[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Rules and Regulations]
[Pages 57138-57147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20378]
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DEPARTMENT OF EDUCATION
34 CFR Chapter VI
[Docket ID ED-2020-OPE-0031]
Final Priorities, Requirements, and Definitions--Fund for the
Improvement of Postsecondary Education--Open Textbooks Pilot Program
AGENCY: Office of Postsecondary Education, Department of Education.
ACTION: Final priorities, requirements, and definitions.
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SUMMARY: The Assistant Secretary for Postsecondary Education announces
priorities, requirements, and definitions for the Open Textbooks Pilot
(OTP) program conducted under the Fund for the Improvement of
Postsecondary Education (FIPSE), CFDA number 84.116T. The Assistant
Secretary may use one or more of these priorities, requirements, and
definitions for competitions in fiscal year (FY) 2020 and later years.
We take this action to focus Federal financial assistance on the
creation of new open textbooks (as defined in this notice) and to
expand the use of open textbooks in courses that are part of a degree-
granting program, particularly those with high enrollments. We intend
this action to further develop and identify programs and practices that
improve instruction and student learning outcomes, as well as increase
access, affordability, and completion rates, for students seeking
postsecondary education degrees through the development, enhancement,
and use of open textbooks.
DATES: These priorities, requirements, and definitions are effective
October 15, 2020.
FOR FURTHER INFORMATION CONTACT: Stacey Slijepcevic, U.S. Department of
Education, 400 Maryland Avenue SW, Room 268-34, Washington, DC 20202.
Telephone: (202) 453-6150. Email: [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-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Purpose of Program: The OTP program supports projects at
institutions of higher education (IHEs) that create new open textbooks
and expand the use of open textbooks in courses that are part of a
degree-granting program, particularly those with high enrollments.
Applicants are encouraged to develop projects that demonstrate the
greatest potential to achieve the highest level of savings for students
through sustainable, expanded use of open textbooks in high-enrollment
courses (as defined in this notice) or in programs that prepare
individuals for in-demand fields.
Program Authority: 20 U.S.C. 1138-1138d.
We published a notice of proposed priorities, requirement, and
definitions (NPP) for this program in the Federal Register on March 31,
2020 (85 FR 17805). That document contained background information and
our reasons for proposing the particular proposed priorities,
requirement, and definitions.
There are differences between the proposed priorities, requirement,
and definitions and the final priorities, requirements, and definitions
as discussed in the Analysis of Comments and Changes section elsewhere
in this document.
Public Comment: In response to our invitation in the NPP, 78
parties submitted comments on the proposed priorities, requirement, and
definitions.
We group major issues according to subject. We discuss other
substantive issues under the title of the item to which they pertain.
Generally, we do not address technical and other minor changes, or
suggested changes the law
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does not authorize us to make under the applicable statutory authority.
In addition, we do not address general comments that raised concerns
not directly related to the proposed priorities, requirement, or
definitions.
Analysis of Comments and Changes: An analysis of the comments and
of any changes in the priorities, requirements, and definitions since
publication of the NPP follows.
Award Size
Comment: In the NPP, the Department specifically requested feedback
from the public on a variety of items that are established in the
notice inviting applications (NIA) for this program, namely the maximum
award, range in award size, estimated number of awards, and estimated
average award. Most commenters suggested that the Department establish
a maximum award, range of awards, and average award in the NIA that
would support a greater number of smaller awards than the Department
supported through the FY 2018 competition, which established a maximum
award of $4,950,000. The maximum award amounts suggested by commenters
ranged from $500,000 to $2 million, with the latter amount the most
common maximum award suggested by the commenters. Many commenters
suggested that the Department adopt a tiered framework in which a
different maximum award would apply to consortia than would apply to
single institution applicants. Most commenters encouraged the
Department to support a greater number of awards, though most
commenters were not specific. Of those comments that were specific,
there was substantial variation. For example, one commenter suggested
3-6 awards while another suggested that 15-20 awards would be ideal. A
few commenters urged the Department to ensure that adequate funding is
provided to be impactful and to support the software technology that is
necessary under this program. Finally, many commenters suggested that
the Department shorten the project period to either 24 or 36 months to
serve a number of goals such as increasing the amount available to the
grantees on an annual basis, and enabling the program to produce
results more quickly.
Discussion: We appreciate these comments and have relied on this
feedback to establish a funding framework in the FY 2020 OTP NIA
published elsewhere in this issue of the Federal Register. Although we
appreciate the suggestion that we establish a tiered funding structure
to support larger awards for consortia and smaller awards for single
institutions, we believe that it is essential to maintain the consortia
arrangement, which ensures collaboration by requiring applicants to
develop partnerships among multiple IHEs, educational technology or
electronic curriculum design experts, and workforce advisors, to
maximize the impact of this program. Finally, although we note that the
project period established in the FY 2018 OTP NIA allowed applicants to
propose a project period shorter than 48 months, we appreciate that
many applicants consider the maximum project period as a default
project period. Furthermore, we appreciate the feedback that this work
can be accomplished in a shorter timeframe and agree with those
commenters that noted that establishing a shorter project period would
enable this program to yield results more quickly.
Changes: These comments were in response to a directed question on
issues that do not require rulemaking, but we have incorporated the
feedback into the FY 2020 OTP NIA. Specifically, in contrast to the FY
2018 OTP NIA, which established a maximum award of $4,950,000, in the
FY 2020 NIA, we are setting $2,000,000 as the maximum award, $1,000,000
as the average award, $500,000-$2,000,000 as the range in award size,
and 3-12 as the estimated number of awards. In addition, we have
shortened the project period from 48 months to 36 months.
Matching Contribution
Comment: The Department received several comments in response to
the directed question seeking feedback on the use of a priority to
require or encourage applicants to propose matching contributions.
Although several commenters responded that the Department should either
require or encourage matching contributions to support the
sustainability of the project and to achieve other objectives, the
majority of commenters advised against a matching priority for a
variety of reasons. Some commenters raised concerns that a matching
priority could disadvantage lower-resourced institutions. Many
commenters were supportive of the idea in general but advised that the
COVID-19 pandemic and its impact on the budgets of institutions,
States, and nonprofit partners make a matching priority ill-suited to
the FY 2020 competition.
Discussion: The Department appreciates these responses. In general,
given the small appropriation for this program, we are interested in
encouraging matching as a way to maximize the impact of the program and
support the sustainability of the funded projects. We also share the
concerns many commenters have raised and do not want to disadvantage
under-resourced institutions, including community colleges and minority
serving institutions. We also recognize the impact COVID-19 has had,
and is likely to continue to have, on IHEs.
Accordingly, the Department is not establishing a matching priority
for this program. We note that, through the priority 2(f) established
in the Secretary's Supplemental Priorities, we have the authority to
use a matching priority in OTP competitions without establishing such a
priority for this program. However, given the concerns raised regarding
the impact of COVID-19 on applicants' ability to secure matching
contributions, the Department is not including a matching priority in
the FY 2020 OTP NIA.
Changes: None.
Degree-Granting Programs
Comment: In general, commenters expressed support for the broader
definition of high-enrollment courses and high-enrollment programs.
Discussion: Upon further review of the Explanatory Statement that
accompanied the FY 2020 Appropriations Act, we recognized that Congress
intended to limit the FY 2020 OTP program to degree-granting programs.
Accordingly, we are revising Priority 2 and the definitions of ``high-
enrollment courses'' and ``high-enrollment programs'' to remove
references to credentials and solely reference degree-granting
programs.
Changes: We have revised Priority 2 and the definitions of ``high-
enrollment courses'' and ``high-enrollment programs'' to remove
references to credentials and solely reference degree-granting
programs.
Proposed Priority 1--Improving Collaboration and Dissemination
Comment: In response to this proposed priority designed to
encourage collaboration and dissemination, several commenters noted
that collaborations can be challenging, especially with large-scale
projects, and costly. One commenter noted that consortia arrangements
can be inefficient and ineffective at managing grant funds,
particularly if they are ad hoc or spread over a wide area. For this
reason, the commenter encouraged the Department to prioritize consortia
with a demonstrated connection between partners.
Discussion: We appreciate the support and critical feedback on
collaborations and consortia arrangements. The
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Department believes the consortia arrangement can be impactful on a
larger scale than individual projects, but we agree that such consortia
need to focus on identifying members of the consortia who bring a
synergistic combination of participants, experience, and program
management. It is the applicant's responsibility to demonstrate the
effectiveness of the consortia arrangement and how the consortium will
meet this priority.
Changes: None.
Comment: One commenter recommended expanding the priority to
include collaborations that promote the development of communication
infrastructures that support the sharing of resources among open
education practitioners.
Discussion: The Department appreciates this comment. We understand
the importance of sustainable support systems within and across
institutions, as well as the broader open education community.
Applicants have the flexibility to develop projects that are tailored
to the consortium or the broader community to support this identified
need.
Changes: None.
Comment: Several commenters recommended prioritizing certain
combinations of collaborative arrangements--for example, collaborations
with private institutions or non-profit and private sector businesses.
One commenter recommended prioritizing collaboration with campus
bookstores to assist with companion platforms and services, and to
provide information on the use of open textbooks and the associated
savings.
Discussion: The Department appreciates the recommendations.
However, to encourage a broad range of consortia arrangements, we
support providing applicants the flexibility to develop collaborative
arrangements with entities that can best address their identified
needs.
Changes: None.
Comment: One commenter recommended a requirement that applicants
propose how they might collaborate with existing OTP program grantees
to leverage the current investments made in those programs.
Discussion: The Department appreciates this comment. We recognize
the importance of building upon existing efforts, including current OTP
program projects, and leveraging other Federal investments to maximize
program impact. Since the previous awards made under this grant program
are currently active, information regarding the effectiveness of the
projects and deliverables may not be readily available to all
applicants. Because of this, we do not believe it is appropriate to
impose this requirement. We will continue to support activities that
build collaboration between our grantees and dissemination to the
broader education community to increase the impact of our investment.
Changes: None.
Comment: Several commenters recommended that we include in the
priority a requirement to increase awareness of open educational
resources (OER).
Discussion: The Department appreciates these comments. We recognize
the importance of improving awareness of OER to encourage its usage and
adoption. We believe there is an opportunity to improve awareness of
OER and engage various communities more broadly about it through the
collaboration and dissemination efforts developed under this priority,
as well as through professional development for faculty, instructors,
and staff, which is supported by this priority and priority 2.
Changes: None.
Proposed Priority 2--Addressing Gaps in the Open Textbook Marketplace
and Bringing Solutions to Scale
Comment: Several commenters provided specific recommendations to
make more explicit the requirement in subpart (c) regarding
accessibility. These commenters recommended that the Department require
adherence to Section 508 of the Rehabilitation Act of 1973 and the Web
Content Accessibility Guidelines (WCAG 2.0) Level AA. In addition,
commenters recommended that under this priority, the OTP program
include support for both implementation and maintenance of these
standards.
Discussion: The Department appreciates the commenters' concerns and
agrees that the openly licensed materials created through this grant
program, especially digital resources, should be widely available and
accessible to ensure all students are able to benefit. To ensure that
the materials created through this grant program are accessible, the
Department is adding an additional program requirement that all digital
content developed under this grant program must incorporate principles
of universal design to ensure that they are accessible to students with
disabilities, and that the content and courses must be in full
compliance with the Americans with Disabilities Act and Section 504 of
the Rehabilitation Act of 1973, as amended, and the W3C Web Content
Accessibility Guidelines 2.0, Level AA (http://www.w3.org/TR/WCAG/).
Changes: The Department has added an additional accessibility
program requirement.
Comment: Commenters noted that the OER content created through this
grant program should abide by the same Federal and State laws and
commonly accepted standards governing student data privacy and
intellectual property rights that may be used by the private sector.
Discussion: Department grantees under all grant programs, including
this grant program, must comply with student data privacy and State and
Federal privacy laws, including the Family Educational Rights and
Privacy Act (FERPA) (20 U.S.C. 1232) and its implementing regulations
in 34 CFR part 99. Additional privacy protections in these priorities
are not necessary.
With regards to intellectual property rights, grants awarded under
the OTP program are subject to the Department's open licensing
requirements in 2 CFR 3474.20, which speaks to copyrightable
intellectual property created with Department grant funds. We believe
that the open licensing regulations properly balance the intellectual
property interests of grantees and the public's interest in ensuring
that copyrightable material produced with Department grant funds is
widely disseminated. In addition, we believe the suggested change would
not be consistent with the intent of this grant program to expand the
use of openly licensed textbooks.
Changes: None.
Comment: Commenters recommended broadening the scope of this
priority to include English Language Learners (ELLs) and students
eligible as a Dislocated Worker under the Workforce Innovation and
Opportunity Act.
Discussion: The Department appreciates this comment. We recognize
the importance of improving access for ELs and those students eligible
for services under the Workforce Innovation and Opportunity Act. We
believe there is opportunity to serve these students under the priority
and applicants have the flexibility to develop projects that are
tailored to the consortium or broader community to support these
identified needs, as appropriate.
Changes: None.
Comment: Several commenters noted that digital materials created
under this grant program would benefit the broader community of
stakeholders using a variety of applications, platforms, and systems if
these materials conformed with standards for interoperability. These
commenters recommended
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including more explicit language that conveys the necessity for content
that is interoperable across various platforms and systems.
Discussion: The Department agrees with the commenters that digital
materials developed in conformance with open standards is consistent
with the goals of this grant program and the intent of the Department
to broaden the impact of its investments.
Changes: We have added an additional program requirement that
digital assets created through this grant program should conform with
technical standards for interoperability.
Comment: Several commenters noted that this priority, as well as
priorities 1 and 3, contain multiple required components that may be
difficult to complete for some applicants. The commenters recommended
removing select components, such as subparts (d) and (e), from the
priority; clarifying the language to state that applicants should
strive to meet as many of the requirements as possible; and encouraging
teams of applicants to focus on some components more than others,
rather than expecting all applicants to address all the components. One
commenter noted that requiring all subparts of the priority to be met
disregards differences in, among other things, demographics, financial
capabilities, and institution type and may put certain institutions at
a disadvantage.
Discussion: The Department appreciates this critical feedback. We
understand the concerns raised and do not want to disadvantage
applicants with impractical requirements. We aim to administer a
program that will meet the needs of a broad community without imposing
unnecessary burden. To this end, we believe the proposed elements of
the program will provide the basic framework to support the program's
purpose and address the program's goal. The Department also expects
applicants to expand upon this framework and propose projects that are
tailored to their needs. We believe the consortia arrangement will be
beneficial to all as it is an opportunity to collaborate and leverage
the complementary strengths of the consortia members.
However, in the NIA published elsewhere in this issue of the
Federal Register, the Department has established a new tiebreaker
mechanism, and incorporated selection criteria and a priority, to
address the concerns and facilitate the support of a diverse range of
applications.
Changes: None.
Comment: One commenter recommended requiring applicants to explain
how the development and distribution of the grant deliverables will be
sustained after grant funding ends.
Discussion: The Department appreciates this comment. The applicant
will have an opportunity to describe plans for sustainability as part
of the program's selection criteria.
Changes: None.
Proposed Priority 3--Promoting Student Success
Comment: Many commenters expressed support for this priority. There
were several commenters that suggested the priority would benefit from
expanded metrics to track and evaluate educational outcomes and cost
savings because the current metrics for this priority are limited and
are focused on whole-textbook adoption and associated student cost
savings.
Discussion: We appreciate the commenters' support and
recommendations for this priority. With the broadened definition of an
open textbook, the Department believes the priority does not imply that
cost savings can only be measured by the displacement of a textbook. We
understand that in some instances the open textbook will supplement and
not displace a textbook. The Department expects applicants to use the
broadened definition of an open textbook to identify the best method
for monitoring and evaluating the impact of open textbooks on
instruction, learning outcomes, course outcomes, and educational costs.
Furthermore, we expect applicants to develop clear, specific, and
actionable metrics that will address the performance of the proposed
grant project.
Changes: None.
Comment: One commenter recommended including professional
development in this priority.
Discussion: Although we did not specifically incorporate
professional development into this priority, the applicant is not
precluded from incorporating professional development to address this
priority.
Changes: None.
Comment: One commenter recommended revising the priority to
incorporate Universal Design for Learning as an exemplar for evidence-
based practices, and one commenter recommended that we require any
materials used, promoted, or disseminated through the project to comply
with Federal accessibility standards under Section 508 of the
Rehabilitation Act of 1973.
Discussion: The Department agrees with the former recommendation,
and has added a program requirement that all digital content developed
under this program must incorporate principles of universal design to
ensure that the content is accessible to students with disabilities,
and that the content and courses must be in full compliance with the
Americans with Disabilities Act and Section 504 of the Rehabilitation
Act of 1973, as amended, and the W3C Web Content Accessibility
Guidelines 2.0, Level AA (http://www.w3.org/TR/WCAG/). With respect to
the latter recommendation, Section 508 of the Rehabilitation Act of
1973 (29 U.S.C. 794d) requires Federal agencies to make electronic and
information technologies that they develop, procure, maintain, or use
accessible to individuals with disabilities. This law is not applicable
to recipients of Federal financial assistance that are not Federal
agencies.
Changes: The Department has added an additional accessibility
program requirement.
Comment: One commenter stated that this priority introduces an
inequitable barrier for institutions like community colleges, technical
colleges, and institutions that support local industry demand for
career and technical programs. It was noted that many of these
institutions have courses that are in high demand for creation of open
textbooks but they will not meet the definition for ``high-enrollment''
because the courses cannot accommodate large class sizes due to
industry and safety specifications. The commenter recommended the
inclusion of the proposed definitions for ``in-demand industry sector''
and ``in-demand occupation'' in this priority.
Discussion: We acknowledge the concern that establishing a stricter
definition for ``high-enrollment courses'' could preclude some
applicants from proposing open textbooks for certain courses. However,
the Department needs to balance this concern with the key program
objective of maximizing savings for students. The Department must also
take into consideration how the program priorities may achieve broad-
scale impact. We do not believe that limiting this priority to courses
in in-demand industry sectors and in-demand occupations would
sufficiently support promoting student success on a broader scale.
Changes: None.
Proposed Priority 4--Using Technology-Based Strategies for Personalized
Learning and Continuous Improvement
Comment: One commenter recommended including professional
development in this priority.
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Discussion: Although we did not specifically incorporate
professional development into this priority, the applicant is not
precluded from incorporating professional development to address this
priority.
Changes: None.
Comment: Multiple commenters recommended broadening the priority so
that it is not limited to projects that integrate personalized learning
strategies. There was concern that applicants with projects involving
technologies that are less complex to develop would be deterred by this
requirement. It was recommended to broaden the priority to include all
technology developments.
Discussion: The Department appreciates the critical feedback and
recommendations. We recognize that in addition to personalized learning
there are a multitude of strategies and pathways towards improving
instruction and student learning outcomes. While artificial
intelligence and adaptive learning are examples of technologies that
may provide personalized learning experiences for students, applicants
are not prohibited from undertaking other types of technology
developments under this priority. The Department encourages applicants
to choose the technology that fits the context of their proposed
project. Therefore, we agree that it will be beneficial to broaden the
language of this priority.
Changes: We have revised priority 4 to include all technology-based
strategies.
Comment: Multiple commenters expressed concern over consumer data
privacy and stated that the priority lacks explicit language requiring
grantees to protect the privacy of students.
Discussion: As State and Federal privacy laws apply to this grant
program, including FERPA and its implementing regulations in 34 CFR
part 99, additional privacy protections in these regulations are not
necessary.
Changes: None.
Comment: Multiple commenters expressed concern over accessibility
requirements and recommended the addition of language requiring
adherence to Section 508 of the Rehabilitation Act of 1973.
Discussion: Section 508 of the Rehabilitation Act of 1973 (29
U.S.C. 794d) requires Federal agencies to make electronic and
information technologies that they develop, procure, maintain, or use
accessible to individuals with disabilities. This law is not applicable
to recipients of Federal financial assistance that are not Federal
agencies. To ensure that the materials created through this grant
program are accessible, the Department is adding an additional program
requirement that all digital content developed under this grant program
must incorporate principles of universal design to ensure that they are
accessible to students with disabilities, and that the content and
courses must be in full compliance with the Americans with Disabilities
Act and Section 504 of the Rehabilitation Act of 1973, as amended, and
the W3C Web Content Accessibility Guidelines 2.0, Level AA (http://www.w3.org/TR/WCAG/).
Changes: The Department has added an additional accessibility
program requirement.
Comment: Multiple commenters expressed concern over intellectual
property and recommended the Department follow all applicable laws with
regard to the protection of intellectual property rights including
those of copyright, patent, and trademark holders.
Discussion: Grants awarded under the OTP program are subject to the
Department's open licensing requirements under 2 CFR 3474.20, which
speaks to copyrightable intellectual property created with Department
grant funds. We believe that the Department's regulations properly
balance the intellectual property interests of grantees and the
public's interest in ensuring that copyrightable material produced with
Department grant funds is widely disseminated. In addition, we believe
the suggested change would not be consistent with the intent of this
grant program to expand the use of openly licensed textbooks.
Changes: None.
Comment: A number of commenters did not support this priority
primarily because of the technology focus and, for some commenters, a
lack of alignment with the goal to achieve cost savings for students.
Commenters noted the technology focus of this priority may present a
barrier to applicants with smaller projects that may not be capable of
delivering some of the OER technology, or it may exclude applicants
with projects that are not focused on technology-enabled content and
instruction. There were also concerns about the burden to implement
technology-based strategies and the high costs associated with the
development and maintenance of technology-based solutions.
Discussion: The Department appreciates the critical feedback for
this priority. Although cost savings are a primary goal for this
program, the Department recognizes the possibility of other tangible
benefits. Through the use of technology-based strategies, the open
textbook materials can be further tailored and enhanced to meet the
needs of the students. We believe this priority is in alignment with
priorities 1, 2, and 3, which are more directly focused on the
development of open textbooks content and materials, because this
priority leverages the use of technology to support the open textbook
content. The Department encourages applicants to identify consortium
members that can help fill gaps, such as academic or technology gaps,
that may exist at their institution. We recognize that grantees may
need to invest in a variety of resources and that the burden to access
and implement these resources may vary across institutions. To get
optimal value from these investments, the Department expects applicants
to leverage the resources of their consortium and thereby benefit from
the access and offerings provided by the consortium members.
Changes: None.
Comment: One commenter stated that complex technologies may make it
more difficult for other users to revise, remix, and customize the
materials for their own learning objectives and student population
despite the open license.
Discussion: The Department appreciates the commenter's concern that
some digital assets or technology-enabled materials may be difficult to
revise, remix, and customize. Digital assets developed through this
grant program will be openly licensed. In addition, the Department has
included an additional program requirement that all technology-enabled
assets will conform with open standards to ensure interoperability
across multiple applications, platforms, and systems.
Changes: None.
Comment: One commenter recommended that, for any technology-based
or personalized learning focused projects, there should also be a focus
on the integration and reuse of the technologies with learning
management systems. In addition, since the development and maintenance
of these technologies can be costly, it was recommended that a plan be
proposed to sustain and update the systems and content beyond the grant
period.
Discussion: The Department appreciates this comment. The Department
has included an additional program requirement that all technology-
enabled assets will conform with open standards to ensure
interoperability across multiple applications, platforms, and systems.
The applicant will have an opportunity to describe plans for
sustainability as part of the program's selection criteria.
[[Page 57143]]
Changes: None.
Proposed Requirement
Applicant Eligibility
Comment: Several commenters recommended that the Department expand
the entities eligible to apply to lead the activities of the
consortium, to include private non-profit institutions, for-profit
organizations, State Higher Education Executive Officers Association
(SHEEO), State higher education systems, and state-wide OER
initiatives.
Discussion: We appreciate these comments and support the
participation of a diverse array of institutions and organizations in
this grant program. However, the Department adhered to the explanatory
statement accompanying the FY 2020 appropriations bill, which
recommended that IHEs, as defined in section 101 of the Higher
Education Act of 1965, as amended (HEA) (20 U.S.C. 1001), or State
higher education agencies serve as fiscal agent for a consortium.
Applicants are reminded that as part of the consortium they may include
private non-profit institutions, for-profit organizations, SHEEO, State
higher education systems, and state-wide OER initiatives. Additionally,
a system is eligible to apply as the lead applicant as long as the
eligibility parameters are met, and the lead applicant is an eligible
IHE from the system that serves as the fiscal agent.
Changes: None.
Comment: Many commenters were supportive of applicants
collaborating between multiple institutions, as well as with employers.
There were also many comments with recommendations for less restrictive
eligibility requirements, and flexibility to construct their own
consortia based on their needs and scope of expertise. The recommended
eligibility requirements included: Decreasing the number of IHEs;
reducing the size of the advisory group; eliminating the requirement
for an educational technology or electronic curriculum design expert;
eliminating the requirement for an advisory group; eliminating the
requirement for a consortium altogether; and supporting single
institution projects. Some commenters also noted the potential burden
of constructing a consortium due to the COVID-19 pandemic and its
impact on IHEs, as well as employers.
Discussion: The Department appreciates these responses and we share
some of the concerns many commenters have raised regarding the impact
of the COVID-19 pandemic. We do not want to unnecessarily create
additional burden on the applicants and are revising the eligibility
requirement to make it less restrictive. However, we believe that
consortia are necessary to facilitate the sharing of resources and help
ensure adequate scale of the projects. Additionally, the composition of
the consortium is intended to represent at a minimum the constituents
and stakeholders that can provide support and expertise that aligns
with the project scope.
Changes: We have revised the requirement for an advisory group to
provide that it must include at least three, rather than five,
employers, workforce organizations, or sector partners (as defined in
this notice).
Comment: One commenter requested clarification on the involvement
of employers and workforce partners in the advisory group and what role
they may serve.
Discussion: An advisory group was included in the consortium to
provide expertise and support for facilitating the alignment of
postsecondary education to workforce opportunities and employer needs.
Specifically, in the case of a career and technical postsecondary
program, the consortium should work together to develop and implement
open textbooks that meet industry standards in in-demand industry
sectors or in-demand occupations.
Changes: None.
Comment: Commenters sought clarification on what qualifies as an
educational technology or electronic curriculum design expert.
Discussion: Individuals in this role should be able to provide
expertise in the design, development, and delivery of open textbooks
and instructional resources. Ideally, the experts will possess the
skills needed to create content for learning and have qualifications
that facilitate designing, developing, implementing, and assessing
instruction and learning.
Changes: None.
Proposed Definitions
High Enrollment
Comment: A number of commenters raised concerns that increasing the
threshold for high enrollment from programs and courses with ``above-
average'' enrollment to those with ``top-third'' enrollment could
discourage applicants form proposing open textbooks for certain
programs and courses, such as those in the humanities.
Discussion: We appreciate the concerns raised by some commenters
that establishing a stricter definition for ``high-enrollment'' could
preclude applicants from proposing open textbooks for certain programs
and courses. However, the Department needs to balance this concern with
the key program objective of maximizing savings for students. We
believe that our proposed revision strikes the right balance. However,
the Department has established a new tiebreaker mechanism to ensure
that the funded projects support a diverse range of programs and
courses.
Changes: None.
Open Textbook
Comment: One commenter disagreed with the expansion of the
definition and suggested that the word ``textbook'' already had a
specific definition, and that redefining the term may result in
confusion.
Discussion: The Department believes that while a textbook is an
item with a prior known definition, the proposed definition mirrors the
actual use of learning materials for teaching and learning. As other
commenters also note, the textbook is no longer the single source of
learning enrichment in a classroom and by itself is insufficient to
create a rich and engaging learning experience for students.
Furthermore, the use of a textbook in the context of this program goes
beyond digitizing a book, as such; without these ancillary materials,
the Department would not be able to accomplish the goals of this grant
program.
Changes: None.
Comment: One commenter stated that the definition of ``open
textbooks'' may be too broad and imply that the grantees must use
openly licensed software to support the entire delivery of their
course.
Discussion: The Department does not believe that the definition
suggests that all aspects of course delivery should be openly licensed.
It is beyond the authority and scope of this grant program to require
any grantee to re-license any previously copyrighted materials or to
direct the usage of any applications, platforms, or systems.
Changes: None.
Comment: One commenter suggested that the Department should provide
a definition for ``ancillary materials'' to avoid the use of openly
licensed assessments.
Discussion: The Department appreciates this comment. However, we
believe there is value in open assessments as they provide the
opportunity to demonstrate mastery of the competencies. Therefore, we
do not want to limit applicants from developing or using these
materials. We also believe there is opportunity to develop a wide
variety of materials to
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serve students and that applicants have the flexibility to develop
projects that are tailored to the consortium or broader community to
support their identified needs, as appropriate.
Changes: None.
Comment: One commenter suggested revising the definition so that it
specifies how the original source code is guaranteed to be made freely
available to the public.
Discussion: Unless an exception applies, all new intellectual
property created in whole or in part with Department grant funds,
including those awarded under this grant program, are subject to the
Department's open licensing requirements under 2 CFR 3474.20. This
includes source code for any new, copyrightable digital assets.
Changes: None.
Sector Partner
Comment: One commenter recommended that we expand the definition of
``sector partner'' to include entities such as non-profit and private
sector businesses, and for the Department to establish a competitive
preference priority for partnerships with these entities.
Discussion: We appreciate the commenter's recommendation, but we do
not believe that it is necessary to revise the definition of ``sector
partner'' to include non-profit and private sector businesses.
Applicants have the flexibility to include entities such as non-profit
and private sector businesses in their consortia arrangement and may
choose to include these types of entities to meet priority 1.
Changes: None.
Final Priorities
This notice contains four final priorities. The Assistant Secretary
may use one or more of these priorities for the FY 2020 OTP program
competition or for any subsequent competitions. We may use one or more
of these priorities in any year in which this program is in effect.
Priority 1--Improving Collaboration and Dissemination
To meet this priority, an eligible applicant must propose to lead
and carry out projects that involve a consortia of institutions,
instructors, and subject matter experts, including no less than three
IHEs, along with relevant employers, workforce stakeholders (as defined
in this notice), and/or trade or professional associations (as defined
in this notice). Applicants must explain how the members of the
consortium will work together to develop and implement open textbooks
that: (a) Reduce the cost of college for large numbers of students
through a variety of cost saving measures; and (b) contain
instructional content and ancillary instructional materials that align
student learning objectives with the skills or knowledge required by
large numbers of students (at a given institution or nationally), or in
the case of a career and technical postsecondary program, meet industry
standards in in-demand industry sectors or in-demand occupations (as
defined in this notice).
Priority 2--Addressing Gaps in the Open Textbook Marketplace and
Bringing Solutions to Scale
To meet this priority, an applicant must identify the gaps in the
open textbook marketplace in courses that are part of a degree-granting
program that it seeks to address and propose how to close such gaps. An
applicant must propose a comprehensive plan to: (a) Identify and assess
existing open educational resources in the proposed subject area before
creating new ones, such as by identifying any existing open textbooks
that could potentially be used as models for the design of the project
or ancillary learning resources that would support the development of
courses that use open textbooks; (b) focus on the creation and
expansion of education and training materials that can be scaled,
within and beyond the participating consortium members, to reach a
broad range of students participating in high-enrollment courses or
preparing for in-demand industry sectors or in-demand occupations; (c)
create and disseminate protocols to review any open textbooks created
or adapted through the project for accuracy, rigor, and accessibility
for students with disabilities; (d) disseminate information about the
results of the project to other IHEs, including promoting the adoption
of any open textbooks created or adapted through the project, or
adopting open standard protocols and processes that support the
interoperability for any digital assets created; (e) include
professional development to build capacity of faculty, instructors, and
other staff to adapt and use open textbooks; and (f) describe the
courses for which open textbooks and ancillary materials are being
developed.
Priority 3--Promoting Student Success
To meet this priority, an applicant must propose to build upon
existing open textbook materials and/or develop new open textbooks for
high-enrollment courses or high-enrollment programs in order to achieve
the highest level of savings for students.
Additionally, this priority requires the applicant to include plans
for: (a) Promoting and tracking the use of open textbooks in
postsecondary courses across participating members of the consortium,
including an estimate of the projected direct cost savings for students
which will be reported during the annual performance review; (b)
monitoring the impact of open textbooks on instruction, learning
outcomes, course outcomes, and educational costs; (c) investigating and
disseminating evidence-based practices associated with using open
textbooks that improve student outcomes; and (d) updating the open
textbooks beyond the funded period.
Priority 4--Using Technology-Based Strategies for Personalized Learning
and Continuous Improvement
To meet this priority, an applicant must propose a project that
focuses on improving instruction and student learning outcomes by
integrating technology-based strategies, such as personalized learning,
and providing support to faculty, instructors, and other staff who are
delivering courses using these techniques. The project must enable
students to tailor and monitor their own learning and/or allow
instructors to monitor the individual performance of each student in
the classes or courses for which the applicant proposes to develop open
textbooks. In addition, online and technology-enabled content and
courses developed under this project must incorporate the principles of
universal design in order to ensure that they are accessible by all
students, including students with disabilities. The openly licensed
resources that are developed should support traditional, text-based
materials, including through such tools as adaptive learning modules,
digital simulations, and tools to assist student engagement.
Types of Priorities
When inviting applications for a competition using one or more
priorities, we designate the type of each priority as absolute,
competitive preference, or invitational through a notice in the Federal
Register. The effect of each type of priority follows:
Absolute priority: Under an absolute priority, we consider only
applications that meet the priority (34 CFR 75.105(c)(3)).
Competitive preference priority: Under a competitive preference
priority, we give competitive preference to an application by (1)
awarding additional points, depending on the extent to which the
application meets the priority
[[Page 57145]]
(34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets
the priority over an application of comparable merit that does not meet
the priority (34 CFR 75.105(c)(2)(ii)).
Invitational priority: Under an invitational priority, we are
particularly interested in applications that meet the priority.
However, we do not give an application that meets the priority a
preference over other applications (34 CFR 75.105(c)(1)).
Final Requirements
The Assistant Secretary for Postsecondary Education establishes the
following requirements for this program. We may apply one or more of
these requirements in any year in which this program is in effect.
Eligible Applicants: Eligible applicants are IHEs as defined in
section 101 of the Higher Education Act of 1965, as amended (HEA) (20
U.S.C. 1001), or State higher education agencies that--
(a) Lead the activities of a consortium that is comprised of at
least--
(1) Three IHEs, as defined in section 101 of the HEA;
(2) An educational technology or electronic curriculum design
expert (which may include such experts that are employed by one or more
of the consortium institutions); and
(3) An advisory group of at least three employers, workforce
organizations, or sector partners (as defined in this notice); and
(b) Have demonstrated experience in the development and
implementation of open educational resources.
Accessibility: All digital content developed under this grant
program must incorporate the principles of universal design
(www.cast.org/udl/) to ensure that they are accessible to individuals
with disabilities. The content and courses must be in full compliance
with the Americans with Disabilities Act, Section 504 of the
Rehabilitation Act of 1973, as amended, and the Web Content
Accessibility Guidelines 2.0, Level AA (www.w3.org/TR/WCAG/).
Technical Standards for Interoperability: All digital assets
developed under this grant program must be produced to maximize
interoperability, exchange, and reuse and must conform to industry-
recognized open standards and specifications. Applicants must identify
the industry standard they will use. All digital assets created in
whole or in part under this grant program must be licensed for free,
attributed public use and distribution as required under 2 CFR 3474.20.
Final Definitions
The Assistant Secretary for Postsecondary Education establishes the
following definitions for this program. We may apply one or more of
these definitions in any year in which this program is in effect.
High-enrollment courses means courses that are required for a
degree granting program offered by an eligible IHE that either have
total student enrollments within the top third of courses: (a) At the
lead institution, if applicable, or at one or more of the consortia
partner institutions; (b) in the State; or (c) nationally as compared
to other academic or career and technical education courses.
High-enrollment program means a program that yields a postsecondary
degree that either has total student enrollments within the top third
of programs: (a) At the lead institution, if applicable, or at one or
more of the consortia partner institutions; (b) in the State; or (c)
nationally as compared to other academic or career and technical
education courses.
In-demand industry sector means an industry sector that has a
substantial current or potential impact (including through jobs that
lead to economic self-sufficiency and opportunities for advancement) on
the State, regional, or local economy, as appropriate, and that
contributes to the growth or stability of other supporting businesses,
or the growth of other industry sectors.
In-demand occupation means an occupation that currently has or is
projected to have a number of positions (including positions that lead
to economic self-sufficiency and opportunities for advancement) in an
industry sector so as to have a significant impact on the State,
regional, or local economy, as appropriate.
Open textbook means a textbook that is licensed under a worldwide,
nonexclusive, royalty-free, perpetual, and irrevocable license to the
public to exercise any of the rights under copyright conditioned only
on the requirement that attribution be given as directed by the
copyright owner. An open textbook may also include a variety of open
educational resources or materials used by instructors in the
development of a course and those learning activities necessary for
successful completion of a course by students. These include any
learning exercises, technology-enabled experiences (e.g., simulations),
and adaptive support and assessment tools.
Sector partner means a member of a workforce collaborative,
convened by or acting in partnership with a State board or local board,
that organizes key stakeholders interconnected by labor markets,
technologies, and worker skill needs into a working group that focuses
on shared goals and resource needs.
Trade or professional association means a membership organization
that inspects employers or practitioners, or leads credentialing
programs, in a specific industry or sector.
Workforce stakeholder means an individual or organization with an
interest in the employability of others either for self-interest or the
interest of other employers.
This document does not preclude us from proposing additional
priorities, requirements, definitions, or selection criteria, subject
to meeting applicable rulemaking requirements.
Note: This document does not solicit applications. In any year
in which we choose to use any of the proposed priorities,
requirements, or definitions, we invite applications through a
notice in the Federal Register.
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) must determine whether this regulatory action is ``significant''
and, therefore, subject to the requirements of the Executive order and
subject to review by OMB. Section 3(f) of Executive Order 12866 defines
a ``significant regulatory action'' as an action likely to result in a
rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
Under Executive Order 13771, for each new regulation that the
Department proposes for notice and
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comment or otherwise promulgates that is a significant regulatory
action under Executive Order 12866, and that imposes total costs
greater than zero, it must identify two deregulatory actions. For FY
2020, any new incremental costs associated with a significant
regulatory action must be fully offset by the elimination of existing
costs through deregulatory actions. Because this regulatory action is
not significant, the requirements of Executive Order 13771 do not
apply.
We have also reviewed this final regulatory action under Executive
Order 13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final priorities, requirements, and
definitions only on a reasoned determination that their benefits
justify their costs. In choosing among alternative regulatory
approaches, we selected those approaches that maximize net benefits.
Based on the analysis that follows, the Department believes that this
regulatory action is consistent with the principles in Executive Order
13563.
We also have determined that this regulatory action does not unduly
interfere with State, local, and Tribal governments in the exercise of
their governmental functions.
In accordance with both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs are those
resulting from statutory requirements and those we have determined as
necessary for administering the Department's programs and activities.
Paperwork Reduction Act of 1995
The final priorities, requirements, and definitions contain
information collection requirements that are approved by OMB under OMB
control number 1894-0006; the final priorities, requirements, and
definitions do not affect the currently approved data collection.
Regulatory Flexibility Act Certification: The Secretary certifies
that this regulatory action will not have a significant economic impact
on a substantial number of small entities. The U.S. Small Business
Administration (SBA) Size Standards define ``small entities'' as for-
profit or nonprofit institutions with total annual revenue below
$7,000,000 or, if they are institutions controlled by small
governmental jurisdictions (that are comprised of cities, counties,
towns, townships, villages, school districts, or special districts),
with a population of less than 50,000.
The small entities that this regulatory action will affect are
public or private nonprofit agencies and organizations, including IHEs
that may apply. We believe that the costs imposed on an applicant by
the final priorities, requirements, and definitions would be limited to
paperwork burden related to preparing an application and that the
benefits of the final priorities, requirements, and definitions would
outweigh any costs incurred by the applicant.
Participation in the OTP program is voluntary. For this reason, the
final priorities, requirements, and definitions will impose no burden
on small entities unless they applied for funding under the program. We
expect that in determining whether to apply for OTP program funds, an
eligible entity will evaluate the requirement of preparing an
application and any associated costs, and weigh them against the
benefits likely to be achieved by receiving a program grant. An
eligible entity will probably apply only if it determines that the
likely benefits exceed the costs of preparing an application.
We believe that the final priorities, requirements, and definitions
will not impose any additional burden on a small entity applying for a
grant than the entity would face in the absence of the proposed action.
That is, the length of the applications those entities would submit in
the absence of the regulatory action and the time needed to prepare an
application would likely be the same.
This regulatory action will not have a significant economic impact
on a small entity once it receives a grant because it will be able to
meet the costs of compliance using the funds provided under this
program.
Intergovernmental Review: This program is subject to Executive
Order 12372 and the regulations in 34 CFR part 79. One of the
objectives of the Executive order is to foster an intergovernmental
partnership and a strengthened federalism. The Executive order relies
on processes developed by State and local governments for coordination
and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and
actions for this program.
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
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at www.govinfo.gov. 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 Adobe Portable Document Format
(PDF). To use PDF you must have Adobe Acrobat Reader, which is
available free at the site.
[[Page 57147]]
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 at this site, you can limit your search to documents published
by the Department.
Robert L. King,
Assistant Secretary for Postsecondary Education.
[FR Doc. 2020-20378 Filed 9-14-20; 8:45 am]
BILLING CODE 4000-01-P