[Federal Register Volume 82, Number 159 (Friday, August 18, 2017)]
[Rules and Regulations]
[Pages 39362-39363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17423]



34 CFR Part 668

[Docket ID ED-2017-OPE-0090]

Program Integrity: Gainful Employment

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Announcement of applicable dates; request for comments.


SUMMARY: The Department, in this document, establishes new deadlines 
for submitting notices of intent to file alternate earnings appeals and 
for submitting alternate earnings appeals. The Department also 
announces additional information that will be considered when 
evaluating alternate earnings appeals.

DATES:  We must receive comments on or before September 18, 2017.
    The deadline to submit a notice of intent to file an alternate 
earnings appeal is October 6, 2017. The deadline to file an alternate 
earnings appeal is February 1, 2018.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via U.S. mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by email or those submitted after the comment 
period. To ensure that we do not receive duplicate copies, please 
submit your comments only once. In addition, please include the Docket 
ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``Are you new to this site?''
     U.S. Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments, address them to Scott Filter, U.S. 
Department of Education, 400 Maryland Ave. SW., Room 6W253, Washington, 
DC 20202.
    Privacy Note: The Department's policy for comments received from 
members of the public (including comments submitted by mail, commercial 
delivery, or hand delivery) is to make these submissions available for 
public viewing in their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available on the internet.


[[Page 39363]]

Education, 400 Maryland Ave. SW., Room 6W253, Washington, DC 20202. 
Telephone: (202) 453-7249 or by email at: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-

SUPPLEMENTARY INFORMATION: On January 6, 2017, the Department announced 
dates by which institutions subject to the Department's gainful 
employment (GE) regulations must comply with certain provisions of the 
GE regulations relating to the submission of alternate earnings 
appeals. On June 15, 2017, the Department announced its intention to 
negotiate issues related to gainful employment. On July 5, 2017, the 
Department announced that it would publish a Federal Register document 
to establish a new deadline for institutions to submit alternate 
earnings appeals in light of the Court Order in American Association of 
Cosmetology Schools v. DeVos, Civil Action No. 17-0263, D.D.C. June 28, 
2017 (Court Order).
    The Department establishes October 6, 2017, as the deadline for all 
programs to file a notice of intent to file alternate earnings appeal. 
The Department establishes February 1, 2018, as the deadline for all 
programs to file an alternate earnings appeal. However, programs are 
encouraged to submit their appeals before this deadline. These 
deadlines and the associated timelines are being established on a one-
time basis to comply with the Court Order. Although the Court Order 
only applies to institutions that are members of the American 
Association of Cosmetology Schools, the Court noted concerns with the 
response threshold required for the graduate surveys used for all 
programs in the alternate earnings appeal under 34 CFR 668.406, and the 
Department is establishing these new deadlines for all programs subject 
to the GE regulations in 34 CFR part 668. Institutions that have 
already submitted a notice of intent to file an alternate earnings 
appeal, or an alternate earnings appeal, do not have to resubmit those 
items or amend their alternate earnings appeal in connection with the 
modified submission requirements described below. Institutions that 
wish to supplement an alternate earnings appeal that has already been 
submitted may do so, and should contact Department staff to make those 
arrangements on or before October 6, 2017.
    To further comply with the Court Order, for alternate earnings 
appeals based on a graduate survey, the Department will not enforce 
Sec.  668.406(b)(3) or (c) to the extent these provisions require that 
a graduate survey contain responses from all students that are not 
exempted under Sec.  668.404(e), nor will the Department require a 50 
percent threshold response rate. Instead, the Department will evaluate 
all graduate surveys, regardless of response rate, provided the 
submissions include the number of responses, the response rate, and a 
nonresponse bias analysis, as well as any other information the 
Department requests. The Department will consider the response rate, 
the nonresponse bias analysis, and any other information requested by 
the Secretary that indicates that the responses are a reliable measure 
of the program graduates' true earnings.
    Furthermore, for alternate earnings appeals based on data from 
State-sponsored data systems, the Department will not enforce Sec.  
668.406(b)(3) or (d) to the extent these provisions require that an 
appeal include earnings data for all students that are not exempted 
under Sec.  668.404(e), nor will the Department enforce Sec.  
668.406(d) to the extent that provision requires a 50 percent threshold 
to be met, or the earnings of 30 students to be included, before the 
Department will consider an alternate earnings appeal. Instead, the 
Department will consider the validity of appeals using State-sponsored 
data on a case-by-case basis, taking into account the response rate and 
other information requested by the Secretary.
    In modifying the alternate appeals submission requirements, the 
Department seeks to reduce the burden on institutions in conducting 
these appeals while still ensuring that institutions provide enough 
information for the Department to determine whether the program 
graduates for whom alternate earnings data are provided are a valid 
representation of the overall cohort. Institutions must still submit 
the certifications and attestations required by Sec.  668.406(c)(2) and 
(d)(3), as applicable, except to the extent inconsistent with anything 
in this document.
    Institutions intending to file a notice of intent to appeal do not 
have to issue warnings to students unless they fail to timely submit an 
alternate earnings appeal or the appeal is resolved.
    We invite your comments on this action. We will consider these 
comments in determining whether to take any future action in connection 
with the upcoming negotiated rulemaking.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., Braille, large print, 
audiotape, or compact disc) on request to the program contact person 
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Portable Document Format (PDF). To use PDF you 
must have Adobe Acrobat Reader, which is available free at this site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature of this site, you can limit your search to documents published 
by the Department.

    Dated: August 14, 2017.
Betsy DeVos,
Secretary of Education.
[FR Doc. 2017-17423 Filed 8-17-17; 8:45 am]