[Federal Register Volume 73, Number 251 (Wednesday, December 31, 2008)]
[Proposed Rules]
[Pages 80314-80317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31176]


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DEPARTMENT OF EDUCATION

34 CFR Chapter VI


Office of Postsecondary Education; Notice of Negotiated 
Rulemaking for Programs Authorized Under Title IV of the Higher 
Education Act of 1965, as Amended

AGENCY: Department of Education.

ACTION: Notice of establishment of negotiated rulemaking committees.

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SUMMARY: We announce our intention to establish five negotiated 
rulemaking committees to prepare proposed regulations under Title IV of 
the Higher Education Act of 1965, as amended (HEA). Each committee will 
include representatives of organizations or groups with interests that 
are significantly affected by the subject matter of the proposed 
regulations. We request nominations for individual negotiators who 
represent key stakeholder constituencies that are involved in the 
student financial assistance and grant programs authorized under Title 
IV of the HEA to serve on these committees.

DATES: We must receive your nominations for negotiators to serve on the 
committees on or before January 23, 2009.

ADDRESSES: Please send your nominations for negotiators to Patty Chase, 
U.S. Department of Education, 1990 K Street, NW., room 8034, 
Washington, DC 20006, or by fax at (202) 502-7874. You may also e-mail 
your nominations to [email protected]. Nominees will be notified by 
letter whether or not they have been selected as negotiators, as soon 
as the Department's review process is completed.

FOR FURTHER INFORMATION CONTACT: For information about the nomination 
submission process contact: Wendy Macias, U.S. Department of Education, 
1990 K Street, NW., room 8017, Washington, DC 20006. Telephone: (202) 
502-7526. You may also e-mail your questions about the nomination 
submission process to: [email protected].
    For information about negotiated rulemaking in general, see The 
Negotiated Rulemaking Process for Title IV Regulations, Frequently 
Asked Questions at http://www.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html. For further information contact: Wendy Macias, 
U.S. Department of Education, 1990 K Street, NW., room 8017, 
Washington, DC 20006. Telephone: (202) 502-7526. You may also e-mail 
your questions about negotiated rulemaking to: [email protected].
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) by contacting Wendy Macias at the address, telephone number, 
or e-mail address listed above.

SUPPLEMENTARY INFORMATION: On September 8, 2008, we published a notice 
in the Federal Register (73 FR 51990) announcing our intent to 
establish negotiated rulemaking committees to develop proposed 
regulations to implement (1) the changes made to the HEA by the Higher 
Education Opportunity Act of 2008 (HEOA), Public Law 110-315, that 
affect programs authorized under Title IV of the HEA and, (2) possibly, 
the provision added to section 207(c) of the HEA by the HEOA that 
requires the Secretary to submit to a negotiated rulemaking process any 
regulations the Secretary chooses to develop under amended section 
207(b)(2) of the HEA, regarding the prohibition on a teacher 
preparation program from which the State has withdrawn approval or 
terminated financial support from accepting or enrolling any student 
who received Title IV aid. We announced our intent to develop these 
proposed regulations by following the negotiated rulemaking procedures 
in section 492 of the HEA. The notice also announced a series of six 
regional hearings at which interested parties could suggest topics for 
consideration for action by the negotiating committees. We invited 
parties to submit topics for consideration in writing, as well. We 
heard testimony and received written comments from approximately 250 
people. Transcripts from the hearings can be found at http://www.ed.gov/HEOA.
    Regulatory Issues: After consideration of the information received 
at the regional hearings and in writing, we have decided to establish 
the following five negotiating committees:
     Team I--Loans-Lender/General Loan Issues;
     Team II--Loans-School-based Loan Issues;
     Team III--Accreditation;
     Team IV--Discretionary Grants;
     Team V--General and Non-Loan Programmatic Issues.
    We list the topics each committee is likely to address elsewhere in 
this notice under Committee Topics.
    Because of the large volume of changes made by the HEOA that must 
be implemented through negotiated rulemaking, not all provisions will 
be regulated at this time. In particular, the provisions affecting 
foreign schools (the majority of which are not effective until July 1, 
2010) and unfunded programs will be regulated through the negotiated 
rulemaking process at a later date. For Team III--Accreditation, in 
addition to the provisions of the HEOA, we have included several issues 
identified during the 2007 negotiated rulemaking process, which did not 
result in published regulations.
    As we did not receive any requests from the public to negotiate the 
provision added to section 207(c) of the HEA, and the Secretary has 
determined that it is not necessary to issue regulations in this area 
at this time, we will not be negotiating this provision of the HEOA in 
these negotiated rulemaking sessions. Regulations implementing HEOA 
changes to other areas of Title II of the HEA, as well as Titles III, 
V, VI, and VII, and those areas of Title I that do not affect the Title 
IV programs, will be implemented either through notice-and-comment 
rulemaking or, where the regulations will merely reflect the changes to 
the HEA and not expand upon those changes, without notice and comment. 
The only exception will be in the case of regulations that are needed 
to implement the initial grant competition under a new or substantially 
revised program authority; in these situations section 437(d)(1) of the 
General Education Provisions Act (20 U.S.C. Sec.  1232(d)(1)) permits 
the Secretary to issue regulations without first soliciting public 
comment.
    We intend to select participants for the negotiated rulemaking 
committees that represent the interests significantly affected by the 
proposed regulations. In so doing, we will follow the new requirement 
in section 492(b)(1) of the HEA that the individuals selected must have 
demonstrated expertise or experience in the relevant subjects under 
negotiation. We will also select

[[Page 80315]]

individual negotiators who reflect the diversity among program 
participants, in accordance with section 492(b)(1). Our goal is to 
establish committees that will allow significantly affected parties to 
be represented while keeping the committee size manageable.
    The committees may create subgroups on particular topics that would 
involve additional individuals who are not members of the committees. 
Individuals who are not selected as members of the committees will be 
able to attend the meetings, have access to the individuals 
representing their constituencies, and participate in informal working 
groups on various issues between the meetings. The committee meetings 
will be open to the public.
    The Department has identified the constituencies listed below as 
having interests that are significantly affected by the subject matter 
of the negotiated rulemaking process. The Department plans to seat as 
negotiators individuals from organizations or groups representing each 
of the constituencies. The Department anticipates that individuals from 
organizations or groups representing each of these constituencies will 
participate as members of one or more committees, except where noted. 
These constituencies are:
     Students;
     Legal assistance organizations that represent students;
     Financial aid administrators at institutions of higher 
education;
     Business officers and bursars at institutions of higher 
education;
     Institutional servicers (including collection agencies);
     State higher education executive officers;
     State Attorneys General and other appropriate State 
officials;
     State student grant agencies;
     Business and industry;
     Institutions of higher education eligible to receive.
    Federal assistance under Title III, Parts A and B, and Title V of 
the HEA, which include Historically Black Colleges and Universities, 
Hispanic-Serving Institutions, American Indian Tribally Controlled 
Colleges and Universities, Alaska Native and Native Hawaiian-Serving 
Institutions, and other institutions with a substantial enrollment of 
needy students as defined in Title III of the HEA:
     Two-year public institutions of higher education;
     Four-year public institutions of higher education;
     Private, non-profit institutions of higher education;
     Private, for-profit institutions of higher education;
     Guaranty agencies and guaranty agency servicers (including 
collection agencies);
     Lenders, secondary markets, and loan servicers;
     Regional accrediting agencies;
     National accrediting agencies;
     Specialized accrediting agencies;
     State approval agencies;
     State student grant agencies;
     Special populations, including migrant and seasonal 
farmworkers, and entities that provide outreach and support services 
(for Team IV--Discretionary Grants);
     Individuals with intellectual disabilities (for Team V--
General and Non-Loan Programmatic Issues, Student eligibility);
     Digital content owners (for Team V--General and Non-Loan 
Programmatic Issues, Peer-to-peer file sharing/ copyrighted material);
     Technology providers (for Team V--General and Non-Loan 
Programmatic Issues, Peer-to-peer file sharing/copyrighted material);
     Law enforcement (for Team V--General and Non-Loan 
Programmatic Issues, Campus safety issues);
     Campus safety (for Team V--General and Non-Loan 
Programmatic Issues, Campus safety issues).
    The negotiation of proposed regulations for the following issues on 
the Team V agenda requires the representation of some very specific 
constituencies who are affected parties for purposes of these issues 
only:
     Title IV eligibility for individuals with intellectual 
disabilities;
     Peer-to-peer file sharing/copyrighted material; and
     Campus safety (Hate crime reporting, Emergency response 
and evacuation procedures, Disclosure of fire safety standards and 
measures, and Missing person procedures).
    For these issues, we will be selecting ``single-issue negotiators'' 
whose participation on the committee will be limited to the negotiation 
of only the specific issue. As previously noted, the committee may form 
subgroups for preliminary discussions of these, or other, issues to 
include individuals who are not members of the committee but who have 
expertise that would be helpful.
    The goal of each committee is to develop proposed regulations that 
reflect a final consensus of the committee. Consensus means that there 
is no dissent by any member of the negotiating committee. An individual 
selected as a negotiator will be expected to represent the interests of 
their organization or group. If consensus is reached, all members of 
the organization or group represented by a negotiator are bound by the 
consensus and are prohibited from commenting negatively on the 
resulting proposed regulations. The Department will not consider any 
such negative comments that are submitted by members of such an 
organization or group.
    Nominations should include:
     The name of the nominee, the organization or group the 
nominee represents, and a description of the interests that the nominee 
represents;
     Evidence of the nominee's expertise or experience in the 
subject, or subjects, to be negotiated;
     Evidence of support from individuals or groups of the 
constituency that the nominee will represent;
     The nominee's commitment that he or she will actively 
participate in good faith in the development of the proposed 
regulations; and
     The nominee's contact information, including address, 
phone number, fax number, and e-mail address.
    For a better understanding of the process, nominees should review 
The Negotiated Rulemaking Process for Title IV Regulations, Frequently 
Asked Questions at http://www.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html prior to committing to serve as a negotiator.

Committee Topics

    The topics the committees are likely to address are:

Team I--Loans--Lender/General Loan Issues

     Loan discharges based on total and permanent disability 
(including Perkins Loans) (HEOA section 437);
     Federal PLUS loan repayment, post-half-time enrollment 
deferment, and interest capitalization (HEOA section 424);
     Consumer credit reporting after loan rehabilitation/
Eligibility for loan rehabilitation (HEOA section 426);
     FFEL and Direct Loan teacher loan forgiveness (HEOA 
sections 429 and 454);
     Applicability of the Servicemembers Civil Relief Act to 
Federal Family Education Loan (FFEL) and Direct Loan borrowers and 
related FFEL lender special allowance payment calculations on affected 
loans (PLUS endorsers) (HEOA section 422);
     Borrower eligibility for deferment (HEOA section 422);
     Changes to prohibited inducement provisions governing FFEL 
lenders and guaranty agencies (HEOA sections 422 and 436);
     FFEL Consolidation Loan-borrower eligibility (HEOA section 
425);

[[Page 80316]]

     New audit requirement for FFEL school lenders and Eligible 
Lender Trustees (ELTs) originating FFEL loans for an institution or 
school-affiliated organization (HEOA section 436);
     Required education loan borrower disclosures by lenders 
(HEOA section 120);
      Definitions (Education loan, Private education loan, 
Lender, Preferred lender arrangement);
      Required lender disclosures;
      Required lender reporting and certification;
     Lender forbearance information and contact requirements 
(HEOA section 422);
     Guaranty agency notifications to borrowers in default 
(HEOA section 422);
     Financial and economic literacy information for 
rehabilitated borrowers (HEOA section 426);
     Required lender disclosures to FFEL borrowers (HEOA 
section 434);
      Required FFEL (non-consolidation) disclosures before loan 
disbursement;
      Required FFEL (non-consolidation) borrower disclosures 
before repayment;
      Special disclosure rules on PLUS and Unsubsidized loans;
      New borrower disclosures during repayment;
     Notification to a FFEL borrower when the transfer, sale, 
or assignment of a loan will result in a change in the party to whom 
the borrower must send payments (HEOA section 422);
     FFEL Consolidation Loan-application disclosures to Perkins 
Loan and Direct Loan borrowers (HEOA section 425).
     Consumer education information provided by guaranty 
agencies (HEOA section 435).

Team II--Loans--School-based Loan Issues

     Cohort default rate calculation, default prevention plans, 
and institutional eligibility (HEOA section 436);
     Exit counseling (HEOA section 488(b));
     Entrance counseling (HEOA section 488(g));
     Program Participation Agreement (HEOA section 493);
      Code of Conduct;
      Preferred Lender Lists;
      Private Education Loan Certification;
     Required education loan borrower disclosures by 
institutions of higher education, and institution-affiliated 
organizations (HEOA section 120);
      Definitions (Covered institution, Institution-affiliated 
organization, Officer, Agent);
      Required borrower disclosures by covered institutions and 
institution-affiliated organizations that participate in a preferred 
lender arrangement;
      Required reporting by covered institutions and 
institution-affiliated organizations;
      Other covered institution and institution-affiliated 
requirements;
     Information and dissemination activities--terms and 
conditions under which students receive FFEL, Direct Loans and Perkins 
Loans (HEOA section 488(a));
     Disclosure of reimbursements for service on advisory 
boards (HEOA section 1011);
     Direct Loan borrower disclosures by Direct Loan schools 
(HEOA section 451);
      Perkins Loan Program;
      Mandatory assignment (HEOA section 463);
      Reinstatement of loans discharged due to death or 
disability if the borrower receives another Title IV loan; if the 
borrower earns income in excess of the poverty line; or if the 
Secretary determines it is necessary to resume collection (HEOA section 
464);
      Expansion of teacher, Head Start, and law enforcement 
cancellation categories (HEOA section 465);
      Addition of new public service cancellation categories 
(HEOA section 465);
      Military service cancellation (HEOA section 465).

Team III--Accreditation

     Distance education and correspondence education (HEOA 
sections 495(1)(A) and (5));
     Due process and appeals (HEOA section 495(1)(C));
     Accreditation team members (HEOA section 495(2)(A));
     Operating Procedures (HEOA section 495(2)(C));
      Growth monitoring;
      Teach-out plan approval;
      Summary of agency actions;
      Confirmation of disclosure of transfer of credit policies 
and criteria.
    (The following issues are not from changes made by the HEOA, but 
were identified during the 2007 negotiated rulemaking process, which 
did not result in published regulations.)
     Recognition when not fully compliant;
     Demonstration of compliance within 12 months;
     Direct assessment programs definition;
     Definition of recognition;
     Substantive change;
     Monitoring throughout period;
     Subparts C and D--Recognition process, limitation, 
suspension and termination;
     Recordkeeping;
     Confidentiality.

Team IV--Discretionary Grants

     TRIO Programs;
      Branch campuses and different populations (HEOA section 
403(a));
      Appeals process for unsuccessful TRIO grant applicants 
(HEOA section 403(a));
      Revised outcome criteria and measurement of progress 
(HEOA section 403(a));
      Foster care and homeless youth (HEOA section 403(a));
      Required services and permissible services (HEOA section 
403);
     GEAR UP (HEOA section 404);
      Priority;
      Funding rules;
      Duration of awards;
      Revised definition of partnerships;
      Changes to matching funds;
      Waiver of matching funds;
      Revision to required and allowable activities under GEAR 
UP;
      Revised scholarships;
      Establishment of a scholarship trust fund;
      Redistribution or return to the Department of Education 
of unused scholarship funds after six years;
     Special Programs for Students Whose Families are Engaged 
in Migrant and Seasonal Farmwork (HEOA section 408);
      High school equivalency program eligibility and 
activities;
      College assistance migrant program eligibility and 
activities;
      Reservation and allocation of funds.

Team V--General and Non-Loan Programmatic Issues

     Readmission requirements for servicemembers (HEOA section 
487);
     90/10 rule (HEOA section 493);
     Institutional requirements for teach-out/eligibility and 
certification procedures-treatment of teach-outs (HEOA sections 493(f) 
and 496);
     Financial assistance for individuals with intellectual 
disabilities (HEOA sections 485(a)(8) and 709) (including ``student 
with an intellectual disability'' and ``comprehensive transition and 
postsecondary programs for students with intellectual disabilities,'' 
definitions in Title VII of the HEA that apply);
     Definition of baccalaureate ``liberal arts'' programs 
offered by proprietary schools (HEOA section 102(d)(1)(A)(i));

[[Page 80317]]

     Consumer information;
      Peer-to-peer file sharing/copyrighted material (HEOA 
sections 488(a) and 493);
      Institutional plans for improving the academic program 
(HEOA section 488(a));
      Placement of and types of employment obtained by 
graduates of degree or certificate programs/types of graduate and 
professional education (HEOA section 488(a));
      Retention rates (HEOA section 488(a));
      Hate crime reporting (HEOA section 488(e));
      Emergency response and evacuation procedures (HEOA 
section 488(e));
      Disclosure of fire safety standards and measures (HEOA 
sections 488(a));
      Missing person procedures (HEOA section 488(g));
     Year-round Pell Grant (HEOA section 401);
     Pell Grants and Children of Soldiers (HEOA section (HEOA 
section 401);
     TEACH Grants-extenuating circumstances (HEOA section 
412(a)(1));
     Federal Work Study (FWS);
      Definition of community service (HEOA section 441(2));
      Grants for FWS Program (HEOA section 443);
      Flexible use of funds (HEOA section 444);
      Additional funds for off-campus community service (HEOA 
section 446);
      Work Colleges (HEOA section 447);
     LEAP/Grants for Access and Persistence (GAP) Program (HEOA 
section 407);
      Notification to students;
      GAP non-Federal share;
      Application for an allotment under GAP;
      Roles of partners in GAP;
      GAP Program activities;
      Applicability of LEAP Program requirements in GAP;
      GAP maintenance of effort requirement.
    These topics are tentative. Topics may be added or removed as the 
process continues.

Schedule for Negotiations

    We anticipate that negotiations for these committees will begin in 
February 2009, with each committee meeting for three sessions of 
approximately three days at roughly monthly intervals. The committees 
will meet in the Washington, DC area. The dates and locations of these 
meetings will be published in a subsequent notice in the Federal 
Register, and will be posted on the Department's Web site at: http://www.ed.gov/HEOA. Please note that the upcoming personnel changes in the 
executive branch of the Federal government may affect these plans.
    The schedule for negotiations has been developed to ensure 
publication of the final regulations by the November 1 statutory 
deadline for publishing student financial assistance final regulations 
(to be addressed by Teams I, II, III, and V). Although not subject to 
the November 1 statutory deadline, the schedule for the Title IV 
discretionary grant programs (to be addressed by Team IV) will provide 
for the publication of regulations in time for competitions to be held 
during fiscal year 2010.

Electronic Access to This Document

    You may view this document, in text or Adobe Portable Document 
Format (PDF), on the Internet at the following site: http://www.ed.gov/news/fedregister. To use PDF you must have Adobe Acrobat Reader, which 
is available free at this site. If you have questions about using PDF, 
call the U.S. Government Printing Office toll free at 1-888-293-6498; 
or in the Washington, DC area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.


    Program Authority: 20 U.S.C. 1098a.

    Dated: December 24, 2008.
Vince Sampson,
Deputy Assistant Secretary for Postsecondary Education.
[FR Doc. E8-31176 Filed 12-30-08; 8:45 am]
BILLING CODE 4000-01-P