[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

[[Page 57139]]

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

[[Page 57140]]

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

[[Page 57141]]

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.

[[Page 57142]]

    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

[[Page 57144]]

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

[[Page 57146]]

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