculated based on the portion of the period of enrollment.
Several commenters noted under this proposed policy, certain
institutions would be required to make fewer, and therefore, larger
disbursements; thus, students who withdraw early will owe greater
repayments than if funds had been disbursed according to academic
terms.
One institution objected to the universal payment period definition
specifically because if the first payment period changes to the
completion of the first half of the academic year, and the student
leaves before the completion of the payment period, what the student
would have received in grants will now come out of pocket.
One commenter stated that if the institution must use as a minimum
450 hours for a period of enrollment as a basis for charges, but can
only disburse 289.5 hours worth of Federal Pell Grant funds, there may
be a balance due which would be reflected as an unpaid scheduled cash
payment for refund purposes.
Discussion: With regard to the general comment that the proposed
payment period policy would affect refunds provisions, the Secretary
notes that the requirements for disbursements of title IV aid are not
related to title IV refund requirements. In response to the commenter
who stated that refunds must be calculated based on the portion of the
period of enrollment, the Secretary wishes to clarify that the refund
calculation determines the unearned portion of the actual charges for
the period of enrollment for which the student was charged. Although
one commenter suggested a relationship to the amount of grants received
and the refund calculation, the Secretary notes that the refund
calculation does not determine the source from which an institution
earns funds. Several commenters noted that the proposed payment period
provisions would result in institutions making fewer, and therefore,
larger disbursements; however, institutions are reminded that they are
allowed to schedule smaller, more frequent, disbursements within a
payment period, rather than making one disbursement per payment period.
Finally, in response to the commenter who noted a possible discrepancy
between the minimum number of clock hours that may be used as a basis
for charges vs. the amount of Federal Pell Grant funds that may be
disbursed, the Secretary notes that such a discrepancy may exist under
the current disbursement rules and, therefore, is not a result of the
proposed changes to the payment period requirements.
Changes: None.
Comments: Several commenters objected to the Secretary's proposal
that, for a student enrolled in an eligible clock-hour program, the
institution may include excused absences for up to 10 percent of the
clock hours in the payment period in determining whether the student
has completed the payment period, stating that this proposal dictates
an attendance policy to clock-hour institutions. One commenter stated
that mandating 10 percent of the clock hours in a payment period as the
maximum excused absences an institution may include in determining
whether the student has completed the payment period impinges on
academic freedom and that the satisfactory academic progress
regulations, as well as State and accrediting agency oversight, already
address this area. This commenter noted that many colleges maintain no
attendance requirements.
On the other hand, one student advocate organization generally
supported the proposed regulation's policy regarding excused absences
for clock-hour institutions. However, this commenter suggested lowering
the percentage of excused absences that could be counted towards
attendance from 10 percent to 5 percent, arguing that if these programs
are meaningful, students should not be permitted to miss so many hours
and still receive Federal aid.
Discussion: As stated in the preamble to the proposed rule, except
where an accrediting agency or State licensing agency sets a more
rigorous standard, the Secretary believes that excused absences of more
than 10 percent of clock hours in a payment period would impair the
educational attainment of the student and would not make the best use
of Federal funds (60 FR 49879). This requirement is for purposes of
title IV, HEA programs only and does not infringe on academic
prerogatives of the institution. Institutions can adopt another policy
for other purposes.
Changes: None.
Comments: Many commenters argued that, if the loan period is only
one term, only one disbursement should be required. Several commenters
stated that for a student using the loan for living expenses, getting
the second disbursement halfway through the term does not adequately
cover the student's financial needs. One institution suggested that if
the Secretary cannot change the regulations for all institutions, the
Secretary might establish eligibility criteria for certain institutions
that would be allowed to make one disbursement in a single-term
situation. One commenter pointed out that allowing for a single
disbursement of a loan when the payment period is only one term would
further align loan disbursement rules with Federal Pell Grant
disbursement rules.
One experimental site institution that is exempt from the multiple
disbursement requirements for single semester loans noted that it has
received positive feedback from students regarding single disbursements
for one term. This institution recognized that the multiple
disbursement requirement is statutory and stated its support for
efforts to remove this statutory requirement. Another experimental site
institution that is exempt from multiple disbursement requirements for
single-term loans asked for confirmation that the multiple disbursement
requirement for single payment periods in these regulations will not
affect the exemption for experimental site institutions.
Discussion: The Secretary reminds commenters that unless
institutions have received waiver under the Experimental Sites Program
(authorized under Sec. 487A(d) of the HEA), the statute requires
multiple disbursements of loan proceeds for single-term loans. See
Sec. 428G(a) of the HEA. These regulations do not affect the
experimental site institutions that are exempt from this requirement.
The Secretary will take into consideration the commenter
recommendations in the context of HEA reauthorization.
Changes: None.
Comments: In proposed 34 CFR 682.604(c)(7)(ii), commenters
suggested replacing the proposed phrase, ``academic coursework'' with
the term ``credit hours'' because, the commenters stated, this phrase
is more specific.
Discussion: The Secretary has used the phrase ``academic
coursework'' rather than credit hours in 34 CFR 682.604(c)(7)(ii) and
in 34 CFR 685.301(b)(5)(ii) for two reasons. First, this phrase
provides institutions with flexibility to measure progress by other
means than credit hours. If they choose to do so, they can make this
determination based on credit hours completed; however, they can also
use other measures such as lessons completed in those circumstances
where the midpoint of a student's academic program does not coincide
with the midpoint in credit hours earned. In addition, some
institutions do not allow students to earn credits until the end of a
program or academic year. Under this proposed provision, even if the
institution does not award credit hours until the end of the
[[Page 60585]]
program or academic year, the student could receive the second loan
disbursement according to another measure of progress. Also this policy
is consistent with the similar circumstances addressed in
Sec. 668.4(b)(3).
Changes: None.
Comments: Several institutions advocated allowing unequal loan
disbursements, noting that while the proposed regulations provide that
loans must be disbursed in equal installments, educational costs are
often unequal across terms.
One institution currently addresses the problem of unequal costs by
scheduling three disbursements for one type of loan (e.g., subsidized)
and two disbursements for another (e.g., unsubsidized) for the same
student and notes that this practice would not be permitted according
to the proposed regulations.
Another institution noted that the Direct Loan software allows
institutions to make unequal disbursements and argued that unequal
disbursements also be permitted in the FFEL Program.
One institution expressed concern that the equal disbursement
requirements would reduce the amount the student would receive in
situations where at least one-half the loan period has elapsed prior to
the first disbursement so that the first disbursement is combined with
a subsequent disbursement.
Discussion: The Secretary notes that the statute requires equal
disbursements of loan proceeds. See Sec. 428G(c)(3) of the HEA. The
Secretary will take into consideration allowing unequal disbursements
in the context of HEA reauthorization. With regard to the comment from
the institution that schedules subsidized and unsubsidized loan
disbursements differently in order to meet the student's unequal costs,
this practice goes against the statutory intent that all loans for a
student be disbursed in equal installments. Similarly, the Secretary
reminds Direct Loan institutions that, even though the software for the
Direct Loan program does not reject unequal disbursements, the statute
prohibits Direct Loan institutions from scheduling unequal
disbursements.
Finally, with regard to the question of whether the equal
disbursement requirements would reduce the amount the student would
receive in situations where at least one-half the loan period has
elapsed prior to the first disbursement, the Secretary assures the
commenter that this provision does not reduce the amount the student
would receive. For example, in a quarter situation where a disbursement
is not made until after the start of the second quarter, the
institution could combine the first and second disbursement in one
transaction. Subsequently, the institution could disburse the final
installment in the third quarter. In this situation, statute and
regulations permit the combined first and second disbursements to
exceed the amount of the final disbursement.
Changes: None.
Subpart B--Standards for Participation in Title IV, HEA Programs
Section 668.16 Standards of Administrative Capability
Electronic Processes (Sec. 668.16(o))
Comments: Most commenters supported the concept of moving to
electronic processes in the delivery of title IV, HEA program
assistance. Many commenters recognized and supported the need for
institutions to use electronic processes in order to move to a Project
EASI delivery system and encouraged the Secretary to use the best
available electronic services. One association commenter stated that
the Secretary must be aggressive with regard to institutions'
capabilities to participate in information sharing via electronic
means. Another commenter stated that mandating the use of electronic
processes would enhance the level of student services at institutions.
Another commenter supported this provision because the commenter
believed it was essential to achieving Project EASI's goal of providing
comprehensive, current student information.
Discussion: The Secretary very much appreciates, and thanks the
financial aid community for, its support in moving to greater use of
electronic processes and its contributions to developing and
implementing Project EASI. The Secretary believes that, by working with
the community in these areas, we will be able to improve services for
students and institutions.
Changes: None.
Comments: Several commenters believed that the Secretary proposed
to restrict institutions to using electronic services provided only by
the Secretary. Some commenters were concerned that, while the preamble
to the notice of proposed rulemaking indicated that an institution
would be able to use software developed by the Secretary or software
developed by the institution or its vendor, the proposed regulations
only referenced electronic services provided by the Secretary. Other
commenters were concerned that the proposed regulations would not allow
an institution to be considered administratively capable if it
participated in electronic services through an agency such as the
Pennsylvania Higher Education Assistance Authority. Another commenter
was concerned that an institution would be unable to comply with the
proposed regulations through a third-party servicer. The commenters
suggested that the Secretary should clarify this provision.
Discussion: As some of the commenters noted, it is not the
Secretary's intent to restrict institutions to using only software and
services provided by the Secretary. Nor is it the Secretary's intent to
restrict the ability of institutions to comply with the requirement by
employing third-party servicers. The Secretary agrees with the
commenters that the provision needs clarification since it is his
intent that institutions have the ability to participate in electronic
processes such as electronic data exchange and the BBS, but that
institutions should have available options to achieve compliance other
than by using software or products that the Secretary provides.
Changes: The Secretary has revised the reference to ``electronic
services'' in Sec. 668.16(o) to refer instead to ``electronic
processes.''
Comments: One commenter stated that the Federal Register notice
announcing the electronic processes in which an institution must
participate should address not only the electronic processes or
functionalities an institution must be capable of performing but should
include other information such as optimal system configurations and
network configurations.
Discussion: The Secretary very much appreciates the commenter's
concerns but does not believe that the addition of this information
would be appropriate for publication in the Federal Register. The
Secretary believes that it is more appropriate to include this type of
information in the other publications that he provides that include
such items as systems specifications and record layouts.
Changes: None.
Comments: Many commenters were concerned that the Secretary should
provide institutions reasonable notice and timeframes to implement
these processes. The commenters were concerned that some institutions
may not immediately have the necessary resources to participate in
electronic processes. The commenters believed that additional training
of staff would be needed. One commenter suggested that notice was
needed by December 1 prior to an award year. Another commenter
[[Page 60586]]
also indicated that the Secretary should provide as much advanced
notice as possible of the electronic processes which the Secretary
expects to require over the next several years so that institutions may
include these expectations in securing the necessary resources.
Discussion: The Secretary agrees with the commenters concern that
institutions be provided advanced notice of electronic processes in
which they are expected to participate. The Secretary expects to
provide such notice as soon as the information is available. Under the
current systems development cycles by award year, the Secretary expects
to be able to provide notice before December 1 prior to the award year.
To the extent it is possible to provide a notice covering subsequent
award years, the Secretary will provide such notice.
With respect to training, the Secretary agrees that additional
training is needed for institutional personnel and expects to announce
shortly additional training opportunities that will be available in all
10 regional training facilities.
Changes: None.
Comments: Some commenters believed that the Secretary should use
open networks such as the Internet to provide electronic interfaces
rather than rely on the Title IV Wide Area Network. One commenter was
concerned that security was not adequate on the Internet. Another
commenter believed that it would be beneficial for all institutions to
use the Title IV Wide Area Network but that it should be recommended,
instead of being required, during the 1997-98 award year. Another
commenter believed institutions should be expected to participate in
the Title IV Wide Area Network, to receive Institutional Student
Information Records (ISIRs), and to participate in the National Student
Loan Data System. The commenter questioned whether the Student
Financial Assistance Bulletin Board System (BBS) was duplicated in
other forums.
Discussion: The Secretary is currently exploring issues related to
the use of open systems like the Internet including such issues as
security, authentication, and reliability. The Secretary's primary
concern, however, is that institutions begin to use electronic
processes for delivering title IV, HEA program assistance regardless of
the network configurations that may be available to implement a
particular electronic process. For example, the BBS is currently
available through two electronic networks: the Title IV Wide Area
Network and the Internet (the Internet address is: http://sfa.ed.gov).
If the Secretary requires institutions to be able to access the BBS,
using either electronic network would satisfy the requirement.
Comments: A few commenters proposed that the Secretary provide
additional administrative cost allowances to allow institutions to meet
the requirement to use electronic processes. One commenter was
concerned that the proposed regulations were an unfunded mandate to the
States. The commenter believed that the administrative cost allowance
was not sufficient to cover the costs to institutions of using
electronic services.
Discussion: The current administrative cost allowances are set by
specific statutory authorizations and appropriations and the Secretary,
therefore, is unable to provide a specific administrative cost
allowance for funding institutions using electronic processes. The
Secretary will take into consideration these comments while developing
proposals in the context of HEA reauthorization.
The Secretary does not agree with the comment that these
requirements are an unfunded mandate. Institutions are provided with
administrative cost allowances to administer the title IV, HEA
programs, and these funds may be used by the institution for funding
institutional use of electronic processes that the Secretary does not
expect to have significant cost implications.
Comments: Two commenters were concerned about the meaning of the
phrase ``at no substantial charge to the institution.'' One commenter
believed that the Secretary should absorb all the costs of the central
processor's services.
Discussion: The Secretary considers an electronic process to be
offered to an institution at no substantial charge if the process is
provided for free or there are generally no additional charges for
normal business activity. For example, an institution may make regular
phone calls to a customer service office but, if an institution makes
excessive phone calls, the Secretary believes it is appropriate to
charge for use beyond that normally needed even though the Secretary is
requiring institutions to use that process.
Changes: None.
Comments: One commenter questioned the benefit of using electronic
processes and requested that institutions be able to receive exemptions
from this requirement. Another commenter was concerned that the
Secretary needed to develop an alternative, cost-effective option for
small institutions.
Discussion: As the Secretary noted in the preamble discussion of
this requirement in the proposed regulations, the Secretary believes
that the use of electronic services by institutions is essential to
achieving better services for students and institutions, the Project
EASI goal of an integrated student aid delivery system for students and
institutions, and necessary improvements in program accountability. As
a result, the Secretary does not expect to provide for any alternative
processes such as using paper documents. With respect to small
institutions, the Secretary notes that a number of options are
available to, and are currently being used by, small institutions.
These institutions either are using the services and free products
provided by the Department; or are using the products and services of
private vendors, third-party servicers; or are using the Internet
directly.
Changes: None.
Comments: One commenter opposed the proposed regulations because
the commenter thought that institutions, that the commenter believed
offered quality educational programs, would have difficulty meeting the
requirement. Another commenter opposed the proposed regulations because
the commenter believed that they would result in the elimination of all
small institutions because they rely on Federal information.
Discussion: The Secretary recognizes that some institutions may
have difficulty in meeting the requirement. The Secretary does not
believe that it need result in the elimination of any small
institutions because small institutions are already participating in
electronic processes directly or are participating through third-party
servicers.
Changes: None.
Comments: Two other commenters questioned whether an institution's
electronic capabilities indicated that an institution was
administratively capable.
Discussion: The Secretary believes that an institution's
participation in electronic processes are essential to its
demonstrating administrative capability. The Secretary believes that
institutional use of electronics will result in business processes that
improve service to, and reduce burden on, students and will result in
improved institutional administration and accountability.
Changes: None.
Subpart K--Cash Management
Section 668.161 Scope and Purpose
Comments: One commenter, on behalf of student legal aid services
[[Page 60587]]
organizations, supported the Secretary's stated goals with regard to
the purpose of the cash management regulations, and specifically
appreciated the incorporation of the goal to minimize costs that accrue
to students under the title IV, HEA loan programs as proposed in
Sec. 668.161(a)(1)(iii).
One commenter on behalf of the lending community recommended that
the Secretary clarify in regulations that the cash management rules
under subpart K apply to a third-party servicer employed by the
institution to distinguish between other third-party servicers employed
by lenders and guaranty agencies.
A few commenters on behalf of the lending community expressed
concerns about proposed Sec. 668.161(a)(3)(iii) with regard to the use
of the term ``disburse'' to mean the same as deliver loan proceeds
under 34 CFR 682 of the FFEL Program regulations. These commenters were
worried that the distinction between the terms ``disburse'' and
``deliver'' would be eliminated in the FFEL Program regulations. The
commenters pointed out that under the FFEL Programs a lender or escrow
agent is the disbursing agent who disburses the funds to the
institution who, in turn, delivers the funds to the borrower and that
the distinction is important in determining interest that accrues to
the government and to borrowers. One commenter noted that current
provisions regarding restricted interest arose out of Negotiated
Rulemaking discussions. The commenter argued that the current
definition of disbursement in the FFEL program regulations allows the
lender to utilize a readily identifiable date for this purpose and that
the definition should be retained under the FFEL Program regulations.
Several commenters writing on behalf of the lending community
opined that because FFEL Program funds are provided by lenders, rather
than the Secretary, and unlike other title IV, HEA programs those funds
are private capital, FFEL Program funds are held in trust by the
institutions for the student beneficiaries, the lenders and the
Secretary, and the distinction should be noted in this section.
Discussion: The Secretary disagrees with the commenter who
suggested that Sec. 668.161(a)(2) be revised to distinguish between
third-party servicers employed by institutions and other third-party
servicers employed by lenders and guaranty agencies. The Student
Assistance General Provisions regulations govern institutions and their
third-party servicers. The rules that govern lenders, guaranty agencies
and their third-party servicers are found in 34 CFR 682 of the FFEL
Program regulations. Therefore, it is unnecessary to distinguish in
these regulations that the third-party servicers affected are those
employed by institutions.
With respect to the concerns raised regarding the use of the term
``disburse'' under subpart K to mean the same as ``deliver loan
proceeds'' under the FFEL Program regulations, the Secretary wishes to
clarify that this is not a change from current rules.
For the FFEL Programs, the Secretary is cognizant of the
distinction made in the HEA between a ``disbursement'' by a lender and
``delivering the proceeds of the loan'' by an institution to a
borrower. The definition of disburse under the FFEL Program regulations
remains unchanged for purposes of determining interest due. As
discussed previously in the cash management NPRM of September 29, 1994
(59 FR 49766-49773), the term disburse solely as used in subpart K,
corresponds to the concept of delivery of proceeds under the FFEL
Program regulations in order to prevent confusion by utilizing a single
term for all title IV, HEA programs to which certain rules and
timeframes under subpart K apply. In the most recent NPRM, the
Secretary merely relocated the explanation from the definitions
section, which was eliminated, to Sec. 668.161, Scope and purpose. The
Secretary will take into consideration this issue in the context of HEA
reauthorization.
The Secretary agrees with those commenters who suggested that a
distinction should be made between those funds provided by the
Secretary and those funds provided by lenders and guaranty agencies for
purposes of clarifying that an institution holds FFEL Program funds in
trust and may not use those funds for any unintended or unauthorized
purpose.
Changes: Section 668.161(b) is revised to clarify that FFEL Program
funds are held in trust by an institution for the intended student
beneficiaries, the lenders, the guaranty agencies, and the Secretary.
Comments: One commenter requested clarification concerning the
applicability of the provisions of these regulations to State
institutions in a State with an agreement between the State and the
U.S. Department of the Treasury (Treasury) under the Cash Management
Improvement Act of 1990 (CMIA). The commenter recommended that
provision for the CMIA agreements be incorporated into these
regulations.
Discussion: The Secretary agrees with the validity of the
commenter's concern regarding the applicability of the provisions of
these regulations to State institutions in a State with an agreement
with the Treasury under the CMIA. Such an agreement is uniquely
negotiated between the Treasury and the State and concerns requesting
and transferring funds between a State and the Treasury. Further, a
State's agreement with the Treasury is specific as to the federally
funded programs that are covered. For these reasons the Secretary does
not believe it is necessary or appropriate to incorporate specific
references to CMIA agreements into these regulations.
Changes: None.
Section 668.162 Requesting Funds
Just-In-Time Payment Method (Sec. 668.162(c))
Comments: While most commenters understood and supported the
Secretary's plans to transition the operations of the title IV, HEA
programs into an integrated delivery system and to improve program
accountability, many commenters expressed reservations about the
implementation of the just-in-time payment method.
Their reservations primarily were due to their perceptions that
there was a lack of specificity concerning operational features,
concerns regarding potential expenses and reporting burden, issues such
as the unpredictability of changes in student eligibility, and a belief
that the Secretary was addressing issues of fraud and abuse that should
be addressed through enforcement actions. Commenters were concerned
about whether there would be adequate Department staff and resources to
ensure that all requested funds would be sent to institutions within
adequate timeframes. Some commenters recommended that the Secretary
develop a pilot to provide adequate testing of the new payment method.
Commenters were also concerned that institutions would lose
flexibility under this payment method as opposed to the advance payment
method under which an institution may receive Federal funds without
providing information on the students for whom the funds are intended.
The commenters stated that financial aid offices are at their busiest
just before the start of classes, and the commenters believed that they
would be coping with an increase in reporting activity that would be
time-consuming and staff-intensive. Other commenters were concerned
that a student's funds might be held up due to processing problems;
thus, the student would be forced to take out a short-term loan, to
borrow from family or friends, or to withdraw from the institution.
[[Page 60588]]
Discussion: As the Secretary noted in the preamble to the NPRM, the
just-in-time payment method is a core element to creating the Project
EASI vision of a student-centered integrated student aid delivery
system. Providing student-level information for one or more programs in
a single process and using that same information to provide funds to
institutions is the basis for reengineering the delivery system and
reducing duplicative, uncoordinated, and unreconcilable systems. The
Secretary believes that using a just-in-time payment method in a
reengineered delivery system will result in improved business processes
and better management of the title IV, HEA programs and will improved
accountability at problem institutions. The Secretary recognizes and
very much appreciates the concerns that the commenters have expressed.
The Secretary believes that many of these concerns will be addressed in
the design of the system that will support the just-in-time payment
method. The Secretary understands that further work is needed on the
development of the system before the system can be implemented, and the
Secretary plans to further involve institutions and other participants
in the Title IV, HEA Programs in the development of the system. In
addition, when the system is further developed, the Secretary expects
to use this payment method only at institutions that volunteer to
participate in it. Moreover, the Secretary will permit those
institutions to choose the particular Title IV, HEA programs to run
under the just-in-time method. Thus, for example, an institution may
volunteer to participate in the just-in-time method for the Pell Grant
program only and continue to receive funds under the advance system of
payment for the Direct Loan and campus-based programs.
Changes: None.
Section 668.163 Maintaining and Accounting for Funds
Comments: A number of commenters supported the Secretary's proposal
to eliminate the requirement under Sec. 682.207(b) that an institution
maintain a separate bank account for FFEL Program funds. One commenter
expressed concern that not requiring a separate account may provide an
opportunity for institutions to abuse title IV, HEA program funds.
Discussion: The Secretary appreciates the commenters support of
this proposal. The Secretary continues to believe that there is no
longer any compelling reason to require a separate account for FFEL
Program funds provided by EFT or master check. The Secretary further
believes that, by requiring an institution to comply with the bank
account notification requirements and the accounting and financial
records prescribed in this section, he will greatly reduce the
opportunity for institutions to abuse Federal funds.
Changes: None.
Section 668.164 Disbursing Funds
Definition, Disbursement
Comments: Several commenters requested that the Secretary clarify
the discussion in the preamble that ``a disbursement occurs when an
institution makes the benefits of title IV, HEA program funds
constructively available to students.'' These commenters maintained
that it is difficult, if not impossible, to determine the difference
between funds made constructively available and bill preparation that
includes crediting the student's account. The commenters argued that
since institutions consider a student's title IV, HEA program awards as
a payment toward tuition and fee charges, students realize the benefits
of their title IV, HEA program awards when institutions allow them to
enroll for and attend classes even though institutions have not yet
received Federal funds for those awards.
A few other commenters suggested that the preamble discussion that
``the Secretary does not consider that a disbursement is made if,
solely for the purpose of preparing a bill for a student, an
institution must credit the student's account at the institution'' be
codified in final regulations to avoid any misunderstanding between the
preamble and the regulations.
Many commenters representing institutions and higher education
associations objected to the provision that a title IV, HEA program
disbursement occurs on the date that an institution credits a student's
account or pays the student or parent directly with institutional funds
used in advance of receiving title IV, HEA program funds. Some of these
commenters regarded this provision as an intrusion in the way that
institutions bill students and post payments to student accounts and
questioned whether the Secretary has the authority to regulate the use
of institutional funds in this manner. Other commenters believed that
an institution should have a choice in determining whether to use
institutional funds in advance of title IV, HEA program funds since the
institution is solely liable for any funds advanced. In addition, the
commenters stated that at many institutions tuition is generally billed
and payable long before acceptable disbursement dates for title IV, HEA
program purposes. At these institutions, students are not considered to
be ``officially enrolled'' until tuition is paid in cash or by
institutional credit, with such payments or credits occurring many
months prior to the start of classes. Another commenter believed that
the use of institutional funds to credit a student's account should not
be held to the same requirements as a credit of actual title IV, HEA
program funds. This commenter, along with other commenters, noted that
in many cases the crediting of institutional funds is the result of a
``short-term loan'' from the institution to the student (e.g., to
enable the student to pay for off-campus housing) pending the
institution's receipt of title IV, HEA program funds and the subsequent
disbursement of those funds to the student. Still another commenter
maintained that the ability to credit a student's account with
institutional funds prior to the receipt of title IV, HEA program funds
offers important administrative flexibility to institutions to manage
workload and was adamant in stating that until title IV, HEA program
funds are utilized no disbursement of any Federal funds has taken
place. One commenter recommended that the Secretary include in the
final regulations the exception to the definition of disbursement found
in the preamble discussion of the proposed regulations concerning
institutions that, in order to create a bill, must credit the student's
account on the general ledger. The commenter was referring to the
discussion in the preamble of the proposed regulations where the
Secretary noted that he does not consider that a disbursement is made
if, solely for the purpose of preparing a bill for a student, an
institution must credit the student's account at the institution by
making a general ledger entry.
Discussion: The Secretary appreciates the commenters' concerns
regarding the proposed definition of ``disbursement'' and the apparent
ambiguities surrounding that term both in the proposed regulation
itself and in the preamble. The Secretary hopes to clarify that term in
the following discussion and in a revision to the final regulations.
It is the Secretary's view that a disbursement of Title IV, HEA
program funds occurs when an institution credits a student's account or
pays a student directly, and indicates that the source of that payment
is a Title IV, HEA program. Thus, if an institution credits a student's
account at the institution with $1,200 and indicates on the account
that the $1,200 credit is a
[[Page 60589]]
Federal Pell Grant award, the institution has made a Federal Pell Grant
disbursement regardless of whether the institution used its own funds
or federal funds for that credit.
On the other hand, if the institution simply makes a memo entry for
billing purposes or credits a student's account and does not identify
the credit as a credit for a title IV, HEA program, the Secretary
considers that the institution did not make a Title IV, HEA program
disbursement. For example, if the ledger entry calls the credit an
``estimated Federal Pell Grant,'' the Secretary does not consider the
institution to have made a Federal Pell Grant disbursement.
Consequently, it is the institution that controls whether a payment to
a student is a Title IV, HEA program payment.
The Secretary understands that there are institutions that are
required by State or local law to credit a student's tuition and fee
account with Title IV, HEA program funds in order to send the student a
tuition and fee bill. In addition the Secretary believes that there are
other institutions that, because of accounting and billing systems
constraints, also credit students' accounts in order to generate
billing statements. These institutions may send these bills far in
advance of the first date that an institution can disburse Title IV,
HEA program funds under these rules. The Secretary further understands
that these institutions credit a student's tuition and fee account with
Title IV, HEA program funds but do not actually take Federal funds to
satisfy these credits until they are permitted to do so under the cash
management rules.
The Secretary has amended the definition of the term
``disbursement'' to accommodate these institutions. Under the amended
definition, the Secretary will not recognize that a disbursement of
Title IV, HEA program funds takes place until the first day that such a
disbursement can take place, 10 days before the first day classes, or
30 days after the first day of classes for FFEL or Direct Loan proceeds
for a first year first time borrower.
The Secretary acknowledges that some institutions may need to make
administrative or systems changes to comply with these new
requirements. Therefore, the Secretary may not take an adverse action
against an institution that fails to satisfy the requirements during
the 1997-98 award year if the Secretary determines that the institution
had insufficient time to make the necessary changes.
Changes: The Secretary is revising the definition ``disbursement''
in Sec. 668.164(a) to provide that if an institution credits a
student's institutional account with title IV HEA program funds earlier
permitted under the provisions of Sec. 668.164 solely for the purpose
of preparing a tuition and fee bill for that student, the Secretary
will recognize that disbursement as being made on the first day that it
would be permitted to be made under that section.
Direct Loan Disbursements (Sec. 668.164(d)(3))
Comments: Several commenters questioned the significance of the
provision that requires that institutions disbursing Direct Loans to
student accounts must first credit Direct Loan funds to the student's
account to pay for outstanding current and authorized charges. These
commenters asked why the Secretary does not require Federal Perkins
Loan Program and FFEL Program loans disbursed to student accounts to be
applied first to the student's account to cover outstanding current and
authorized charges and suggested that the Secretary may be moving away
from parity between the Direct Loan and FFEL programs.
Discussion: This provision is based on the statutory requirement
that Direct Loans be applied to the student's account for tuition and
fees, and in the case of institutionally owned housing, to room and
board. See Sec. 455(j)(1) of the HEA. This requirement does not result
in any significant inequity between the FFEL and Direct Loan programs.
Rather, this provision simply promotes the use of EFT to student
accounts as a means of disbursing to borrowers. This statutory
requirement only applies to schools that actually disburse funds
directly to student accounts. Furthermore, this statutory requirement
does not require that Direct Loan funds must be credited to the
student's account prior to other funds, i.e., grants and other loans.
This provision simply requires that if there is any outstanding balance
for current outstanding or authorized charges on the student's account
when Direct Loan funds are disbursed to that account, Direct Loan funds
must be applied to those outstanding charges before any Direct Loan
funds are disbursed directly to the borrower.
Changes: None.
Early Disbursements (Sec. 668.164(f))
Comments: One commenter was concerned about the requirement that an
institution may disburse title IV, HEA program funds on the later of 10
days before the first day of class or the end of the prior payment
period in which the student received title IV, HEA program funds. The
commenter believed that this requirement would delay disbursements
until after classes would have started in instances where the time
between payment periods is less than 10 days. The commenter believed,
for example, that if only seven days separated two quarters, the
disbursement for the second payment period would be delayed until the
third day of classes in the second quarter.
Two other commenters were concerned that the requirements were a
change from current requirements for educational programs using
academic terms and credit hours. For these educational programs, the
commenters understood the current requirements to allow an institution
to make a disbursement up to 10 days prior to the subsequent term. For
example, one of these commenters noted that, when one term ends on
Friday and the next term begins on a Monday, the current regulations
(34 CFR 668.165(c)) provide that an institution may make a disbursement
up to 10 days prior to the Monday on which the subsequent term begins.
Discussion: In general, under proposed Sec. 668.164(f), an
institution would be able to disburse funds for a subsequent payment
period the later of (1) 10 days before the first day of classes of the
payment period, or (2) the date the student completes the previous
payment period for which he or she receives title IV, HEA program
funds. Under the proposed regulations, in the first commenter's
example, the institution would be able to make a disbursement for the
second quarter up to seven days prior to the beginning of the second
quarter instead of three days into the second quarter as the commenter
believed.
The Secretary agrees with the comments of the other two commenters
that the proposed regulations would be a change in the requirements.
The Secretary intended to coordinate the requirements for early
disbursements with the implementation of the disbursement of all title
IV, HEA assistance by payment periods. The Secretary did not intend to
change the current policy for educational programs offered using
semesters, trimesters, or quarters that allows an institution to
disburse title IV, HEA assistance up to 10 days prior to the beginning
of a payment period regardless of the ending date of the prior payment
period.
Changes: The Secretary has revised the requirements in
Sec. 668.164(f) to provide that, in the case of an educational program
offered using semesters, trimesters, or quarters, an institution may
disburse title IV, HEA program assistance up to 10 days prior to the
beginning of any payment period.
[[Page 60590]]
This revision is also in accordance with the disbursement requirements
for the FFEL and Direct Loan programs for educational programs that do
not use semesters, trimesters or quarters.
Late Disbursements (Sec. 668.164(g))
Comments: Several commenters expressed support for the proposal to
consolidate the late disbursement requirements into the cash management
subpart of the regulations. They believed that this proposal would
promote clarity and that the uniformity will enhance program
efficiency.
One commenter believed that a conflict has been created in the
Secretary's effort to consolidate the Federal Pell Grant Program rules
with the other title IV, HEA program's late disbursement rules in
Sec. 668.164(g). The commenter stated that the proposed provision in
paragraph (g)(2) gives an institution discretion to make late
disbursement payments to a student for up to 90 days after the
student's last date of attendance to pay for educational costs that the
student incurred while enrolled. The commenter stated that Sec. 690.78
of the current Federal Pell Grant regulations requires the institution
to disburse funds to a student if the student requests those funds
within 15 days after the last date of his or her enrollment ends in the
award year. If the student has not picked up the payment at the end of
the 15-day period, then he or she forfeits the right to it. However, an
institution could use its discretion to disburse Federal Pell Grant
funds after the 15th day.
Discussion: The Secretary appreciates the commenters' support for
the proposal to consolidate the late disbursement provisions into the
cash management subpart of the regulations.
The Secretary does not agree with the commenter that there is a
conflict between the provisions of Sec. 690.78 and the proposed rule in
Sec. 668.164(g) because they each deal with a different matter. Section
690.78 deals with the situation where an institution pays an eligible
student by check but the student does not pick up the check. That
section indicates that the student forfeits his or her right to the
check after a certain time. Section 668.164(g)(2) deals with the
situation where a student becomes ineligible before the institution
makes a payment to that student and the circumstances under which the
institution can make that payment anyway.
Changes: None.
Comments: One commenter representing a guaranty agency objected to
the proposal that in order to make a late payment of an FFEL Program
loan, before the date the student became ineligible, an institution
must have received a SAR from the student or an ISIR from the
Secretary, and must have been certified the student's loan application.
The commenter indicated that this proposal would penalize students due
to the institution's failure or inability to drawdown ISIRs before a
student became ineligible. The commenter believed that if the student
is otherwise eligible and the institution draws down (or obtains) the
student's ISIR or SAR prior to the disbursement of funds, the
institution should be able to deliver the loan to the student. The same
commenter also indicated that the certification of a loan application
after the date on which the borrower becomes ineligible does not impact
program integrity since the institution would still be required to
certify a cost of attendance which only covers costs incurred by the
student during the period when the student was eligible.
One commenter questioned why there are different proposed rules for
loans and grants. The commenter objected to the proposal that
disbursement of loans may only be made if the student has graduated or
completed the loan period, while grant payments may be made regardless
of the student's status. The commenter believes that the loan
provisions should match the late disbursement provisions for Federal
Pell Grants.
Discussion: Under the FFEL Programs, the HEA requires that an
institution certify that a student is an eligible student at the time
it certifies the student's loan application. Therefore, the commenter's
suggestion is not legally supportable. In addition, the Secretary
believes that in order for an institution to make a late disbursement
to an ineligible student, that student must meet a core requirement: he
or she must have applied for those funds and the institution must
received an ISIR or an SAR with an official EFC before he or she became
ineligible.
The Secretary also disagrees with the commenter who believes the
late disbursement provisions should be identical for loans and Federal
Pell Grants. Under the HEA, an institution is prohibited from making a
late second disbursement of a Direct Loan or FFEL loan unless the
student had graduated or successfully completed the period of
enrollment for which the loan was intended. No legal restriction
applies to grants.
Changes: None.
Comments: Several commenters objected to the proposed requirement
that would make a written acceptance of a Federal Perkins Loan or an
FSEOG Program award from a student a condition for making a late
disbursement. The commenters noted that the Federal Perkins Loan and
FSEOG Program regulations do not require signed acceptance letters. The
commenters view this proposal, therefore, as unnecessarily burdensome.
Several commenters writing on behalf of guaranty agencies, student
loan servicers, and education associations believed that in paragraph
(g)(3) the proposed language, ``If a student qualifies for a late
disbursement . . .'', should be changed to read, ``If a borrower
qualifies for a late disbursement . . .''. The commenters stated that
the current proposed language using the word ``student'' restricts the
approval of late disbursements to student borrowers, and fails to
account for PLUS loans made to parent borrowers who are eligible to
receive a late disbursement.
Discussion: The Secretary agrees with the commenter's objections
regarding late disbursements of a Federal Perkins Loan or an FSEOG
Program award and has made appropriate changes.
The Secretary also agrees with the commenters that the proposed
regulations restrict the approval of late disbursements to student
borrowers and fails to account for PLUS loans made to parent borrowers,
and will revise the section accordingly.
Changes: The Secretary revises paragraph (g) to remove the proposed
provision that would require an institution to have received from the
student an acceptance of the Federal Perkins Loan or an FSEOG Program
award before making a late disbursement. Instead the institution will
merely have to show that it awarded a student a loan or grant before
the student became ineligible.
The Secretary also revises paragraph (g) to allow for PLUS loans to
be disbursed under these same late disbursement provisions.
Comments: One commenter writing on behalf of a consumer law center
objected to the Secretary's discussion of documented educational costs
that student's incur before they become ineligible. The commenter
believed that the preamble statement leaves the impression that the
Department is creating a lesser standard of proof for institutional
charges. The commenter believed that this would permit institutions to
charge students with improper and inflated costs. For example, the
commenter was concerned that the preamble discussion would allow an
institution to charge students who have withdrawn after just two
[[Page 60591]]
weeks for all the term's books and supplies regardless of whether the
student received them or returned them. According to the commenter,
inflated add-on expenses have been a serious problem area with some
institutions, particularly those that require high-cost supplies and
that have their own book distribution and even publishing companies.
The commenter further questioned whether the Department intends to
sanction such overcharges. The commenter suggested that the preamble of
the final regulations specify that the individual student's alleged
costs must be documented, and that any policy the institution develops
must be based solely on books or supplies actually received by the
student and not returned to the institution. The commenter concluded by
suggesting that the preamble of the final regulations specify that such
policies developed by the institution must comply with pertinent State
law, if any, on the issue of permissible charges to students.
Discussion: The Secretary believes that the commenter misconstrued
the intent and effect of the Secretary's preamble discussion on this
matter. The Secretary sought only to expand the means by which an
institution might account for educational costs without the added
burden of requiring each student to keep a detailed expenditure
account. The preamble discussion did not address what the commenter was
concerned about, improper and inflated institutional charges.
It was not the Secretary's intent for that this discussion appear
to sanction unscrupulous practices. With regard to the commenters
suggestion that the preamble should state that institutional policies
on permissible charges to students must comply with State law since the
Secretary assumes that institutions must comply with applicable State
laws at all times.
Changes: None.
Comments: Many commenters writing on behalf of loan servicers,
guaranty agencies, education associations, and business officers
overwhelmingly supported the 90-day timeframe for making a late
disbursement after the date a student becomes ineligible. However,
these commenters were concerned about conflicting policies, such as the
60-day late disbursement timeframe in the current FFEL Program
regulations. The same commenters indicated that since funds are
disbursed by the lender and delivered by the institution, in some
instances, especially with check disbursements, a lender may meet the
90-day disbursement requirement but the institution could not deliver
the proceeds to the student borrower within the 90-day timeframe. These
commenters concluded by suggesting that the provision be revised to
reflect that late disbursements may be delivered by the institution
provided the lender disburses funds, or the institution draws down
funds, within 90 days after the date the student becomes ineligible.
Discussion: The Secretary agrees with the commenters that the 90-
day late disbursement timeframe should coincide with the current FFEL
Program regulations, and that corresponding changes are needed to
remove conflicting policies referenced in those regulations. Section
668.164(g) provides that if a student is eligible for a late
disbursement, the institution is permitted to make the late
disbursement within 90 days after the date the student becomes
ineligible. Contrary to the suggestion of the commenters, the Secretary
requires that the delivery of the FFEL Program loan proceeds to the
student (or parent) by the institution must be made within this 90 day
period. Therefore, a lender would have to make a disbursement to the
school that would provide sufficient time for the school to comply with
this requirement.
Changes: The Secretary revises the late disbursement provisions
found in 34 CFR 682.207 of the FFEL Program regulations to conform to
the changes in Sec. 668.164(g).
Section 668.165 Notices and Authorizations
Award Notice (Sec. 668.165(a)(1))
Comments: One commenter, writing on behalf of student legal aid
services organizations, strongly supported the proposed requirement
concerning notification by the institution of the amount of funds a
student could expect to receive under each title IV, HEA program and
how and when those funds would be disbursed. The commenter also
supported the proposal that, if those funds include Direct Loan or FFEL
Program funds, the notification indicate the amounts of subsidized
loans and the amount of unsubsidized loans. The commenter further noted
that there is apparently a proposal under review to eliminate a
question on the FFEL loan application that provides the applicant with
the opportunity to indicate whether he or she wishes to apply for a
subsidized or an unsubsidized loan. The commenter cautioned that the
notice requirement in Sec. 668.165(a) should not be used as a reason to
eliminate that question on the application.
A couple of commenters suggested that the notification requirement
regarding the amount of subsidized and unsubsidized loans duplicates
information provided by lenders.
Discussion: The Secretary would like to emphasize that the notice
requirement regarding the amount of subsidized and unsubsidized loans
is not intended to eliminate a borrower's right to choose whether to
apply for a subsidized or unsubsidized loan. As to the commenters
suggestion that this notice requirement may duplicate information
otherwise provided by lenders, the Secretary believes that it is useful
for an institution to provide a student with his or her total aid
package even though some of the information provided to the student
might be also provided by others at other times.
Changes: None.
Comments: One commenter was concerned that the institution may not
have definitive information regarding the amount and types of loans
that will be disbursed until the lender issues a disclosure notice. In
addition, the commenter cautioned that while institutions indicate when
a disbursement should be made, sometimes lenders do not adhere to these
dates, and students expect that whatever dates are given to them are
sacrosanct.
Another commenter, writing on behalf of the lending community,
suggested that this section be revised further to state that if the
amount of loan funds or subsidy type (i.e., subsidized or unsubsidized)
changes after the institution's initial notification, the institution
or its agent must notify the borrower within 30 days after the change.
Discussion: With respect to the comment that the institution may
not have definitive information regarding the amount and types of loans
that will be disbursed, the Secretary reminds institutions that they
are responsible for certifying, and thus requesting from the lender, a
specific type and amount of loan, or in the case of a Direct Loan of
originating a specific type and amount. However, the Secretary
understands that in some limited number of instances, the lender may
reduce the certified amount of the loan as a result of a borrower's
request or enforcement edits. The Secretary also understands that the
actual disbursement received from the lender might differ slightly from
what the institution expected because of loan fees and rounding
differences. Thus, the Secretary allows the information provided in
this notice to include the gross amount of the loan disbursement or a
close approximation of the net
[[Page 60592]]
disbursement amount. The Secretary considers that an institution meets
the notice requirement if it provided the best information it had.
With regard to the comment that some lenders do not adhere to the
disbursement dates requested by the institution, the Secretary reminds
both institutions and lenders that the FFEL Program regulations require
the lender to comply with the disbursement dates provided by the
institution, assuming that the requested dates meet all statutory and
regulatory requirements.
With respect to the suggestion that the notice requirement be
expanded to require an institution or its agent to notify a borrower
within 30 days regarding loan changes, the Secretary believes that it
is not necessary to proscribe specific timeframes for either the
initial notice or any required revisions.
Changes: None.
Comments: A few commenters agreed with the proposal to notify
students about PLUS funds. One commenter expressed concern about the
violation of the privacy of a parent borrower under the PLUS programs
when the notice is sent to the student.
Discussion: The Secretary believes that the student should be
informed of all title IV, HEA aid awarded to, or on their behalf. The
Secretary believes that right outweighs any privacy right a parent may
have with regard to a PLUS loan.
Changes: None.
Disbursement Notice (Sec. 668.165(a)(2))
Comments: Many commenters writing on behalf of business officers
and financial aid administrators disagreed with the proposed changes in
the notification requirements regarding the disbursement of Direct
Loan, Federal Perkins Loan Program, or FFEL Program funds that are
provided via EFT or master check. Several commenters disagreed that any
such notification should be required of institutions. These commenters
argued that student and parent borrowers are notified of loan amounts,
estimated disbursement dates, and their rights and responsibilities,
including those regarding the cancellation of loans, several times
during the application process by the institution, lenders, guaranty
agencies, or the Secretary. Many commenters felt that adequate
information was already provided to borrowers through award letters,
loan counseling, debt reduction efforts on behalf of the institution,
and other required notifications such as on the promissory note and in
terms and conditions publications.
A few commenters suggested that if additional information regarding
students' and parents' loan disbursements, rights, and responsibilities
needs to be disclosed to borrowers, the information should be provided
by lenders, included on the promissory notes, or in other consumer
disclosure notices already required. One commenter suggested the
notification be added to the award notice under paragraph (a)(1) of
this section. The commenters indicated that another notice would be
administratively burdensome, costly, and unnecessarily confusing to
students and parents. One commenter thought that the proposal was
contrary to President Clinton's directive to Federal agencies to reduce
regulatory and paperwork burden.
Discussion: The Secretary appreciates the detailed comments
submitted by all parties regarding the requirement that an institution
notify a student or parent borrower of the date and amount of Direct
Loan, FFEL, and Federal Perkins loan funds that are disbursed by
crediting the student's account at the institution. The Secretary
considers the initiation of an EFT of title IV, HEA program loan funds
to a student's or parent's bank account and the subsequent withdrawal
of funds from that account to pay for tuition and fees or other
authorized charges, to be the same as directly crediting the student's
account at the institution and therefore subject to these notification
requirements.
The Secretary wishes to emphasize that this notice requirement is
not new but is a continuation of existing requirements. The provision
reflects the Secretary's continuing view that a borrower is entitled to
be informed when his or her title IV loan funds are being used by the
institution to pay institutional charges thereby generally making the
borrower liable for those loan funds.
Changes: None.
Comments: Several commenters specifically opposed allowing a
student or parent to cancel a loan that had been disbursed, citing
increased administrative burden and inconvenience. Two commenters
argued that the cancellation notice is unnecessary, because an EFT
already requires an authorization and therefore, a borrower's right to
have funds delivered by check is protected, and the current rules
already require a notice to the borrower that loan funds have been
credited to his or her account. The commenters contended that the
proposed rule was designed to undermine the premise by which the loan
was requested. A few commenters suggested that students and parents
would ``game'' the system and misuse the federal loan programs as cash
flow assistance or short-term bridge loans pending receipt of other
funds with which they intend to pay their tuition, fees, room and
board.
Discussion: The Secretary believes that regardless of the manner in
which a loan is provided to an institution, and regardless of the way
the institution chooses to disburse that loan, the borrower should have
the opportunity to decline that loan at, or close to, the time the
funds are disbursed and the debt incurred. Since a borrower has this
opportunity if loans are disbursed in the form of checks, the Secretary
believes an alternative option should be available for EFT and master
check disbursements. The Secretary believes that the borrower's
authorization of an EFT transfer takes place too early in the loan
process to satisfy this consideration.
The Secretary disagrees with the commenters who suggested that this
requirement would be overly burdensome. The Secretary developed this
requirement with the existing notice system in mind. As a result, an
institution can piggyback on other required notices, it does not have
to send a separate notice. This matter is further discussed under
another series of comments.
With respect to the commenters who suggested that the notification
will lead to students and parents ``gaming'' the system and using
Federal funds as cash flow assistance, the Secretary disagrees that the
required notification will in any way influence whether a student or
parent would act in such a manner.
Changes: None.
Comments: Many commenters supported the notification requirement. A
handful of commenters indicated that their institutions grant
cancellation requests of a student or parent request even after the
loan has been disbursed. Several commenters writing on behalf of the
lending community expressed support of the cancellation provision
likening it to a ``right of recession'' period provided for under other
consumer loans.
Some commenters writing on behalf of financial aid administrators
expressed concern regarding how the cancellation provisions would
affect the requirement that a title IV, HEA credit balance must be paid
within 14 days after the first day of classes or within 14 days after
the date on which the credit balance occurs, whichever is later. The
commenters thought there would be a conflict between the 14-day credit
balance rule and the 14-day loan
[[Page 60593]]
cancellation provision and that institutions would be required to
cancel a loan or loan disbursement by returning institutional funds to
cover a loan when all or a portion of the loan was already paid to the
student or parent. The commenters concluded that the institution would
have to then bill the student or parent for those funds.
A few commenters writing on behalf of financial aid administrators
were concerned about how the 14-day cancellation provision would affect
institutional refunds as required under Sec. 668.22. One commenter
contended that the cancellation provision ignored an institution's
right to retain title IV, HEA program funds earned by the institution
under refund regulations. This commenter argued that if a borrower
decided to withdraw and cancel a loan, the institution may be denied
that portion of the loan to which it may be entitled under its refund
policy. It would then be required to bill the student for the unpaid
amount of the tuition and fees to which the institution was entitled.
Discussion: The Secretary appreciates the support of the commenters
for this provision.
The Secretary disagrees with the commenters regarding any conflict
between the loan cancellation provisions and the credit balance
provisions. When a borrower exercises his or her right to request the
cancellation of a loan or loan disbursement, the borrower can only
request that the institution cancel and return to the lender those loan
funds that the institution used to pay institutional charges or is
still holding on behalf of the borrower. Thus, if an institution
released title IV, HEA program loan funds to the student or parent as
part of a credit balance and then received a request to cancel the
loan, it would not be required to return those funds previously
released to the student or parent.
The Secretary agrees with the commenters who pointed out that the
cancellation provisions may have an impact on an institutional refund
under Sec. 668.22. The Secretary reminds the commenters that the refund
requirements determine the unearned portion of the actual charges for
the period of enrollment for which a student has been charged, not the
source from which the institution earns funds. The determination of the
amount of aid received by, or on behalf of, the student takes place
before a refund is calculated. If students or parents avail themselves
of the cancellation provision, a refund calculation may reflect greater
unpaid charges than would have existed if the loan had not been
cancelled. The Secretary points out that, contrary to the commenter's
assertion, there is no ``portion of the loan to which it (the
institution) may be entitled under its refund policy'' when a student
withdraws.
The institution, after returning the requested loan funds to the
lender, would simply calculate the refund without consideration of the
cancelled loan, much as it would do if the loan had never been
disbursed or the student refused to accept a late disbursement. Any
time a refund calculation establishes unpaid charges to which the
institution is entitled that have not been paid by another source, the
institution may bill the student for the unpaid amount. The Secretary
assumes that the student who requested the loan cancellation understood
the implications of that request and its impact on remaining debt to
the institution.
Changes: None.
Comments: A commenter writing on behalf of student legal services
organizations supported the cancellation provision but suggested that
the Secretary include language in the regulations that allows a student
or parent to refuse a loan or loan disbursement in whole or in part. A
significant number of the commenters agreed with the Secretary that
student and parent borrowers should be informed of their rights to
cancel a loan or loan disbursement, but disagreed with the proposed
timeframe within which the institution would be required to notify the
student or parent borrower. The commenters said the timeframe was too
short, and in many cases would require a completely separate notice to
be sent out by the institution. Most commenters suggested that the
timeframe be extended from the 20-day window between 10 days before the
disbursement and 10 days after the disbursement, to a timeframe that
allows for the notice to be easily included in monthly statements
already prepared and issued by the institutions. These commenters cited
increased administrative burden and the cost of systemic changes for an
additional notice, which would ultimately be passed on to the students,
as reasons to extend the timeframe. Other commenters contended that
such a narrow timeframe in combination with the few number of students
or parents who would take advantage of the cancellation provision would
increase administrative burden on the institutions without providing
much, if any, additional benefit.
A few commenters were concerned that due to the proposed changes in
the definition of disbursement under Sec. 668.164, the 10-day timeframe
on either side of the disbursement would be difficult to determine. One
commenter suggested that the beginning date of the notification
timeframe be pushed back at least to 15 days prior to the first day of
a payment period to allow a cancellation to be made before the
institution might need to process a refund. At least one commenter
suggested that there be no required timeframe; that the institution be
provided flexibility in determining when to notify students and
parents.
Discussion: The Secretary agrees with the commenter that a borrower
should be allowed to cancel all or a portion of his or her loan. With
regard to the number of thoughtful comments provided concerning the
timeframes proposed for the notification by the institution to the
borrower, the Secretary is persuaded that a change is necessary.
Therefore, the Secretary is expanding the timeframe from a 20-day
window to a 60-day window. Institutions will be required to provide the
notice to the borrower by the institution no earlier than 30 days
before the disbursement of the loan funds and no later than 30 days
after the disbursement. The Secretary believes that this 60-day window
will provide sufficient flexibility for institutions to utilize
existing systems and processes to provide information to borrowers that
a loan debt has been, or is about to be incurred and of the right of
the borrower to request that the debt be cancelled.
However, in order to ensure that the borrower has sufficient time
to exercise his or her cancellation rights, the Secretary is also
modifying the proposed timeframe placed on the borrower with regard to
how quickly he or she must notify the institution of the request to
cancel all or a part of the loan. The institution must honor such a
request from the borrower if it is received by the institution no later
than 14 calendar days from the day the institution sent the notice to
the borrower, or the first day of classes for the student, whichever is
later. This extension up to the first day of classes will allow the
borrower who receives the required notice 30 or 40 days before the
beginning of classes (early disbursement allowed 10 days before the
first day of classes of a payment period) the opportunity to consider
other funding options and request the cancellation before incurring the
obligation.
The Secretary notes that an institution is free to agree to a
borrower's request
[[Page 60594]]
for loan cancellation after the timeframe established by this rule.
Changes: The notice requirements in Sec. 668.165(a)(2)(ii) are
amended to allow a student or parent to cancel all or a portion of a
loan or loan disbursement. The timeframe under Sec. 668.165(a)(3)(i) is
amended to allow the institution to provide the required notice no
earlier than 30 days before, and no later than 30 days after, the date
the institution has disbursed, or will disburse loan funds. The
timeframe during which a student or parent may request a loan
cancellation is amended to provide that the student or parent has a
minimum of 14 days from the date the notice was sent by the institution
to request a cancellation. If the notice is sent out prior to the first
day of classes the student or parent has 14 days or until the first day
of classes to request a cancellation, whichever is longer.
Comments: A few commenters wondered how this cancellation provision
would affect the rule that borrowers can have a loan cancelled within
120 days of the disbursement if the net amount (minus the guarantee and
insurance fees) of the loan is returned, and prepaid after 120 days if
the gross amount of the loan is returned (including the guarantee and
insurance fees).
A few commenters indicated that if the notice in Sec. 668.165(a)(2)
is provided electronically the institution should not be required to
request receipt of that notice. One commenter expressed doubt that such
an electronic notification could realistically be provided for the
majority of students and parents. The commenter contended that because
this opportunity could not be utilized by many institutions, that the
overall result is increased administrative burden on institutions. The
commenter urged the Secretary to retain the current notification
requirements.
Discussion: The 14-day cancellation provision does not eliminate or
change the provisions that allow a borrower to return the net amount of
an FFEL or Direct Loan program loan within 120 days or the gross amount
of the loan after 120 days.
The Secretary does not believe that because some institutions do
not have the capability to notify students or parents electronically
that other institutions should be prohibited from utilizing electronic
means of notification. In addition, the Secretary continues to believe
that a ``return receipt'' for notices sent electronically is necessary
in order to ensure that the electronic notification has been properly
transmitted.
Changes: None.
Comments: A commenter writing on behalf of student legal services
organizations suggested that the 14-day timeframe allowed for the
borrower to request cancellation of the loan be from the date the
notice is received by the student or parent rather than on the date the
notice was sent by the institution. The commenter also suggested that
the Secretary expand the timeframe within which a student or parent has
to request a loan or loan disbursement cancellation to at least 60 days
from receipt of the notice. The commenter noted that this period would
parallel the Federal Fair Credit Billing Act, (15 U.S.C. 1666), which
is part of the Consumer Protection Credit Act and provides credit card
consumers with 60 days from the receipt of a credit card bill to
dispute a charge. Under that Act the creditor must acknowledge a
complaint within 30 days, and within 90 days either correct the error
or explain why it cannot be corrected. The commenter argued that giving
the borrower adequate time from receipt of the notice within which to
ascertain whether or not a loan is truly necessary will foster sound
borrowing practices and ultimately reduce loan defaults.
Discussion: The Secretary chose to make the timeframe run from the
date of the institution's notice rather than from the date the student
received the notice to avoid having the institution incur the cost and
burden of sending such a notice return receipt requested. The Secretary
continues to believe that the cost and burden is to great and the
benefit to small to change that procedure. On the other hand, when the
Secretary was considering these timeframes, the Secretary allowed for
the relatively long timeframe of 14 days to take into account that the
time period ran from the date of the notice rather than the date the
borrower received the notice. In the event of a dispute, the
institution would bear the burden of proving when it sent the
questioned notice.
With regard to the reference to consumer credit, the Secretary
points out that, unlike the consumer credit example cited, the purpose
of this notice and cancellation provision is to acknowledge the fact
that student loan debt is incurred, not when the promissory note is
signed, but when the institution disburses the loan. These proposals
are not designed to allow the student to ``test'' the product and then
to make a determination that it is faulty and request that the debt be
cancelled.
Changes: None.
Comments: Commenters writing on behalf of financial aid
administrators believed that the institution should be able to let the
borrower know of the possible impact of cancellation at the time the
institution notifies the student or parent of his or her right to
cancel a loan or loan disbursement.
Discussion: The Secretary agrees and encourages institutions to
keep their students well-informed. However, the Secretary reminds
institutions that they must not, in their attempt to provide this
information, imply that the loan or loan disbursement cannot be
cancelled if the cancellation leaves a balance owed to the school.
Changes: None.
Student and Parent Authorizations (Sec. 668.165(b)(1))
Comments: One commenter, writing on behalf of student legal aid
services organization, asked for clarification of whether a student
must have a title IV, HEA credit balance in order to take advantage of
the authorization provisions in Sec. 668.165(b)(1)(iii). The commenter
also disagreed with the proposal to remove the current restriction
prohibiting an institution that fails to meet the financial
responsibility requirements from holding a student's or parent's title
IV, HEA credit balance funds, and the proposal to remove the language
stating that an institution, in holding title IV, HEA program funds, is
acting as a fiduciary for the benefit of the student or parent. The
commenter suggested that a paragraph be added to the regulations that
prohibits institutions placed on reimbursement from obtaining student
or parent authorizations, and further suggested that the Secretary
retains the authority to prohibit institutions from holding student's
or parent's title IV, HEA funds upon a determination of demonstrated
weakness in administrative or financial capability.
Discussion: In response to the commenter's question, the Secretary
wishes to make clear that a student or parent must have a title IV, HEA
credit balance under Sec. 668.164(e) in order to take advantage of the
authorization provisions under Sec. 668.165(b)(1)(iii).
The Secretary agrees in part with the commenter who suggested that
the Secretary prohibit an institution on the reimbursement payment
method from obtaining authorizations to hold a student's or parent's
title IV, HEA program funds. The Secretary believes that a fixed rule
may not be warranted under all circumstances. If the Secretary
determines that there is demonstrated weakness in administrative or
financial capability at an institution, the Secretary will take
appropriate administrative action against the
[[Page 60595]]
institution which may include preventing it from obtaining student and
parent authorizations under Sec. 668.165.
With regard to the request by the commenter that the regulations in
this section include a statement stating that the institution acts as a
fiduciary for the benefit of the student or parent, the commenter is
referred to Sec. 668.161(b).
Changes: Section 668.165(b)(1)(iii) has been amended to give the
Secretary discretion to prohibit institutions that have been placed on
the reimbursement payment method by the Secretary from holding student
funds in excess of allowable charges.
Comments: A few commenters questioned the necessity of a written
authorization from the student, or parent in the case of PLUS funds.
These commenters also questioned the necessity of obtaining written
authorizations to use title IV, HEA program funds to pay prior-year
charges, charges not included in the cost of attendance, and even
future charges. One commenter contended that students and parents
should be allowed to authorize the use of title IV, HEA credit balance
funds for future charges because the funds, especially loan funds, are
the student's or parent's which they must repay. The commenter argued
that there is no logic to the practice of letting credit balance funds
be used for prior-year charges but not for future-year costs. One
commenter argued that students already sign a statement saying they
will use aid for educational purposes. The same commenter questioned
why an institution would want to pay a student credit balance funds
when the student owes a debt to the institution from a previous year or
for other charges. The commenter contended that this requirement causes
more work for the institutions, confusion to students and parents, and
results in no positive benefits to anyone.
Discussion: The Secretary continues to believe that any student or
parent authorization under this section must be in writing. A student
or parent should have control over the title IV, HEA program funds he
or she receives for educational costs in excess of tuition and fees,
and the Secretary believes that demonstration of that control must be
documented. The Secretary notes that title IV, HEA program funds in
excess of current-year tuition and fee charges are the students' funds
and students are entitled to receive those funds within the specified
timeframe.
With regard to comments concerning the use of current year funds to
pay for prior-year charges or for future year charges, the HEA clearly
indicates that title IV, HEA program funds are awarded to students to
pay current year charges. In fact, the HEA requires that the student
sign a ``Statement of Educational Purpose'' that includes a promise
that any funds received will be used to meet educational expenses for
that year. However, in response to institutional comments about the
administrative problems of lingering prior-year charges on student
accounts, the Secretary has authorized a limited exception and permits
title IV, HEA program funds to be used to cover minor prior-year
charges, if the institution had obtained the written authorization of
the student to use those funds in that manner. There is no similar
justification for extending this exception to future years and
therefore this limited exception will not be extended into any future
year. Therefore, an institution must release to the student any current
year title IV funds remaining in the student's account at the end of an
award year (or loan period).
Changes: None.
Single Authorization Throughout Period During Which a Student is
Enrolled at the Institution (Sec. 668.165(b)(3))
Comments: Several commenters writing on behalf of financial aid
administrators and the lending community supported the Secretary's
proposal to eliminate the requirement that an institution must notify a
student or parent annually of the provisions contained in an
authorization previously provided to the institution. The commenters
appreciated the reduction in administrative burden placed on
institutions. One commenter supported the Secretary's efforts to
identify areas where regulatory relief can be granted and urged the
Secretary to continue these efforts. A few commenters suggested that
this single authorization for the entire period during which a student
is enrolled at the institution be extended to EFT authorizations.
One commenter on behalf of student legal aid services organizations
opposed the removal of the requirement for annual authorizations and
the annual extension procedures. The commenter indicated that keeping
the current system was important since cancellations or modifications
are not retroactive. The commenter argued that an annual notice
advising students of their right to directly receive title IV, HEA
credit balance funds is of minimal burden to institutions and is an
important piece of consumer information for students.
Discussion: The Secretary appreciates the commenters' support of
the proposal to eliminate an annual notice outlining authorizations
previously provided to the institution.
With regard to the commenters opposition to these changes, the
Secretary wishes to remind institutions that the initial authorization
provided by the student must clearly and conspicuously provide the
student with information about his or her right to cancel or modify the
authorization at any time, as well as the implications of each of the
authorized actions.
The Secretary will consider in the future the commenters'
suggestion that a single authorization be provided for EFT
transactions.
Changes: None.
Cancellation of a Student or Parent Authorization (Sec. 668.165(b)(4))
Comments: One commenter thought an institution should pay credit
balances three days rather than 14 days after the institution receives
a notice that a student or parent is cancelling an authorization to
hold title IV, HEA program funds.
Discussion: The Secretary appreciates the commenter's position that
title IV, HEA program funds should be paid timely. However, the
Secretary continues to believe that the 14-day timeframe strikes a
balance between institutions with check-writing authority that may
issue a check upon demand, and institutions that cannot provide these
funds as quickly because they must rely on a central office or State
agency to issue a check.
Changes: None.
Payment of Funds Authorized to be Held on Account at the Institution
(Sec. 668.165(b)(5))
Comments: Several commenters disagreed with the Secretary's
proposal to require an institution to pay any remaining balance on loan
funds by the end of the loan period for which those funds were
intended, and to pay any remaining balance on any other title IV, HEA
program funds by the end of the last payment period in the award year
for which those funds were intended, notwithstanding any authorization
obtained by the institution. One commenter writing on behalf of
business officers argued that institutions would be required to pay
funds to students contrary to the students' expressed wishes. The
commenters contended that once the title IV, HEA program funds are held
by the institution at the student's request, they have lost their
federal character. One commenter questioned the need for new rules to
govern an area that the commenter felt is sufficiently governed by
existing rules. One commenter
[[Page 60596]]
asserted that unless there is evidence of fraud or mismanagement, the
Secretary should allow institutions to establish an arrangement with
students and parents regarding funds that are not expended by the end
of the loan period or payment period. The commenter insisted that it is
unnecessary for the Secretary to micromanage this activity.
Discussion: As discussed in an earlier section of this preamble,
the Secretary believes that title IV, HEA program fund are provided for
a specific period of time, and the institution must provide remaining
title IV, HEA loan program funds to the student by the end of the loan
period and the remaining balance of other title IV, HEA program funds
by the end of the last payment period of the award year for which they
were intended.
Changes: None.
Section 668.167 FFEL Program Funds
Comments: Many commenters strongly objected to the Secretary's
proposal that an institution return to a lender any loan funds that the
institution does not disburse to eligible students within three
business days after the institution receives those funds, if those
funds are provided by the lender via EFT or master check. Some
commenters believe that such an abbreviated period for disbursement of
EFT and master check loan proceeds will adversely impact the entire
delivery system of the FFEL Programs and impede the ability to
administer title IV, HEA program funds in an efficient manner. A few
commenters supported the reduction in the timeframe to three business
days.
Some commenters cited the proposed regulatory requirement as
unreasonable, unrealistic, and not administratively feasible and noted
that most institutions disburse in three days if possible. The
commenters suggested that some situations may arise that require funds
to be held longer and that the Secretary should take those situations
into consideration in establishing a timeframe. Examples of such
situations include drop/add period changes, loan counseling
requirements, enrollment verification, history changes, reviewing
prior-term attendance to ensure credits were completed, receiving
financial transcripts, the provision of necessary information by
students, and late registration. Some commenters suggested that
corruption of a file, a data-match problem with the system, or
satisfying multiple system interfaces each could be a two- or three-day
process. A commenter noted that if an overaward occurs between the time
the Stafford loan application is processed and the funds arrive at the
institution, it will usually take more than three days to contact the
student to see if there are additional expenses to consider to reduce
the overaward or to see if there are other avenues to take to reduce/
eliminate the overaward. Some commenters expressed concern that
returning funds to the lender is typically a more difficult process
than receiving the funds. The commenters suggested that the opportunity
for errors in the entire delivery process are greatly increased when
funds are returned to the lender and must be reissued. They stated that
many lenders have a policy that once a disbursement is returned, the
loan is cancelled, thus requiring the student to submit a new loan
application. Some institutions expressed concern that their processing
systems are not as automated as some institutions and they must do a
recertification manually for each student. The institution's inability
to verify eligibility quickly would necessitate the return of the funds
to the lender and a need to request them again. The commenters believed
this would prove distressing to the students and lenders. Some
institutions noted that although they can accept funds electronically,
they manually check the loan amount against the awarded amount and
manually post to the financial aid account. Other commenters noted that
the act of sending funds back to the lenders requires a physical check,
because some lenders and financial institutions currently do not allow
the institution to return funds by EFT. They expressed concern that
this would require more paperwork and processing for both the financial
aid and business offices, taking time away from other EFTs which may
have arrived in the meantime.
The commenters generally believed that review of student files and
records that are needed for a successful distribution of title IV, HEA
program funds may take more than three business days. Some commenters
expressed concern that limited staff or staff unavailability might
render the institution unable to comply with the three-day window. In
some cases, the loss of a single staff person upsets the checks and
balances the institution works so diligently to create and would render
the institution unable to deliver EFT or master check funds to student
accounts in the prescribed timeframe. Some commenters expressed concern
that they do not have the capability to add staff, sophisticated
programming, or even new systems designed to accommodate the loan
delivery process within three business days.
Some commenters suggested that the computer capabilities and
institutional procedures vary so greatly from institution to
institution that such a restricted timeframe may cause some
institutions to consider reverting to the use of paper checks which is
far less efficient. A commenter expressed concern that lenders and
servicers often using the same guaranty agency provide EFT roster
information in different formats. The commenter stated that some
agencies send the information on diskettes, and some still send hard
copy rosters. Some commenters suggested that the disbursement roster,
though issued at the same time, may not arrive on the same date as the
EFT or master check. The commenters suggested that the use of
Commonline format will help, when it becomes more widespread. However,
they note that until that day, it is physically impossible for a
college with high student volume at peak periods to perform the
required edit checks and process loan disbursements within three
business days. The commenters suggested a range of anywhere from 10 to
30 days in the number of days for an institution to disburse loan funds
to a borrower. Most commenters suggested that a reasonable range would
be 7 to 15 business days. Some commenters suggested that even 30 days
was insufficient time to deliver loan proceeds. Some commenters
expressed concern that the NPRM language, as currently written, did not
clearly identify what is to be done within the proposed timeframes,
i.e., return the funds to the lender or disburse those funds to a
student or parent for a payment period. Some commenters suggested
technical corrections to Sec. 682.603 and Sec. 682.604 to conform to
the timeframes for delivering loan proceeds.
Discussion: Given the procedural and systemic changes necessary to
implement this provision, the Secretary recognizes that the proposed
change mandating that funds be returned to a lender within three
business days after the institution receives the funds may initially
place an unfair administrative burden on institutions. However, the
Secretary continues to believe that loan funds received via EFT and
master check should be disbursed within a shorter timeframe than
currently exists to minimize interest costs to both the Federal
taxpayer (subsidized loans) and to the borrower (unsubsidized loans).
Accordingly, the Secretary believes that the intent of this requirement
may best be accomplished by a phase-in. Thus, the Secretary has
determined that for
[[Page 60597]]
funds received from lenders during the period of July 1, 1997 through
June 30, 1999, and may take up to 10 business days to deliver those
funds to a student or return those funds to the lender. Starting on
July 1, 1999 that period is reduced to three business days. The
Secretary believes that the phase-in of this requirement will provide
institutions and FFEL lenders and guaranty agencies ample time to
implement procedural and systemic changes.
In addition, the Secretary has provided for exceptional
circumstances such as determining the midpoint in a clock-hour program
or academic year or the need for a student complete entrance
interviews.
The Secretary clarifies that if the institution does not disburse
the funds in accordance with the specified timeframe, the institution
is required to return those funds to the lender within 10 business days
after the last day the funds could have been disbursed. However, the
Secretary recognizes that in some instances, students may establish
eligibility to receive loan funds before loan funds are returned to the
lender. Therefore, the Secretary clarifies that if a student becomes
eligible for the loan funds during the 10 business day period in which
the institution is processing the return of the loan proceeds and the
institution has not yet returned those funds to the lender, the
institution may deliver the funds to the student.
The Secretary also notes that suggested technical corrections that
are not germane to these regulations will be considered in a future
FFEL technical corrections package.
Changes: The Secretary is revising Sec. 668.167(b) to provide that,
for FFEL Program funds that a lender provides by EFT or master check to
an institution on or after July 1, 1997 but before July 1, 1999, the
institution must return those funds to the lender if it does not
disburse them to the student or parent within 10 business days
following the date the institution receives the funds. FFEL Program
funds received by EFT or master check on or after July 1, 1999, must be
returned if the institution does not disburse them within 3 business
days following the date the institution receives the funds.
The Secretary is also revising Sec. 668.167(b) to provide that the
institution must return funds that were not disbursed within the
specified timeframe promptly to the lender but no later than 10
business days after the last day those funds could have been disbursed.
The Secretary is further revising the Sec. 668.167(b) to provide that
an institution may disburse funds to a borrower rather than return them
to the lender if the borrower is eligible to receive those funds and
the institution disburses those funds within the timeframe required for
the return of those funds.
FFEL Institutions on the Reimbursement Payment Method (Sec. 668.167(d))
Comments: Several commenters, including institutions, and higher
education associations, agreed that the reimbursement method may be
appropriate for institutions that have difficulties administering
Federal student aid funds, but strongly opposed the proposal to extend
reimbursement limitations to FFEL Program funds. These commenters
believed that since FFEL Program funds are disbursed by private
lenders, the Secretary does not have the statutory authority to prevent
these loan funds from reaching students. In addition, the commenters
indicated that this proposal was inappropriate because it would place
an enormous burden on affected institutions and would cause
complications and worry for innocent borrowers. These commenters were
also concerned that lenders would refuse to serve students at
institutions subject to the proposed FFEL reimbursement procedures
because of increased loan cancellations, borrower complaints, and other
unspecified burdens to lenders.
One commenter representing a consumer banking association opposed
the FFEL reimbursement procedures noting that the proposed limitations
have never before been placed on the FFEL Program funds and that
Congress has not provided for a ``reimbursement'' payment method for
funds disbursed by a lender. The commenter asserted that students have
a statutory right under the HEA to FFEL Program funds and that the
Secretary does not have the statutory authority to withhold FFEL
Program funds from borrowers.
Other commenters representing institutions declared that it made no
sense to extend the reimbursement payment method to the FFEL Programs
noting that lenders and guaranty agencies already exercise oversight of
this loan program and that the Secretary's involvement in the loan
certification process would only add unnecessary burden. The commenters
added that the proposed procedures would cause delays that would have a
negative impact on students and institutions.
One commenter representing a guaranty agency requested the
Secretary to clarify why an institution placed on the reimbursement
payment method should have more time (30 days) to disburse FFEL Program
funds than an institution that is not on reimbursement (3 days). The
commenter believed that an institution on reimbursement should be aware
of the time needed to provide the necessary documentation to the
Secretary and should thus schedule loan disbursements accordingly.
Two commenters representing a nonprofit lender and secondary market
and another commenter representing a national loan association
suggested that instead of allowing institutions on reimbursement to
hold FFEL Program funds for 30 days, the Secretary should require those
institutions to follow the 30-day delayed disbursement requirements now
in place for first-year, first-time borrowers. The commenters believed
this 30-day delay would provide sufficient time for the Secretary to
review borrower records. Alternatively, the first commenters requested
the Secretary to clarify in final regulations the difference between
the proposed timeframes for disbursing, holding, and returning FFEL
Program funds. The commenters were concerned that loan proceeds for
eligible students would be unnecessarily returned to lenders and wished
to limit the number of circumstances under which this would happen.
Another commenter representing a guaranty agency agreed with the
Secretary's goal of increased assurance of compliance and equitable
treatment across programs in which an institution participates but
believed that the differences in the delivery system for the FFEL
Programs may require a different solution. The commenter suggested that
the Secretary work with all the parties in FFEL Program delivery
process, especially guarantors, to develop more efficient yet still
reliable methods for accomplishing the Secretary's goal. As a possible
alternative to the proposed rule, the commenter offered that an
institution placed on the reimbursement payment method be required to
work with its primary guarantor to monitor and ensure compliance. The
Secretary could still, within such a system, specify the level of
monitoring that would be required. The commenter concluded that one
major advantage to developing such a plan would be that in many cases
the guarantor would be able to be on-site at the institution more
quickly and frequently and would be already familiar with the
institution's situation and systems through previous guaranty agency
reviews.
One commenter from a legal organization representing student loan
borrowers supported the reimbursement
[[Page 60598]]
proposal for FFEL Program funds. The commenter stated that because
institutions that are now placed on reimbursement for Federal Pell
Grant funds have unfettered access to student loan funds, such
institutions increase vigorously their recruiting and student loan
activity to make up for Federal Pell Grant shortfalls. In addition, the
commenter asserted that since reimbursement is often a precursor to an
institution closing, students incur debts although it is almost
inevitable that they will not receive the education and training for
which that debt was incurred. The commenter noted that depending on the
timing of the institution's closure vis-a-vis the student's enrollment,
the closed institution discharge provision in 20 U.S.C. 1087(c) may
require the Federal government to pay for such ill-advised loans to
students at institutions on Federal Pell Grant reimbursement. The
commenter concluded the reimbursement proposal was a measured and sound
approach since it would require the Secretary's approval of a loan
certification or disbursement on a case-by-case basis. Furthermore, the
commenter agreed with the Secretary that the reimbursement limitations
proposed for institutions that participate solely in the FFEL Programs
would protect the Federal fiscal interest as well as the students'
financial interests.
Discussion: The Secretary disagrees with the commenters who
asserted that the Secretary has no authority to prevent an institution
from certifying an FFEL loan application or disbursing loan proceeds to
a borrower until certain conditions are met. The Secretary notes that
section 432(a)(1) of the HEA authorizes the Secretary ``to prescribe
such regulations as may be necessary to carry out the purposes of this
part, . . . .'' Moreover, the conditions that must be met by an
institution before it can disburse a loan or certify a loan application
all relate to whether the borrower or applicant is eligible to receive
an FFEL loan disbursement. Certainly, the Secretary has the authority
to determine whether a recipient of title IV, HEA program funds is
eligible to receive those funds, regardless of the source of those
funds.
Finally, with regard to the comment that the Secretary is not
authorized to establish a reimbursement system of payment for the FFEL
Program, the Secretary reminds the commenter that institutions are not
being place under the reimbursement system of payment for the FFEL
Program. A critical component of the reimbursement system of payment is
that an institution uses its own funds to make a title IV, HEA program
payment and then seeks reimbursement from the Secretary for that
payment. The Secretary is not requiring institutions to make such a
payment to receive FFEL Program funds.
The Secretary also disagrees with the commenters who stated that is
made no sense to extend the reimbursement payment method to the FFEL
Programs because lenders and guaranty agencies exercise oversight of
institutions participating under these loan programs. The Secretary
notes that lender and guaranty agency oversight of institutions
participating under the FFEL Programs is not exclusive but rather
complimentary to the Secretary's oversight of institutions
participating under all of the title IV, HEA programs. Moreover, since
an institution is placed on reimbursement primarily because it failed
to adequately or properly administer the title IV, HEA programs, the
Secretary believes it is not only logical but compelling to subject
FFEL Program funds to the level of review currently required of all
other title IV, HEA program funds.
The Secretary thanks the commenters supporting the proposed
reimbursement rules and appreciates their suggestions. With regard to
the suggestion that the Secretary require institutions placed on
reimbursement to follow the 30-day delayed disbursement requirements
(now in place only for first-year, first-time borrowers) for all
borrowers, the Secretary believes the suggested requirement would
unnecessarily delay the disbursement of FFEL Program funds to eligible
borrowers. Under the suggested requirement, an institution would
certify a loan application by requesting the lender to provide loan
funds 30 days after the date those funds would normally be provided.
While the Secretary agrees that this procedure may minimize the return
of FFEL Program funds to lenders, it would delay the disbursement of
loan funds to all borrowers by 30 days. In contrast, under the proposed
rules an institution is not precluded from disbursing or certifying a
loan for a borrower earlier than 30 days provided that the institution
seeks and obtains the Secretary's approval within that time.
The Secretary agrees with the merits of the recommendation that an
institution placed on reimbursement be required to work with its
primary guarantor. Therefore, under an arrangement where the guaranty
agency is an entity approved by the Secretary as provided under
Sec. 668.167(d)(2), a guaranty agency may choose to work with
institutions that are under the reimbursement payment method.
With regard to the comment as to why an institution placed on the
reimbursement payment method should have more time (30 days) to
disburse FFEL Program funds than an institution that is not on
reimbursement (3 days), the additional time reflects the time an
institution needs to submit documentation to the Secretary to support a
student's eligibility for a FFEL Program loan, and the time the
Secretary will take to review that documentation. However, that extra
period of time is available only if the lender sends the FFEL funds to
the institution by EFT or master check.
Changes: The Secretary is revising Sec. 668.167(c)(2) to remove its
applicability to an institution placed on reimbursement when the lender
provides loan funds by paper check. In these instances the institution
may retain the loan funds without disbursing them only for the 30-day
timeframe provided in Sec. 668.167(b)(1)(iii).
Final Regulatory Flexibility Analysis
The Secretary has determined that some small entities are likely to
experience economic impacts from the proposed regulations. Thus, the
Regulatory Flexibility Act (RFA) requires that an Initial Regulatory
Flexibility Analysis (IRFA) of the economic impact on small entities be
performed and that the analysis, or a summary thereof, be published in
the notice of proposed rulemaking. The IRFA was performed and a summary
was published. This Final Regulatory Flexibility Analysis (FRFA)
discusses the comments received on the IRFA and fulfills the RFA
requirements.
Summary of significant issues raised by the public comments on the
Initial Regulatory Flexibility Analysis (IRFA), a summary of the
assessment of the Department of such issues, and a statement of any
changes made in the proposed rule as a result of such comments.
Changes were made in the final rule as a result of public comments.
The biggest change that was made was to allow for a phase-in period of
the shorter periods that institutions will hold title IV, HEA program
funds before disbursing them.
Comments: The Secretary received eight comments on the methodology
of the estimation of the economic impacts from five commenters. All
five commenters stated that the initial analysis underestimated the
economic costs. One stated that these regulations would cause the
institution to hire a new full-time employee at a cost of
[[Page 60599]]
$30,000 per year. One simply asserted that the estimated cost of $230
for 10 hours is too low for these regulations but did not provide any
more information. One commenter proposed that the just-in-time payment
method would impose an increased paperwork burden that was not
analyzed.
Discussion: The Secretary believes the paperwork burden estimates
used in the NPRM are accurate. A new full-time staff person would
supply about 2,000 hours of labor in a year. This is much more than is
required for compliance with these regulations, which is estimated to
be about 200 hours. However, there were several areas that might impose
economic impacts of a smaller magnitude than were analyzed in the IRFA.
These were discovered as a function of the comments received and a re-
analysis of the rule.
Changes: The FRFA analyzes components that may impose economic
impacts that the IRFA did not analyze.
Comments: Some commenters apparently did not understand the IRFA
analysis. One commenter confused the estimate for the paperwork for the
entire sector (10 hours per institution x 175 institutions=1750 burden-
hours) as the burden for a single institution. Another commenter stated
that it would take substantially more than 10 hours for institutions to
participate in the reimbursement payment method.
Discussion: The paperwork estimate for institutions that would be
put on reimbursement as a result of this rule corresponds to the
marginal increase in paperwork for institutions that are already on
reimbursement for other title IV, HEA programs. As a result of these
comments, the Secretary reanalyzed the paperwork burden and validated
the earlier estimate of 10 hours per institution.
Changes: The FRFA will contain more easily understandable language
to avoid the confusion in the IRFA.
Comments: Three commenters stated that delays on reimbursement
might be longer that 18-20 days. One commenter suggested that it was
important to look at more than just the average payment delay, since
there may be a substantial number of small entities that experience
significantly longer delays. It was suggested by several commenters
that delays can be as long as 6 weeks.
Discussion: This is another area where the commenters apparently
did not understand the IRFA analysis. The IRFA states that the average
delay is 18-20 days. However, in calculating the interest costs, the
more conservative delay estimate of 30 days was used. Delays of periods
longer than 30 days that are attributable to the Department's action or
inaction would not affect a significant number of small (or large)
entities.
Changes: The FRFA will contain more easily understandable language
to avoid the confusion in the IRFA.
Comments: One commenter took issue with the analysis of the number
of disbursements associated with the reimbursement payment method. The
commenter stated that the more typical situation would be for as many
as 6 or 8 or more disbursements in a year, causing the institution to
obtain a series of different short-term loans at varying face amounts
to operate during the delay.
Discussion: This is another area where the commenter apparently did
not understand the IRFA analysis. There is no presumption about the
timing of the disbursements. Each loan is required by existing statute
and regulations to be disbursed in at least two installments. These are
the two installments that we analyzed. Small entities in the situation
described would probably establish the need for a revolving fund with a
bank. The costs associated with establishing such a fund is comparable
to the costs we have outlined.
Changes: The analysis will discuss this situation.
Comments: One commenter took issue with the costs associated with
the electronic processes component. This commenter stated that some
institutions might have to buy a new computer, pay long distance
charges, and install a dedicated phone line.
Discussion: This is an area where the IRFA did not analyze these
costs. As a result of this comment, the FRFA does discuss the
possibility that some institutions may have to purchase computer
equipment. The FRFA also discusses the possibility that institutions
may have to purchase some computer training or be charged by the
Department for technical assistance calls. However, phone calls are
free to the Department's 800 number. The Secretary does not think it
would be necessary for a small institution to require a dedicated phone
line to participate in the electronic processes of the Department.
Changes: The FRFA will discuss these costs.
Comments: Three commenters stated that the breadth of the IRFA
analysis was insufficient. They stated that the analysis needs to look
at more components than the reimbursement provision.
Discussion: The Secretary has reanalyzed the regulation and found
additional areas where economic impacts may be imposed on small
entities. The FRFA contains a discussion of these impacts. However, the
IRFA does contain an analysis of the most significant economic impacts.
While the additional areas of analysis of economic impacts may not, by
themselves, constitute a significant economic impact, when taken
together they might.
Changes: The summary of the FRFA looks at more than just
reimbursement.
Comments: Two commenters stated that the Department must analyze
this rule in conjunction with another NPRM that was published at the
same time. These commenters indicated that the ``Financial
Responsibility'' rule would have the effect of putting more
institutions on the reimbursement payment method and that this analysis
of the ``Cash Management'' rule should consider the economic impact on
those institutions as well.
Discussion: The Secretary agrees with the general concept that
proposed rules should be analyzed for their joint impact. In this
particular situation, however, the proper place for that discussion is
in the ``Financial Responsibility'' regulations. The costs of
institutions being provisionally certified and then being put on
reimbursement would occur as a result of any changes in the ``Financial
Responsibility'' requirements. The effect of the ``Cash Management''
regulations is to extend reimbursement to FFEL. The costs of being put
on reimbursement that would be imposed by any changes in the
``Financial Responsibility'' regulations would include the costs of
being put on reimbursement for all title IV, HEA programs (consistent
with this regulation). That is, the cost of being put on reimbursement
for those institutions would be marginally higher as a result of these
regulations. However, the public comment period has been extended on
this component of the proposed ``Financial Responsibility''
regulations. The analysis of these costs will be included in the
preamble to the final Financial Responsibility regulations.
Changes: The FRFA for both regulations will point out the cross-
effects as outlined here.
Description of the reasons why action by the Department is being
considered and a succinct statement of the objectives of, and legal
basis for, the proposed rule.
The Secretary proposes these regulatory changes to further the
implementation of the Department of Education initiatives to reduce
burden and improve program accountability. More information about the
need and
[[Page 60600]]
justification for the proposed rule can be found in the preamble to the
NPRM.
Description and estimate of the number of small entities to which
the proposed rule will apply.
The Secretary has adopted the U.S. Small Business Administration
(SBA) Size Standards for this analysis. The RFA directs that small
entities are the sole focus of the Regulatory Flexibility Analysis.
There are three types of small entities that are analyzed here. They
are: for-profit entities with total annual revenue below $5,000,000;
non-profit entities with total annual revenue below $5,000,000; and
entities controlled by governmental entities with populations below
50,000. An estimate of the proportion of entities in each of these
categories was calculated using the best available data from the
National Center for Education Statistics Integrated Postsecondary
Education Data System (IPEDS) survey for academic year 1993-94. These
estimates were applied to Department administrative files, where no
data element for total revenue is available. The estimates are that
1,690 small for-profit entities, 660 small non-profit entities and 140
small governmental entities will be covered by the proposed rule. Where
exact data were not available to estimate the proportion of small
entities, data elements were chosen that would have overestimated,
rather than underestimated, the proportion.
Estimate of the number of institutions experiencing economic
impacts from rule and estimates of the economic impacts.
This rule can be partitioned for analysis purposes into 12
components. Each component is analyzed separately. As discussed in the
response to comments above, each component was reanalyzed for possible
adverse economic impacts as a result of comments received. The
following components are expected to have a positive or neutral
economic impact: uniform payment period; restructure regulations; just-
in-time payment method; separate bank accounts; payment period; late
disbursements; and, excess cash exemption. The following components
have the potential to impose adverse economic impacts on small
entities: electronic processes; student notification; disbursement
timeframes/returning undisbursed funds; and reimbursement extension to
FFEL. A summary of the analysis of the economic impact of each of these
components follows.
Electronic Processes Component
Institutions will be required to use electronic processes that the
Secretary provides on a substantially free basis. Institutions may have
to obtain computer hardware and computer training in order to
participate. It is estimated that a new computer would cost $1,500 and
computer training might cost as much as $500. Institutions that are
heavy users of technical assistance may be charged as much as $100 per
year for this assistance. Changing to electronic processes may require
changes in an institution's accounting system and/or the institution's
SFA delivery system. The costs of these changes are entirely dependent
on the characteristics of the institution under consideration and can
not be reliably estimated.
Student Notification Component
This component increases these students notification and
authorization requirements on institutions. This is estimated to
require an additional 195.6 hours, as discussed in the paperwork burden
section. Using a loaded labor rate of $20.00 per hour, this would cost
$3,912 per institution. It is further estimated that between one and
three students per thousand will take advantage of the loan
cancellation provision. It is assumed that most of these students will
arrange for an alternative method of paying for their postsecondary
education and there will be no additional economic costs associated
with accommodating their request since current regulations require such
requests to be accommodated. However, there may be a few students who
have changed their mind about attending the postsecondary education
program within the first few days. It is this student that these
regulations are designed to protect. The cost of unenrolling such a
student will vary from program to program, but is estimated to be
between $100 and $1,000. Data do not exist that would allow for precise
estimation of the number of small entities that would experience
adverse economic impacts. However, if we assume that each small entity
has approximately 100 students, then between three and eight
institutions will need to unenroll a student each year and be required
to obtain a refund from that student outside of the student's loan
proceeds. These estimates are based on the best professional judgment
of student financial aid staff knowledgeable in this area. Data are not
readily available that would allow for more precise estimation of these
costs.
Disbursement Timeframes Component
Currently, institutions are not allowed to request loan funds from
lenders sooner than 13 days before the first day of classes of the
payment period. This component clarifies that this timeframe applies to
all loan disbursements, not just the first disbursement. This component
also clarifies that, in the case of students who are subject to delayed
disbursement, the institution cannot request loan funds more than three
days before the loan funds are scheduled to be made available to the
borrower. The economic impact of this component is described below in
the context of returning funds not disbursed within three days.
Returning Undisbursed Funds Component
This provision will change the time that institutions can keep
their funds, requiring institutions to return funds not disbursed
within 3 business days (or an additional 10 under certain
circumstances), except that this provision will be phased in gradually
over 3 years. This analysis compares the cost when the provision is
fully phased in. There is a potential loss of funds for those
institutions who have been delaying 45 days and putting the money in
interest-bearing accounts. It is assumed that between 40 percent and 60
percent of small entities are currently receiving funds through EFT
transfers and that these institutions are holding funds between 30 and
40 days. Lenders bill the Department for in-school interest subsidy
payments three days after disbursing them electronically. Thus, the
Department is paying between 27 and 37 days of in-school interest
subsidy to lenders without the student having the use of these funds
for educational expenses. At the same time, institutions will lose the
use of these funds for the same period (30 to 40 days). The economic
impact of losing the use of these funds is difficult to quantify. Not
enough is known about the cash flow practices of particular
institutions to determine the impact, but it is assumed to have some
impact.
Reimbursement Extension to FFEL Component
This component will require institutions that participate in the
FFEL program and that are on the reimbursement payment method for other
title IV, HEA programs, or for which the Secretary determines there is
a need to strictly monitor FFEL Program funds, to submit documentation
from existing sources to the Secretary or an approved entity, that
supports the certification of FFEL Program applications or supports
intended disbursements of FFEL Program funds. The FFEL Program
disbursements at an
[[Page 60601]]
institution could be delayed for an estimated average of 18-20 days
until approval for those certifications or disbursements is received by
the institution, costing the institution potential interest expenses
and paperwork expenses for the submission of supporting documentation.
For this analysis, the delay was assumed to be longer than the 18-20
day average. This analysis uses a 30-day period, even though the
average is 10-12 days less.
As of July 31, 1996, there were 307 institutions being paid on a
reimbursement basis, estimated at 257 for-profit entities, 36 non-
profit entities, and 14 governmental entities. Of the 307 institutions,
175 participated in the FFEL Programs and had loan activity during the
1995 fiscal year. Where exact data were not available to estimate the
cost to small entities, data elements were chosen that would have
overestimated rather than underestimated the cost. For example,
information is not available on the proportion of these institutions
that are small versus the number that are large. For this analysis, in
order to prevent an underestimate, all 175 institutions were assumed to
be small entities.
The economic impact that these entities would experience is that
associated with the need to advance funds to student before receiving
the payment from the Secretary. Some entities that have funds readily
available will be losing the interest that those funds would have
received had they been deposited in an interest-bearing account. Some
entities that do not have funds readily available may be required to
borrow funds in order to operate during the 18-20 days prior to
receiving funds from the Secretary. Since the borrowing rate is higher
than the saving rate, only the latter case is analyzed. However, it is
understood that this represents an overestimate of the actual costs
experienced by real entities. Also, since some entities will experience
longer delays that the 18-20 day average, this analysis considers that
funds will be borrowed for 30 days since delays are rarely, if ever,
longer than this for institutions on the reimbursement method of
payment. In order to provide a reasonable range for the cost estimates,
the Secretary analyzed the case for small entities with low FFEL volume
and small entities with high FFEL volume.
More than 60 percent of the 175 institutions that could be affected
by these proposed regulations had a FFEL programs loan volume of less
than $900,000 during the 1995 fiscal year. Therefore, for most
institutions, based upon an interest rate equal to the prime rate plus
4 percent (8.25%+4%=12.25%) for two short-term loans, one for each
disbursement for a period of 30 days, the cost per institution would be
an estimated $9,062 in interest expenses. The potential loss of
interest earnings that could have accrued for the delayed FFEL Program
funds during that time is estimated at 3 percent equaling an estimated
$2,219.
In addition to the interest expenses, there would be an estimated
cost of $230 per institution for increased paperwork as a result of
submitting to the Secretary or approved entity documentation in support
of the certification of loan applications or the disbursement of FFEL
Program funds to eligible borrowers. The cost is a result of an
estimated increase of 10 hours of paperwork by an employee at a loaded
labor rate of $20 per hour, and $3.00 in postage for an average of 10
mailings.
Less than 15 percent of the 175 institutions identified had a loan
volume of $3,300,000 or greater. For an institution in this category,
the interest expenses for the total amount of loan commitments under
the same conditions above would equal an estimated $33,226. The
potential loss of interest earnings on those funds equals an estimated
$8,137 per institution.
As a result, the total potential cost per school in interest
expenses and increased paperwork for the 105 small entities, subject to
the extension of the reimbursement payment method provisions of this
regulation, with FFEL volume below $900,000 is estimated at $11,511.
For the approximately 26 small entities subject to the extension of the
reimbursement payment method provisions of this rule with FFEL Program
volume above $3,300,000, the total potential cost per school is
estimated at $41,593. These costs are estimates and the costs
experienced by actual institutions will undoubtedly be different. These
estimates should be used as illustrative examples only of the expenses
incurred by low and high volume schools. Middle volume schools will
have expenses between these two extremes.
Description of the steps the Department has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes.
The Department has undertaken several actions in these regulations
to minimize the economic impacts on small (and large) entities. For
instance, the adoption of a uniform payment period is expected to
simplify administration of the title IV, HEA programs. The final rule
removes some prescriptive requirements for maintaining funds in
separate accounts for institutions under the just-in-time payment
method. The final rule simplifies and removes redundant provisions in
the late disbursement regulations.
In addition, the final rule includes a gradual phase-in of the new
disbursement timeframes. This phase-in is a change from the proposal
described in the NPRM. This change was undertaken in response to public
comment regarding the economic impacts of the new timeframes. This step
will help to minimize the economic impact on small (and large)
entities.
Description of significant alternatives which accomplish the stated
objectives of applicable statutes and which minimize any significant
economic impact of the proposed rule on small entities.
While the Department considered alternative means of satisfying
many specific provisions, as discussed in the preamble to both the NPRM
and the preamble to this final rule, there are no other significant
alternatives that would satisfy the same legal and policy objectives
while minimizing the impact on small entities. The proposed approach
balances regulatory reform and improved accountability in a proper
fashion. Consistent with the Secretary's regulatory relief initiative,
participating institutions are subject to the minimum requirements that
adequately protects the Federal fiscal interest. In fact, several
components of the proposed rule reduce the regulatory burden on
participating institutions. The Secretary believes that the proposed
approach is the least complicated and burdensome for small (and large)
entities involved in the administration of the title IV, HEA programs
while still allowing for the proper protection of the Federal fiscal
interests and the interests of students and their parents.
For the purposes of performing this regulatory flexibility
analysis, the alternative of ``no action'' could be considered a
significant alternative. If the Secretary did not undertake any action
in this area, small (and large) entities would not experience the
economic impacts imposed by these regulations. However, as described in
the preamble to the final rule, the Secretary believes that this action
is required to further Department initiatives and to better protect the
Federal fiscal interest. This is discussed further below.
The factual, policy, and legal reasons for selecting the
alternative adopted in the final rule.
[[Page 60602]]
The factual, policy, and legal reasons for selecting the
alternative adopted in the final rule are discussed above and elsewhere
in this preamble. The alternative ``no action'' would not adequately
protect the Federal fiscal interest, as discussed above and elsewhere
in this preamble.
The use of the proposed requirement will enable the Secretary to
better discharge the responsibilities of managing the title IV, HEA
programs funds, to promote parallel requirements across the title IV,
HEA programs, and to better safeguard the Federal fiscal interest and
the interests of students.
Why each one of the other significant alternatives to the rule
considered by the Department which affect the impact on small entities
was rejected.
The alternative ``no action'' was rejected because this alternative
would not adequately protect the Federal fiscal interest, as discussed
above and elsewhere in this preamble.
Conclusion
A substantial number of small entities are likely to experience
significant economic impacts from the proposed rule. However, the
Secretary has concluded that the costs are outweighed by the benefits.
In this case, the benefits are better protection of the Federal fiscal
interest and improved service to students.
The adverse economic impacts experienced by some small (and large)
entities is balanced by the positive economic impacts accruing to the
U.S. taxpayer. These positive impacts arise (1) from the ability of the
Secretary to ensure that eligible students receive title IV, HEA
program funds in the amount for which they are eligible in cases where
there is a need to strictly monitor title IV, HEA program funds at an
institution and, (2) from the protection of students and the Federal
interest in the title IV, HEA programs.
The use of the proposed requirement will enable the Secretary to
better discharge the responsibilities of managing the title IV, HEA
programs funds, to promote parallel requirements across the title IV,
HEA programs, and to better safeguard the Federal fiscal interest and
the interests of students.
Waiver of Notice of Proposed Rulemaking
In accordance with Section 431 (b)(2)(A) of the General Education
Provisions Act, 20 U.S.C. 1232(b)(2)(A), and the Administrative
Procedure Act, 5 U.S.C. 553, it is the practice of the Secretary to
offer interested parties the opportunity to comment on proposed rules
and regulations. However, the Secretary amends Sec. 668.162(a) as a
final rule to revise the procedure for presenting cash requests to the
Department under the exemption from rulemaking requirements in 5 U.S.C.
553(b)(A) for rules of agency procedure.
Paperwork Reduction Act of 1995
Sections 668.16, 668.165, 668.167 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995, the
U.S. Department of Education has submitted a copy of these sections to
OMB for its review. (44 U.S.C. 3504(h)).
Assessment of Educational Impact
In the NPRM published September 23, 1996, the Secretary requested
comment on whether the proposed regulations in this document would
require transmission of information that is being gathered by, or is
available from, any other agency or authority of the United States.
Based on the response to the proposed rules on its own review, the
Department has determined that the regulations in this document do not
require transmission of information that is being gathered by, or is
available from, any other agency or authority of the United States.
List of Subjects
34 CFR Part 668
Administrative practice and procedure, Colleges and universities,
Consumer protection, Loan programs--education, Grant programs--
education, Student aid, Reporting and recordkeeping requirements.
34 CFR Part 674, 675, and 676
Loan programs--education, Student aid, Reporting and recordkeeping
requirements.
34 CFR Part 682
Administrative practice and procedure, Colleges and universities,
Loan Programs--education, Student aid, Vocational education, Reporting
and recordkeeping requirements.
34 CFR Part 685
Administrative practice and procedure, Colleges and universities,
Loan Programs--education, Student aid, Vocational education, Reporting
and recordkeeping requirements.
34 CFR Part 690
Grant programs--education, Reporting and recordkeeping
requirements, Student aid.
(Catalog of Federal Domestic Assistance Numbers: 84.007 Federal
Supplemental Educational Opportunity Grant Program; 84.032
Consolidation Program; 84.032 Federal Stafford Loan Program; 84.032
Federal PLUS Program; 84.032 Federal Supplemental Loans for Students
Program; 84.033 Federal Work-Study Program; 84.038 Federal Perkins
Loan Program; 84.063 Federal Pell Grant Program; 84.069 Federal
State Student Incentive Grant Program; 84.268 William D. Ford
Federal Direct Loan Programs; and 84.272 National Early Intervention
Scholarship and Partnership Program)
Dated: November 22, 1996.
Richard W. Riley,
Secretary of Education.
The Secretary amends parts 668, 674, 675, 676, 682, 685, and 690 of
title 34 of the Code of Federal Regulations as follows:
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
1. The authority citation for part 668 continues to read as
follows:
Authority: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, and 1141,
unless otherwise noted.
Subpart A--General
2. Section 668.4 is added to read as follows:
Sec. 668.4 Payment period.
(a) Payment period for an eligible program that has academic terms
and measures progress in credit hours. For a student enrolled in an
eligible program that is offered in semesters, trimesters, quarters, or
other academic terms and measures progress in credit hours, the payment
period is the semester, trimester, quarter, or other academic term.
(b) Payment periods for an eligible program that measures progress
in credit hours and does not have academic terms or measures progress
in clock hours. (1) For a student enrolled in an eligible program that
is one academic year or less in length--
(i) The first payment period is the period of time in which the
student completes the first half of the program as measured in credit
or clock hours; and
(ii) The second payment period is the period of time in which the
student completes the second half of the program as measured in credit
or clock hours.
(2) For a student enrolled in an eligible program that is more than
one academic year in length--
(i) For the first academic year and any subsequent full academic
year as measured in credit or clock hours--
(A) The first payment period is the period of time in which the
student completes the first half of the academic
[[Page 60603]]
year as measured in credit or clock hours; and
(B) The second payment period is the period of time in which the
student completes the second half of that academic year;
(ii) For any remaining portion of an eligible program that is more
than one-half an academic year but less than a complete academic year--
(A) The first payment period is the period of time in which a
student completes the first half of the remaining portion of the
eligible program as measured in credit or clock hours; and
(B) The second payment period is the period of time in which the
student completes the remainder of the eligible program; and
(iii) For any remaining portion of an eligible program that is not
more than half an academic year as measured in credit or clock hours,
the payment period is the remainder of that eligible program.
(3) For purposes of paragraphs (b)(1) and (b)(2) of this section,
if a student is enrolled in an eligible program that measures progress
in credit hours and the student cannot earn half the credit hours in
the program under paragraph (b)(1) of this section or half of the
remaining portion of the eligible program under paragraph (b)(2)(i) and
(b)(2)(ii) of this section until after the calendar midpoint between
the first and last scheduled days of class, the second payment period
begins on the later of--
(i) The calendar midpoint between the first and last scheduled days
of class of the program or academic year; or
(ii) The date, as determined by the institution, that the student
has completed half of the academic coursework.
(4) If, in an academic year, in a program of less than an academic
year, or in the remaining portion of an eligible program under
paragraph (b)(2) of this section, an institution chooses to have more
than two payment periods, the rules in paragraphs (b)(1) through (b)(3)
of this section are modified to reflect the increased number of payment
periods. For example, if an institution chooses to have three payment
periods in an academic year, each payment period must correspond to
one-third of the academic year.
(Authority: 20 U.S.C. 1070 et seq.)
Subpart B--Standards for Participation in Title IV, HEA Programs
3. Section 668.16 is amended by removing ``and'' at the end of
paragraph (m)(2)(ii), removing the period at the end of paragraph (n),
and inserting ``; and'', and adding a new paragraph (o) to read as
follows:
Sec. 668.16 Standards of administrative capability.
* * * * *
(o) Participates in the electronic processes that the Secretary--
(1) Provides at no substantial charge to the institution; and
(2) Identifies through a notice published in the Federal Register.
* * * * *
(Authority: 20 U.S.C. 1082, 1085, 1094, 1099c)
4. Subpart K is revised to read as follows:
Subpart K--Cash Management
Sec. 668.161 Scope and purpose.
(a) General. (1) This subpart establishes the rules and procedures
under which a participating institution requests, maintains, disburses,
and otherwise manages title IV, HEA program funds. This subpart is
intended to--
(i) Promote sound cash management of title IV, HEA program funds by
an institution;
(ii) Minimize the financing costs to the Federal government of
making title IV, HEA program funds available to a student or an
institution; and
(iii) Minimize the costs that accrue to a student under a title IV,
HEA loan program.
(2) The rules and procedures that apply to an institution under
this subpart also apply to a third-party servicer.
(3) As used in this subpart--
(i) The title IV, HEA programs include only the Federal Pell Grant,
FSEOG, Federal Perkins Loan, FWS, Direct Loan, and FFEL programs;
(ii) The term ``parent'' means a parent borrower under the PLUS
programs;
(iii) With regard to the FFEL Programs, the term ``disburse'' means
the same as deliver loan proceeds under 34 CFR Part 682 of the FFEL
Program regulations; and
(iv) A day is a calendar day unless otherwise specified.
(4) FWS Program. An institution must follow the disbursement
procedures in 34 CFR 675.16 for paying a student his or her wages under
the FWS Program instead of the disbursement procedures and requirements
under this subpart.
(b) Federal interest in title IV, HEA program funds. Except for
funds received by an institution for administrative expenses and for
funds used for the Job Location and Development Program under the FWS
Programs, funds received by an institution under the title IV, HEA
programs are held in trust for the intended student beneficiaries and
the Secretary. FFEL program funds are also held in trust for the
lenders and guaranty agencies, in addition to the student beneficiaries
and the Secretary, under 34 CFR 682.207. The institution, as a trustee
of Federal funds, may not use or hypothecate (i.e., use as collateral)
title IV, HEA program funds for any other purpose.
(Authority: 20 U.S.C. 1094)
Sec. 668.162 Requesting funds.
(a) General. (1) The Secretary has sole discretion to determine the
method under which the Secretary provides title IV, HEA program funds
to an institution. In accordance with procedures established by the
Secretary, the Secretary may provide funds to an institution in advance
of the institution's need for those funds (advance payment method), by
the date the institution needs those funds (just-in-time payment
method), or by reimbursing an institution for disbursements already
made to eligible students and parents (reimbursement payment method).
(2) Each time an institution requests funds from the Secretary, the
institution must identify the amount of funds requested by program and
fiscal year designation that the Secretary assigned to the
authorization for those funds.
(b) Advance payment method. Under the advance payment method--
(1) An institution submits a request for funds to the Secretary.
The institution's request for funds may not exceed the amount of funds
the institution needs immediately for disbursements the institution has
made or will make to eligible students and parents;
(2) If the Secretary accepts that request, the Secretary initiates
an electronic funds transfer (EFT) of that amount to a bank account
designated by the institution; and
(3) The institution must disburse the funds requested as soon as
administratively feasible but no later than three business days
following the date the institution received those funds.
(c) Just-in-time payment method. Under the just-in-time payment
method--
(1) For each student or parent that an institution determines is
eligible for title IV, HEA program funds, the institution transmits
electronically to the Secretary, within a timeframe established by the
Secretary, records that contain program award information for that
student or parent. As part of those records, the
[[Page 60604]]
institution reports the date and amount of the disbursements that it
will make or has made to that student or that student's parent;
(2) For each record the Secretary accepts for a student or parent,
the Secretary provides by EFT the corresponding disbursement amount to
the institution on or before the date reported by the institution for
that disbursement;
(3) When the institution receives the funds for each record
accepted by the Secretary, the institution may disburse those funds
based on its determination at the time the institution transmitted that
record to the Secretary that the student is eligible for that
disbursement; and
(4) The institution must report any adjustment to a previously
accepted record within the time established by the Secretary in a
notice published in the Federal Register.
(d) Reimbursement payment method. Under the reimbursement payment
method--
(1) An institution must first make disbursements to students and
parents for the amount of funds those students and parents are eligible
to receive under the Federal Pell Grant, Direct Loan, and campus-based
programs before the institution may seek reimbursement from the
Secretary for those disbursements. The Secretary considers an
institution to have made a disbursement if the institution has either
credited a student's account or paid a student or parent directly with
its own funds;
(2) An institution seeks reimbursement by submitting to the
Secretary a request for funds that does not exceed the amount of the
actual disbursements the institution has made to students and parents
included in that request;
(3) As part of the institution's reimbursement request, the
Secretary requires the institution to--
(i) Identify the students for whom reimbursement is sought; and
(ii) Submit to the Secretary or entity approved by the Secretary
documentation that shows that each student and parent included in the
request was eligible to receive and has received the title IV, HEA
program funds for which reimbursement is sought; and
(4) The Secretary approves the amount of the institution's
reimbursement request for a student or parent and pays the institution
that amount, if the Secretary determines with regard to that student or
parent that the institution--
(i) Accurately determined the student's eligibility for title IV,
HEA program funds;
(ii) Accurately determined the amount of title IV, HEA program
funds paid to the student or parent; and
(iii) Submitted the documentation required under paragraph (d)(3)
of this section.
(Authority: 20 U.S.C. 1094)
Sec. 668.163 Maintaining and accounting for funds.
(a)(1) Bank or investment account. An institution must maintain
title IV, HEA program funds in a bank or investment account that is
Federally insured or secured by collateral of value reasonably
equivalent to the amount of those funds.
(2) For each bank or investment account that includes title IV, HEA
program funds, an institution must clearly identify that title IV, HEA
program funds are maintained in that account by--
(i) Including in the name of each account the phrase ``Federal
Funds''; or
(ii)(A) Notifying the bank or investment company of the accounts
that contain title IV, HEA program funds and retaining a record of that
notice; and
(B) Except for a public institution, filing with the appropriate
State or municipal government entity a UCC-1 statement disclosing that
the account contains Federal funds and maintaining a copy of that
statement.
(b) Separate bank account. The Secretary may require an institution
to maintain title IV, HEA program funds in a separate bank or
investment account that contains no other funds if the Secretary
determines that the institution failed to comply with--
(1) The requirements in this subpart;
(2) The recordkeeping and reporting requirements in subpart B of
this part; or
(3) Applicable program regulations.
(c) Interest-bearing or investment account. (1) An institution must
maintain the Fund described in Sec. 674.8(a) of the Federal Perkins
Loan Program regulations in an interest-bearing bank account or
investment account consisting predominately of low-risk, income-
producing securities, such as obligations issued or guaranteed by the
United States. Interest or income earned on Fund proceeds are retained
by the institution as part of the Fund.
(2) Except as provided in paragraph (c)(3) of this section, an
institution must maintain Direct Loan, Federal Pell Grant, FSEOG, and
FWS program funds in an interest-bearing bank account or an investment
account as described in paragraph (c)(1) of this section.
(3) An institution does not have to maintain Direct Loan, Federal
Pell Grant, FSEOG, and FWS program funds in an interest-bearing bank
account or an investment account for an award year if--
(i) The institution drew down less than a total of $3 million of
those funds in the prior award year and anticipates that it will not
draw down more than that amount in the current award year;
(ii) The institution demonstrates by its cash management practices
that it will not earn over $250 on those funds during the award year;
or
(iii) The institution requests those funds from the Secretary under
the just-in-time payment method.
(4) If an institution maintains Direct Loan, Federal Pell Grant,
FSEOG, and FWS program funds in an interest-bearing or investment
account, the institution may keep the initial $250 it earns on those
funds during an award year. By June 30 of that award year, the
institution must remit to the Secretary any earnings over $250.
(d) Accounting and internal control systems and financial records.
(1) An institution must maintain accounting and internal control
systems that--
(i) Identify the cash balance of the funds of each title IV, HEA
program that are included in the institution's bank or investment
account as readily as if those program funds were maintained in a
separate account; and
(ii) Identify the earnings on title IV, HEA program funds
maintained in the institution's bank or investment account.
(2) An institution must maintain its financial records in
accordance with the provisions under Sec. 668.24.
(e) Standard of conduct. An institution must exercise the level of
care and diligence required of a fiduciary with regard to maintaining
and investing title IV, HEA program funds.
(Authority: 20 U.S.C. 1094)
Sec. 668.164 Disbursing funds.
(a) Disbursement. (1) Except as provided in paragraph (a)(2) of
this section, an institution makes a disbursement of title IV, HEA
program funds on the date that the institution credits a student's
account at the institution or pays a student or parent directly with--
(i) Funds received from the Secretary;
(ii) Funds received from a lender under the FFEL Programs; or
(iii) Institutional funds used in advance of receiving title IV,
HEA program funds.
(2) If, earlier than 10 days before the first day of classes of a
payment period,
[[Page 60605]]
or for a student subject to the requirements of Sec. 682.604(c)(5) or
Sec. 685.303(b)(4) earlier than 30 days after the first day of the
payment period, an institution credits a student's institutional
account with institutional funds in advance of receiving title IV, HEA
program funds, the Secretary considers that the institution makes that
disbursement on the 10th day before the first day of classes, or the
30th day after the beginning of the payment period for a student
subject to the requirements of Sec. 682.604(c)(5) or
Sec. 685.303(b)(4).
(b) Disbursements by payment period. (1) Except as provided in
paragraph (b)(2) of this section, an institution must disburse title
IV, HEA program funds on a payment period basis. Except as provided in
paragraph (g) of this section, an institution may disburse title IV,
HEA program funds to a student or parent for a payment period only if
the student is enrolled for classes for that payment period and is
eligible to receive those funds.
(2) The provisions of paragraph (b)(1) of this section do not apply
to the disbursement of FWS Program funds.
(3) For a student enrolled in an eligible program at an institution
that measures academic progress in clock hours, in determining whether
the student completes the clock hours in a payment period, an
institution may include clock hours for which the student has an
excused absence if--
(i) The institution has a written policy that permits excused
absences; and
(ii) The number of excused absences under the written policy for
purposes of this paragraph does not exceed the lesser of--
(A) The policy on excused absences of the institution's accrediting
agency or, if the institution has more than one accrediting agency, the
agency designated under 34 CFR part 600.11(b);
(B) The policy on excused absences of any State agency that
licenses the institution or otherwise legally authorizes the
institution to operate in the State; or
(C) Ten percent of the clock hours in the payment period.
(4) For purposes of paragraph (b)(3) of this section, an ``excused
absence'' is an absence that a student does not have to make up.
(c) Direct payments. An institution pays a student or parent
directly by--
(1) Releasing to the student or parent a check provided by a lender
to the institution under an FFEL Program;
(2) Issuing a check or other instrument payable to and requiring
the endorsement or certification of the student or parent. An
institution issues a check by--
(i) Releasing or mailing the check to a student or parent; or
(ii) Notifying the student or parent that the check is available
for immediate pickup;
(3) Initiating an electronic funds transfer (EFT) to a bank account
designated by the student or parent; or
(4) Dispensing cash for which an institution obtains a signed
receipt from the student or parent.
(d) Crediting a student's account at the institution.
(1) Without obtaining the student's or parent's authorization under
Sec. 668.165, an institution may use title IV, HEA program funds to
credit a student's account at the institution to satisfy current
charges for--
(i) Tuition and fees;
(ii) Board, if the student contracts with the institution for
board; and
(iii) Room, if the student contracts with the institution for room.
(2) After obtaining the appropriate authorization from a student or
parent under Sec. 668.165, the institution may use title IV, HEA
program funds to credit a student's account at the institution to
satisfy--
(i) Current charges that are in addition to the charges described
in paragraph (d)(1) of this section that were incurred by the student
at the institution for educationally related activities; and
(ii) Minor prior award year charges if these charges are less than
$100 or if the payment of these charges does not, and will not, prevent
the student from paying his or her current educational costs.
(3) If an institution disburses Direct Loan Program funds by
crediting a student's account at the institution, the institution must
first credit the student's account with those funds to pay for
outstanding current and authorized charges.
(4) For purposes of this paragraph, current charges refers to
charges assessed the student by the institution for--
(i) The current award year; or
(ii) The loan period for which an institution certified or
originated a loan under the FFEL or Direct Loan programs.
(e) Credit balances. Whenever an institution disburses title IV,
HEA program funds by crediting a student's account and the total amount
of all title IV, HEA program funds credited exceeds the amount of
tuition and fees, room and board, and other authorized charges the
institution assessed the student, the institution must pay the
resulting credit balance directly to the student or parent as soon as
possible but--
(1) No later than 14 days after the balance occurred if the credit
balance occurred after the first day of class of a payment period; or
(2) No later than 14 days after the first day of class of a payment
period if the credit balance occurred on or before the first day of
class of that payment period.
(f) Early disbursements. Except as provided under paragraph (f)(3)
of this section--
(1) If a student is enrolled in a credit-hour educational program
that is offered in semester, trimester, or quarter academic terms, the
earliest an institution may disburse title IV, HEA program funds to a
student or parent for any payment period is 10 days before the first
day of classes for a payment period.
(2) If a student is enrolled in a credit-hour educational program
that is not offered in semester, trimester, or quarter academic terms,
or in a clock hour educational program the earliest an institution may
disburse title IV, HEA program funds to a student or parent for any
payment period is the later of--
(i) Ten days before the first day of classes of the payment period;
or
(ii) The date the student completed the previous payment period for
which he or she received title IV, HEA program funds, except that this
provision does not apply to the payment of Direct Loan or FFEL program
funds under the conditions described in 34 CFR 685.301 (b)(3)(ii),
(b)(5), and (b)(6) and 34 CFR 682.604 (c)(6)(ii), (c)(7), and (c)(8),
respectively.
(3) The earliest an institution may disburse the initial
installment of a loan under the Direct Loan or FFEL programs to a
first-year, first-time borrower as described in 34 CFR 682.604(c) and
34 CFR 685.303(b)(4) is 30 days after the first day of the student's
program of study.
(g) Late disbursements--(1) Ineligible students who may receive a
late disbursement. An institution may make a late disbursement under
paragraph (g)(2) of this section, if the student became ineligible
solely because--
(i) For purposes of the Direct Loan and FFEL programs, the student
is no longer enrolled at the institution as at least a half-time
student for the loan period; and
(ii) For purposes of the Federal Pell Grant, FSEOG, and Federal
Perkins Loan programs, the student is no longer enrolled at the
institution for the award year.
(2) Conditions for late disbursements. An institution may disburse
funds under a title IV, HEA program to an ineligible student and to the
parent of an ineligible student as described in
[[Page 60606]]
paragraph (g)(1) of this section if, before the date the student became
ineligible--
(i) The institution received a SAR from the student or an ISIR from
the Secretary and the SAR or ISIR has an official expected family
contribution calculated by the Secretary; and
(ii)(A) For a Direct Loan Program loan, the institution created the
electronic origination record for that loan. An institution may not
make a late second or subsequent disbursement of a Direct Subsidized or
Direct Unsubsidized loan unless the student has graduated or
successfully completed the period of enrollment for which the loan was
intended;
(B) For an FFEL Program loan, the institution certified an
application for that loan. An institution may not make a late second or
subsequent disbursement of a Stafford loan unless the student has
graduated or successfully completed the period of enrollment for which
the loan was intended;
(C) For a Direct Loan or FFEL Program loan, the student completed
the first 30 days of his or her program of study if the student was a
first-year, first-time borrower as described in 34 CFR 682.604(c)(5) or
685.303(b)(4);
(D) For a Federal Pell Grant Program award, the institution
received a valid SAR from the student or a valid ISIR from the
Secretary; and
(E) For a Federal Perkins Loan Program loan or an FSEOG Program
award, the student was awarded a loan or grant.
(3) Making a late disbursement. If a student or a parent borrower
qualifies for a late disbursement under paragraphs (g) (2) and (3) of
this section, the institution--
(i) May make that late disbursement of title IV, HEA program funds
only if the funds are used to pay for educational costs that the
institution determines the student incurred for the period in which the
student was enrolled and eligible; and
(ii) Must make the late disbursement no later than 90 days after
the date that student becomes ineligible under paragraph (g)(1) of this
section.
(Authority: 20 U.S.C. 1094)
Sec. 668.165 Notices and authorizations.
(a) Notices. (1) Before an institution disburses title IV, HEA
program funds for any award year, the institution must notify a student
of the amount of funds that the student or his or her parent can expect
to receive under each title IV, HEA program, and how and when those
funds will be disbursed. If those funds include Direct Loan or FFEL
Program funds, the notice must indicate which funds are from subsidized
loans and which are from unsubsidized loans.
(2) If an institution credits a student's account at the
institution with Direct Loan, FFEL, or Federal Perkins Loan Program
funds, the institution must notify the student, or parent of--
(i) The date and amount of the disbursement;
(ii) The student's right, or parent's right to cancel all or a
portion of that loan or loan disbursement and have the loan proceeds
returned to the holder of that loan. However, the institution does not
have to provide this information with regard to FFEL Program funds
unless the institution received the loan funds from a lender through an
EFT payment or master check; and
(iii) The procedures and the time by which the student or parent
must notify the institution that he or she wishes to cancel the loan or
loan disbursement.
(3) The institution must send the notice described in paragraph
(a)(2) of this section--
(i) No earlier than 30 days before and no later than 30 days after
crediting the student's account at the institution; and
(ii) Either in writing or electronically. If the institution sends
the notice electronically, it must require the recipient of the notice
to confirm receipt of the notice and must maintain a copy of that
confirmation.
(4) (i) A student or parent must inform the institution if he or
she wishes to cancel all or a portion of a loan or loan disbursement.
(ii) The institution must return the loan proceeds, cancel the
loan, or do both, in accordance with applicable program regulations if
the institution receives a loan cancellation request either--
(A) Within 14 days after the date the institution sends the notice
described in paragraph (a)(2) of this section; or
(B) If the institution sends the notice described in paragraph
(a)(2) of this section more than 14 days prior to the first day of the
payment period, by the first day of the payment period.
(iii) If a student or parent requests a loan cancellation after the
period set forth in paragraph (a)(4)(ii) of this section, the
institution may return the loan proceeds, cancel the loan, or do both,
in accordance with applicable program regulations.
(5) An institution must inform a student or parent in writing or
electronically regarding the outcome of any cancellation request.
(b) Student or parent authorizations. (1) If an institution obtains
written authorization from a student or parent, as applicable, the
institution may--
(i) Disburse title IV, HEA program funds to a bank account
designated by the student or parent;
(ii) Use the student's or parent's title IV, HEA program funds to
pay for charges described in Sec. 668.164(d)(2) that are included in
that authorization; and
(iii) Except if prohibited by the Secretary under the reimbursement
method, hold on behalf of the student or parent any title IV, HEA
program funds that would otherwise be paid directly to the student or
parent under Sec. 668.164(e).
(2) In obtaining the student's or parent's authorization to perform
an activity described in paragraph (b)(1) of this section, an
institution--
(i) May not require or coerce the student or parent to provide that
authorization;
(ii) Must allow the student or parent to cancel or modify that
authorization at any time; and
(iii) Must clearly explain how it will carry out that activity.
(3) A student or parent may authorize an institution to carry out
the activities described in paragraph (b)(1) of this section for the
period during which the student is enrolled at the institution.
(4)(i) If a student or parent modifies an authorization, the
modification takes effect on the date the institution receives the
modification notice.
(ii) If a student or parent cancels an authorization to use title
IV, HEA program funds to pay for authorized charges under
Sec. 668.164(d)(2), the institution may use title IV, HEA program funds
to pay only those authorized charges incurred by the student before the
institution received the notice.
(iii) If a student or parent cancels an authorization to hold title
IV, HEA program funds under paragraph (b)(1)(iii) of this section, the
institution must pay those funds directly to the student or parent as
soon as possible but no later than 14 days after the institution
receives that notice.
(5) If an institution holds excess student funds under paragraph
(b)(1)(iii) of this section, the institution must--
(i) Identify the amount of funds the institution holds for each
student or parent in a subsidiary ledger account designed for that
purpose;
(ii) Maintain, at all times, cash in its bank account in an amount
at least equal to the amount of funds the institution holds for the
student; and
(iii) Notwithstanding any authorization obtained by the institution
under this paragraph, pay any remaining balance on loan funds by the
end of the loan period and any remaining other title IV, HEA program
funds by the end of the last payment
[[Page 60607]]
period in the award year for which they were awarded.
(Authority: 20 U.S.C. 1094)
Sec. 668.166 Excess cash.
(a) General. (1) The Secretary considers excess cash to be any
amount of title IV, HEA program funds, that an institution does not
disburse to students or parents by the end of the third business day
following the date the institution received those funds from the
Secretary. Except as provided in paragraph (b) of this section, an
institution must return promptly to the Secretary any amount of excess
cash in its account or accounts.
(2) The provisions in this section do not apply to the title IV,
HEA program funds that an institution receives from the Secretary under
the just-in-time payment method.
(b) Excess cash tolerances. (1) If an institution draws down title
IV, HEA program funds in excess of its immediate cash needs, the
institution may maintain the excess cash balance in the account the
institution established under Sec. 668.164 only if--
(i) In the award year preceding that drawdown, the amount of that
excess cash balance is less than--
(A) For a period of peak enrollment at the institution during which
that drawdown occurs, three percent of its total prior-year drawdowns;
or
(B) For any other period, one percent of its total prior-year
drawdowns; and
(ii) Within the next seven days, the institution eliminates its
excess cash balance by disbursing title IV, HEA program funds to
students or parents for at least the amount of that balance.
(2) For the purposes of this section, a period of peak enrollment
at an institution occurs when at least 25 percent of the institution's
students start classes during a given 30-day period. For any award
year, an institution calculates the percentage of students who started
classes during a given 30-day period by--
(i) For the prior award year in which the 30-day period began,
determining the number of students who started classes during that
period;
(ii) Determining the total number of students who started classes
during the entire award year used in paragraph (b)(2)(i) of this
section;
(iii) Dividing the number of students in paragraph (b)(2)(i) of
this section by the number of students in paragraph (b)(2)(ii) of this
section; and
(iv) Multiplying the result obtained in paragraph (b)(2)(iii) of
this section by 100.
(3) For the purpose of determining the total amount of title IV,
HEA program funds under paragraph (b)(1)(i) of this section, an
institution that participates in the Direct Loan Program may include,
for the latest year for which the Secretary has complete data, the
total amount of loans guaranteed under the FFEL Program for students
attending the institution during that year.
(c) Consequences for maintaining excess cash balances. (1) If the
Secretary finds that an institution maintains in its account excess
cash balances greater than those allowed under paragraph (b) of this
section, the Secretary--
(i) As provided in paragraph (c)(2) of this section, requires the
institution to reimburse the Secretary for the costs the Secretary
deems to have incurred in making those excess funds available to the
institution; and
(ii) May initiate a proceeding to fine, limit, suspend, or
terminate the institution's participation in one or more title IV, HEA
programs under subpart G of this part.
(2) For the purposes of this section, upon a finding that an
institution has maintained excess cash, the Secretary--
(i) Considers the institution to have issued a check on the date
that the check cleared the institution's bank account, unless the
institution demonstrates to the satisfaction of the Secretary that it
issued the check shortly after the institution wrote the check; and
(ii) Calculates, or requires the institution to calculate, a
liability for maintaining excess cash balances in accordance with
procedures established by the Secretary. Under those procedures, the
Secretary assesses a liability that is equal to the difference between
the earnings that the excess cash balances would have yielded if
invested under the applicable current value of funds rate and the
actual interest earned on those balances. The current value of funds
rate is an annual percentage rate, published in a Treasury Financial
Manual (TFM) bulletin, that reflects the current value of funds to the
Department of Treasury based on certain investment rates. The current
value of funds rate is computed each year by averaging investment rates
for the 12-month period ending every September. The TFM bulletin is
published annually by the Department of Treasury. Each annual bulletin
identifies the current value of funds rate and the effective date of
that rate.
(Authority: 20 U.S.C. 1094)
Sec. 668.167 FFEL Program funds.
(a) Requesting FFEL Program funds. In certifying a loan application
for a borrower under Sec. 682.603--
(1) An institution may not request a lender to provide it with loan
funds by EFT or master check earlier than--
(i) Twenty-seven days after the first day of classes of the first
payment period for a first-year, first-time Federal Stafford Loan
Program borrower as defined in Sec. 682.604(c)(5); or
(ii) Thirteen days before the first day of classes for any
subsequent payment period for a first-year, first-time Federal Stafford
Loan Program borrower or for any payment period for all other Federal
Stafford Loan Program borrowers; and
(2) An institution may not request a lender to provide it with loan
funds by check requiring the endorsement of the borrower earlier than--
(i) The first day of classes of the first payment period for a
first-year, first-time Federal Stafford Loan Program borrower as
defined in Sec. 682.604(c)(5); or
(ii) Thirty days before the first day of classes for any subsequent
payment period for a first-year, first-time Federal Stafford Loan
Program borrower or for any payment period for all other Federal
Stafford borrowers; and
(3) (i) An institution may not request a lender to provide it with
loan funds by EFT or master check for any Federal PLUS Program loan
earlier than provided in paragraph (a)(1) of this section.
(ii) An institution may not request a lender to provide loan funds
by check requiring the endorsement of the borrower for any Federal PLUS
Program loan earlier than provided in paragraph (a)(2) of this section.
(b) Returning funds to a lender. (1) Except as provided in
paragraph (c) of this section, an institution must return FFEL Program
funds to a lender if the institution does not disburse those funds to a
student or parent for a payment period within--
(i) Ten business days following the date the institution receives
the funds if the lender provides those funds to the institution by EFT
or master check on or after July 1, 1997 but before July 1, 1999;
(ii) Three business days following the date the institution
receives the funds if the lender provides those funds to the
institution by EFT and master check on or after July 1, 1999; or
(iii) Thirty days after the institution receives the funds if a
lender provides those funds by a check payable to the borrower or
copayable to the borrower and the institution.
(2) If the institution does not disburse the loan funds as
specified in paragraph (b)(1) or (c) of this section, the institution
must return those funds to the lender promptly but no later than 10
business days after the date the
[[Page 60608]]
institution is required to disburse the funds.
(3) If an institution must return loan funds to the lender under
paragraph (b)(2) of this section and the institution determines that
the student is eligible to receive the loan funds, the school may
disburse the funds to the student or parent rather than return them to
the lender provided the funds are disbursed prior to the end of the
applicable timeframe under paragraph (b)(2) of this section.
(c) Delay in returning funds to a lender. An institution may delay
returning FFEL program funds to a lender for--
(1) Ten business days after the date set forth in paragraph (b)(1)
of this section if--
(i)(A) The institution does not disburse FFEL Program funds to a
borrower because the student did not complete the required number of
clock or credit hours in a preceding payment period; and
(B) The institution expects the student to complete required hours
within this 10-day period; or
(ii)(A) The student has not met all the FFEL Programs eligibility
requirements; and
(B) The institution expects the student to meet those requirements
within this 10-day period; or
(2) Thirty days after the date set forth in paragraph (b) of this
section for funds a lender provides by EFT or master check if the
Secretary places the institution on the reimbursement payment method
under paragraph (d) or (e) of this section.
(d) An institution placed under the reimbursement payment method.
(1) If the Secretary places an institution under the reimbursement
payment method for the Federal Pell Grant, Direct Loan or campus-based
programs, the institution--
(i) May not disburse FFEL Program funds to a borrower until the
Secretary approves a request from the institution to make that
disbursement for that borrower; and
(ii) If prohibited by the Secretary, may not certify a borrower's
loan application until the Secretary approves a request from the
institution to make that certification for that borrower.
(2) In order for the Secretary to approve a disbursement or
certification request from the institution, the institution must submit
documentation to the Secretary or entity approved by the Secretary that
shows that each borrower included in that request whose loan has not
been disbursed or certified is eligible to receive that disbursement or
certification.
(3) Pending the Secretary's approval of a disbursement or
certification request, the Secretary may--
(i) Prohibit the institution from endorsing a master check or
obtaining a borrower's endorsement of any loan check the institution
receives from a lender;
(ii) Require the institution to maintain loan funds that it
receives from a lender via EFT in a separate bank account that meets
the requirements under Sec. 668.164; and
(iii) Prohibit the institution from certifying a borrower's loan
application.
(e) An institution participating solely in the FFEL Programs. If
the FFEL Programs are the only title IV, HEA programs in which an
institution participates and the Secretary determines that there is a
need to monitor strictly the institution's participation in those
programs, the Secretary may subject the institution to the conditions
and limitations contained in paragraph (d) of this section.
(Authority: 20 U.S.C. 1094)
PART 674--FEDERAL PERKINS LOAN PROGRAM
5. The authority citation for part 674 continues to read as
follows:
Authority: 20 U.S.C. 1087aa-1087ii and 20 U.S.C. 421-429, unless
otherwise noted.
6. Section 674.2(a) is amended by adding the term ``Payment
period'' in alphabetical order and revising the introductory clause to
read as follows:
Sec. 674.2 Definitions.
(a) The definitions of the following terms used in this part are
set forth in subpart A of the Student Assistance General Provisions, 34
CFR part 668:
* * * * *
7. Section 674.2(b) is amended by removing the definition of the
term ``*Payment period''.
8. Section 674.16 is amended by removing in paragraphs (d) (1) and
(e) ``Sec. 668.165'' and adding, in its place, ``Sec. 668.164''; by
removing paragraph (g) and by redesignating paragraphs (h), (i), and
(j) as paragraphs (g), (h), and (i), respectively.
PART 675--FEDERAL WORK-STUDY PROGRAMS
9. The authority citation for part 675 continues to read as
follows:
Authority: 42 U.S.C. 2571-2756b, unless otherwise noted.
10. Section 675.2(a) is amended by revising the introductory clause
to read as follows:
Sec. 675.2 Definitions.
(a) The definitions of the following terms used in this part are
set forth in subpart A of the Student Assistance General Provisions, 34
CFR 668:
* * * * *
11. Section 675.2(b) is amended by removing the definition of the
term ``*Payment period''.
PART 676--FEDERAL SUPPLEMENTAL EDUCATIONAL OPPORTUNITY GRANT
PROGRAM
12. The authority citation for part 676 continues to read as
follows:
Authority: 20 U.S.C. 1070b-1070-3, unless otherwise noted.
13. Section 676.2(a) is amended by adding the term ``Payment
period'' in alphabetical order and revising the introductory clause to
read as follows:
Sec. 676.2 Definitions.
(a) The definitions of the following terms used in this part are
set forth in subpart A of the Student Assistance General Provisions, 34
CFR part 668:
* * * * *
14. Section 676.2(b) is amended by removing the definition of the
term ``*Payment period''.
* * * * *
Sec. 676.16 [Amended]
15. Section 676.16 is amended by removing in paragraph (c)
``Sec. 668.165'' and adding, in its place, ``Sec. 668.164''; by
removing paragraph (e) and by redesignating paragraphs (f) and (g) as
paragraphs (e) and (f), respectively.
PART 682--FEDERAL FAMILY EDUCATION LOAN (FFEL) PROGRAM
16. The authority citation for part 682 continues to read as
follows:
Authority: 20 U.S.C. 1071 to 1087-2, unless otherwise noted.
17. Section 682.200(a)(1) is amended by adding the term ``payment
period'' in alphabetical order and revising the introductory clause to
read as follows:
Sec. 682.200 Definitions.
(a)(1) The definitions of the following terms used in this part are
set forth in subpart A of the Student Assistance General Provisions, 34
CFR part 668:
* * * * *
18. Section 682.207 is amended by removing the word ``separate''
and adding, ``in accordance with Sec. 668.163 after the word
``maintained'' in paragraph (b)(1)(ii)(B); removing the word
``separate'', and adding ``in accordance with Sec. 668.163'' after the
word ``maintained'' in paragraph
[[Page 60609]]
(b)(1)(ii)(C); removing the word ``separate'' and adding ``in
accordance with Sec. 668.163'' after the word ``maintained'' in
paragraph (b)(1)(v)(B)(1); revising paragraphs (c) (3) and (4) and
adding new paragraph (c)(5); and revising paragraph (d) to read as
follows:
Sec. 682.207 Due diligence in disbursing a loan.
* * * * *
(c) * * *
(3) Disbursement must be made on a payment period basis in
accordance with the disbursement schedule provided by the school.
(4) If one or more scheduled disbursements have elapsed before a
lender makes a disbursement and the student is still enrolled, the
lender may include in the disbursement loan proceeds for previously
scheduled, but unmade, disbursements.
(5) A lender is not required to make more than one disbursement if
a school is not in a State.
(d)(1) A lender may disburse loan proceeds after the student has
ceased to be enrolled on at least a half-time basis.
(2) A disbursement described in paragraph (d)(1) of this section
may be made--
(i)(A) Only if the school certified the loan application and the
loan funds will be used to pay educational costs that the school
determines the student incurred for the period in which the student was
enrolled and eligible;
(B) Only if the student completed the first 30 days of his or her
program of study if the student was a first-year, first time borrower
as described in Sec. 682.604(c)(5) of this section; and
(C) Only if the student graduated or successfully completed the
period of enrollment for which the loan was intended, in the case of a
second or subsequent disbursement.
(3) The lender shall give notice to the school that the loan
proceeds have been disbursed in accordance with (d)(1) of this section
at the time the lender sends the loan proceeds to the school.
19. Section 682.603 is amended by amending paragraph (b)(4) by
adding the word ``and'' after the semicolon; revising paragraph (b)(5);
removing paragraph (b)(6); removing and reserving paragraph (c); and
revising paragraph (h)(1) to read as follows:
Sec. 682.603 Certification by a participating school in connection
with a loan application.
* * * * *
(b) * * *
(5) The schedule for disbursement of the loan proceeds, which must
reflect the delivery of the loan proceeds as set forth in
Sec. 682.604(c)(6).
* * * * *
(h) Requesting loan proceeds. (1) Pursuant to paragraph (b)(5) of
the section, a school may not request the disbursement by the lender
for loan proceeds earlier than the period specified in Sec. 668.167.
* * * * *
20. Section 682.604, paragraph (a) is amended by revising the
paragraph heading, designating the text as paragraph (a)(1), and adding
new paragraphs (a)(2) and (a)(3); paragraph (b) is amended by revising
the paragraph heading; paragraph (b)(2)(ii) is removed and reserved;
paragraph (b)(2)(iii) is amended by removing ``34 CFR Part 668'' and
adding, in its place, ``Sec. 668.26''; paragraph (c)(2)(i) is amended
by removing ``45'' and adding, in its place, ``30''; paragraph
(c)(2)(ii)(A) is amended by removing ``45'' and adding, in its place,
``30''; paragraph (c)(2)(ii)(B) is amended by removing
``668.165(b)(2)'' and adding, in its place, ``668.164(e)''; paragraphs
(c)(3)(i) and (ii) are revised; paragraph (c)(4) is amended by removing
``Sec. 682.605(c)'' and adding, in its place, ``Sec. 668.22(j)'';
paragraphs (c)(6) through (c)(9) are added; paragraph (d)(1)(i) is
amended by removing ``Sec. 668.165(c)(2)'' and adding, in its place,
``Sec. 668.164''; paragraph (d)(2) is revised; paragraph (d)(3) is
amended by removing ``or does not begin attendance on a delayed basis
as provided in Sec. 682.604(b)(2)(ii),'' and removing ``30 days after
the first day of that period of enrollment'' and adding, in its place,
``the period specified in Sec. 668.167''; and paragraph (e) is revised
to read as follows:
Sec. 682.604 Processing the borrower's loan proceeds and counseling
borrowers.
(a) General. (1) * * *
(2) Prior to a school delivering or crediting an FFEL loan account
by EFT or master check, the school must provide the student or parent
borrower with the notice as described under Sec. 668.165.
(3) If the school is placed under the reimbursement payment method
as provided under Sec. 668.162, a school shall not disburse a loan, as
provided in Sec. 668.167.
(b) Releasing loan proceeds. * * *
(c) * * *
(3) * * *
(i) Deliver the proceeds to the student or parent borrower as
specified in Sec. 668.164; or
(ii) Credit the student's account in accordance with paragraph
(d)(1) of this section and Sec. 668.164, notify the student or parent
borrower in writing that it has so credited that account, and deliver
to the student or parent borrower the remaining loan proceeds not later
than the timeframe specified in 668.164.
* * * * *
(c) * * *
(6) Notwithstanding any other provision of this section, unless
Sec. 682.207(c) (4) or (5) applies--
(i) If a loan period is more than one payment period, the school
shall deliver loan proceeds at least once in each payment period; and
(ii) If a loan period is one payment period, the school shall make
at least two deliveries of loan proceeds during that payment period.
The school may not make the second delivery until the calendar midpoint
between the first and last scheduled days of class of the loan period.
(7) If an educational program measures academic progress in credit
hours and does not use semesters, trimesters, or quarters, the school
may not deliver a second disbursement until the later of--
(i) The calendar midpoint between the first and last scheduled days
of class of the loan period; or
(ii) The date, as determined by the school, that the student has
completed half of the academic coursework in the loan period.
(8) If an educational program measures academic progress in clock
hours, the school may not deliver a second disbursement until the later
of--
(i) The calendar midpoint between the first and last scheduled days
of class of the loan period; or
(ii) The date, as determined by the school, that the student has
completed half of the clock hours in the loan period.
(9) The school must deliver loan proceeds in substantially equal
installments, and no installment may exceed one-half of the loan.
(d) * * *
(2) For purposes of paragraphs (c)(2)(i), (c)(2)(ii) and (c)(3) of
this section, a school may not deliver loan proceeds earlier than the
timeframe specified in Sec. 668.164.
* * * * *
(e) Processing a late disbursement.
(1) A school may process a late disbursement received from a lender
under Sec. 682.207(d) in accordance with Sec. 668.164(g).
(2) If the total amount of the late disbursement and all prior
disbursements is greater than that portion of the borrower's
educational charges, the school shall return the balance of the
borrower's loan proceeds to the lender with a notice certifying--
[[Page 60610]]
(i) The beginning and ending dates of the period during which the
borrower was enrolled at the school as an eligible student during the
loan period or payment period; and
(ii) The borrower's corrected financial need for the loan for that
period of enrollment or payment period.
* * * * *
PART 685--WILLIAM D. FORD FEDERAL DIRECT LOAN PROGRAM
21. The authority citation for Part 685 continues to read as
follows:
Authority: 20 U.S.C. 1087a et seq., unless otherwise noted.
22. Section 685.102 is amended in paragraph (a)(1) by adding the
term ``payment period'' in alphabetical order and revising the
introductory clause to read as follows:
Sec. 685.102 Definitions.
(a) (1) The definitions of the following terms used in this part
are set forth in subpart A of the Student Assistance General
Provisions, 34 CFR part 668:
* * * * *
23. Section 685.301 is amended by revising paragraph (b) to read as
follows:
Sec. 685.301 Origination of a loan by a Direct Loan Program school.
* * * * *
(b) Determining disbursement dates and amounts. (1) Before
disbursing a loan, a school that originates loans shall determine that
all information required by the loan application and promissory note
has been provided by the borrower and, if applicable, the student.
(2) Unless paragraph (b)(5), (6), or (7) of this section applies,
an institution shall disburse the loan proceeds on a payment period
basis in accordance with 34 CFR 668.164(b).
(3) Unless paragraph (b)(4), (5), or (6) of this section applies--
(i) If a loan period is more than one payment period, the school
shall disburse loan proceeds at least once in each payment period; and
(ii) If a loan period is one payment period, the school shall make
at least two disbursements during that payment period. The school may
not make the second disbursement until the calendar midpoint between
the first and last scheduled days of class of the loan period.
(4)(i) If one or more payment periods have elapsed before a school
makes a disbursement, the school may include in the disbursement loan
proceeds for completed payment periods; or
(ii) If the loan period is equal to one payment period and more
than one-half of it has elapsed, the school may include in the
disbursement loan proceeds for the entire payment period.
(5) If an educational program measures academic progress in credit
hours and does not use semesters, trimesters, or quarters, the school
may not make a second disbursement until the later of--
(i) The calendar midpoint between the first and last scheduled days
of class of the loan period; or
(ii) The date, as determined by the institution, that the student
has completed half of the academic coursework in the loan period.
(6) If an educational program measures academic progress in clock
hours, the school may not make a second disbursement until the later
of--
(i) The calendar midpoint between the first and last scheduled days
of class of the loan period; or
(ii) The date, as determined by the institution, that the student
has completed half of the clock hours in the loan period.
(7) The school must disburse loan proceeds in substantially equal
installments, and no installment may exceed one-half of the loan.
(8) A school not in a State is not required to make more than one
disbursement.
* * * * *
24. Section 685.303(d) is revised to read as follows:
Sec. 685.303 Processing loan proceeds.
* * * * *
(d) Late Disbursement. A school may make a late disbursement
according to the provisions found under 34 CFR 668.164(g).
25. Section 685.303(c) is amended by removing the citation
``668.165'' at the end of the paragraph and adding, in its place,
``668.164''.
Sec. 685.309 [Amended]
26. Section 685.309(e) is amended by removing the citation
``668.164'' at the end of the paragraph and adding, in its place,
``668.163''.
PART 690--FEDERAL PELL GRANT PROGRAM
27. The authority citation for part 690 continues to read as
follows:
Authority: 20 U.S.C. 1070a, unless otherwise noted.
28. Section 690.2 is amended by revising the section heading,
adding the term ``Payment period'' in alphabetical order in paragraph
(a) and revising the introductory clause of paragraph (a) to read as
follows:
Sec. 690.2 Definitions.
(a) The definitions of the following terms used in this part are
set forth in subpart A of the Student Assistance General Provisions, 34
CFR part 668:
* * * * *
Sec. 690.3 [Removed and reserved]
29. Section 690.3 is removed and reserved.
30. Section 690.75 is amended by removing paragraph (b) and by
redesignating paragraphs (c), (d), and (e) as paragraphs (b), (c), and
(d), respectively.
Sec. 690.78 [Amended]
31. Section 690.78 is amended by removing in paragraph (a)
``Sec. 668.165'' and adding, in its place, ``Sec. 668.164''.
[FR Doc. 96-30393 Filed 11-27-96; 8:45 am]
BILLING CODE 4000-01-P