[Federal Register Volume 86, Number 151 (Tuesday, August 10, 2021)]
[Proposed Rules]
[Pages 43609-43613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16953]


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DEPARTMENT OF EDUCATION

34 CFR Chapter VI

[Docket ID ED-2021-OPE-0077]


Negotiated Rulemaking Committee; Negotiator Nominations and 
Schedule of Committee Meetings

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Intent to establish rulemaking committee.

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SUMMARY: We announce our intention to establish one negotiated 
rulemaking committee to prepare proposed regulations for the Federal 
Student Aid programs authorized under title IV of the Higher Education 
Act of 1965, as amended (HEA). The committee will include 
representatives of organizations or groups with interests that are 
significantly affected by the subject matter of the proposed 
regulations. We request nominations for individual negotiators who 
represent key stakeholder constituencies for the issues to be 
negotiated to serve on the committee. We also announce the creation of 
a subcommittee, and request nominations for individuals with pertinent 
expertise to participate on the subcommittee. The Department has set a 
schedule for committee meetings.

DATES: We must receive your nominations for negotiators to serve on the 
committee on or before August 31, 2021. The dates and times of the 
committee and subcommittee meetings are set out in the Schedule for 
Negotiations section in the

[[Page 43610]]

SUPPLEMENTARY INFORMATION section. All meetings will be virtual.

ADDRESSES: Please email your nominations for negotiators to 
[email protected]. If you are unable to email your nomination, 
send it to Vanessa Gomez, U.S. Department of Education, 400 Maryland 
Ave. SW, Room 2C179, Washington, DC 20202.

FOR FURTHER INFORMATION CONTACT: For information about negotiated 
rulemaking, see ``The Negotiated Rulemaking Process for Title IV 
Regulations Frequently Asked Questions'' at https://www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html. For information 
about the content of this document, including additional information 
about the negotiated rulemaking process or the nomination submission 
process, contact: Vanessa Gomez, U.S. Department of Education, 400 
Maryland Ave. SW, Room 2C179, Washington, DC 20202. Telephone: (202) 
453-6708. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or text 
phone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-
877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On May 26, 2021, we published an announcement of our intent to 
establish negotiated rulemaking committees under section 492 of the HEA 
to develop proposed regulations related to a number of higher education 
practices and issues in the Federal Register (86 FR 28299) (Negotiated 
Rulemaking Committee Notice). The Department suggested the following 
topics for the negotiated rulemaking process:
    (1) Change of ownership and change in control of institutions of 
higher education under 34 CFR 600.31;
    (2) Certification procedures for participation in title IV, HEA 
programs under 34 CFR 668.13;
    (3) Standards of administrative capability under 34 CFR 668.16;
    (4) Ability to benefit under 34 CFR 668.156;
    (5) Borrower defense to repayment under 34 CFR 682.410, 682.411, 
685.206, and 685.222;
    (6) Discharges for borrowers with a total and permanent disability 
under 34 CFR 674.61, 682.402(c), and 685.213;
    (7) Closed school discharges under 34 CFR 685.214 and 682.402(d);
    (8) Discharges for false certification of student eligibility under 
34 CFR 685.215 and 682.402(e);
    (9) Loan repayment plans under 34 CFR 682.209, 682.215, 685.208, 
and 685.209;
    (10) The Public Service Loan Forgiveness program under 34 CFR 
685.219;
    (11) Mandatory pre-dispute arbitration and prohibition of class 
action lawsuits provisions in institutions' enrollment agreements 
(formerly under 34 CFR 685.300) and associated counseling about such 
arrangements under 34 CFR 685.304;
    (12) Financial responsibility for participating institutions of 
higher education under 34 CFR subpart L, such as events that indicate 
heightened financial risk;
    (13) Gainful employment (formerly located in 34 CFR subpart Q); and
    (14) Pell Grant eligibility for prison education programs under 34 
CFR part 690.
    We also announced three public hearings at which interested parties 
could comment on the topics suggested by the Department and suggest 
additional topics for consideration for action by the negotiated 
rulemaking committees. Those hearings took place virtually on June 21, 
June 23, and June 24, 2021. We invited parties to comment and submit 
topics for consideration in writing as well. Recordings and transcripts 
from the public hearings are available at: https://www2.ed.gov/policy/highered/reg/hearulemaking/2021/index.html.
    Written comments submitted in response to the Negotiated Rulemaking 
Committee Notice may be viewed through the Federal eRulemaking Portal 
at www.regulations.gov. Instructions for finding comments are available 
on the site under ``FAQ''. Individuals can enter docket ID ED-2021-OPE-
0077 in the search box to locate the appropriate docket.

Committee Topics

    After considering the information received at the public hearings 
and the written comments, we have decided to establish the 
Affordability and Student Loans Committee to address the following 
topics:
    (1) Borrower defense to repayment under 34 CFR 682.410, 682.411, 
685.206, and 685.222;
    (2) Closed school discharges under 34 CFR 685.214 and 682.402(d);
    (3) Discharges for borrowers with a total and permanent disability 
under 34 CFR 674.61, 682.402(c), and 685.213;
    (4) Discharges for false certification of student eligibility under 
34 CFR 685.215 and 682.402(e);
    (5) Loan repayment plans under 34 CFR 682.209, 682.215, 685.208, 
and 685.209;
    (6) Interest capitalization on Federal student loans under 34 CFR 
682.202, 685.202, 685.209, and 685.220;
    (7) Mandatory pre-dispute arbitration and prohibition of class 
action lawsuits provisions in institutions' enrollment agreements 
(formerly under 34 CFR 685.300) and associated counseling about such 
arrangements under 34 CFR 685.304;
    (8) Pell Grant eligibility for prison education programs under 34 
CFR part 690; and
    (9) The Public Service Loan Forgiveness program under 34 CFR 
685.219.
    As a part of the negotiated rulemaking process, we are forming a 
Prison Education Program Subcommittee to expand the range of expertise 
and constituencies represented on this topic. The committee will 
consider the subcommittee's recommendations in its consideration of 
proposed regulations to implement Pell Grant eligibility for 
incarcerated individuals, authorized by the Consolidated Appropriations 
Act of 2021. Currently, students incarcerated in a State or Federal 
penal institution are prohibited from receiving Pell Grants. Sections 
702 and 703 of the Consolidated Appropriations Act of 2021 amended 
sections 401 and 484 of the HEA to remove this prohibition; however, 
the amendments require that an incarcerated student enroll in a 
qualifying prison education program to qualify for a Pell Grant. The 
Department intends to develop regulations to implement those changes.
    This subcommittee will address these issues and make 
recommendations to the committee. The subcommittee is not authorized to 
make decisions for the Affordability and Student Loans Committee. The 
subcommittee may be comprised of some members of the committee 
(negotiators), as well as individuals who are not committee members but 
who have expertise that will be helpful in developing proposed 
regulations. Therefore, in addition to asking for nominations for 
individual negotiators who represent key stakeholder constituencies for 
issues to be negotiated to serve on the committee (see Constituencies 
for Negotiator Nominations), we seek nominations for individuals with 
specific types of experience to serve on the subcommittee. Before 
conclusion of the negotiations, the subcommittee will present its 
recommendations for regulatory changes to the committee for its 
consideration.
    Seven of the 14 topics listed in the Negotiated Rulemaking 
Committee Notice are not on the list of topics to be considered by the 
Affordability and

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Student Loans Committee. These remaining topics and other topics 
suggested in the public hearings and written comments provided to the 
Department may be considered by a separate rulemaking committee(s) 
formed at a later date, which we would announce in a separate Federal 
Register notice.
    We intend to select negotiators for the Affordability and Student 
Loans Committee who represent the interests of those significantly 
affected by the topics proposed for negotiation. In so doing, we will 
comply with the requirement in section 492(b)(1) of the HEA that the 
individuals selected must have demonstrated expertise or experience in 
the relevant topics proposed for negotiations. We will also select 
individual negotiators who reflect the diversity among program 
participants, in accordance with section 492(b)(1) of the HEA. Our goal 
is to establish a committee and subcommittee that will allow 
significantly affected parties to be represented while keeping the 
committee size manageable.
    We generally select a primary and alternate negotiator for each 
constituency represented on a committee. The primary negotiator 
participates for the purpose of determining consensus. The alternate 
participates for the purpose of determining consensus in the absence of 
the primary negotiator. The Department will provide more detailed 
information to both primary and alternate negotiators selected to 
participate on the committee about the logistics and protocols of the 
meetings. The subcommittee will only have a primary member. We will not 
select alternates for the subcommittee.
    Individuals who are not members of the committee will be able to 
observe the committee meetings, will have access to individuals 
representing their constituencies, and may be able to participate in 
informal working groups on various issues between the meetings.

Constituencies for Negotiator Nominations

    We have identified the following constituencies as having interests 
that are significantly affected by the topics proposed for negotiation. 
We plan to include as negotiators individuals from organizations or 
groups representing these constituencies and/or individuals who are a 
part of the constituency. We particularly encourage organizations 
representing the interests of historically underserved and/or low-
income communities to submit their nominations. Nominations must 
include evidence of the nominee's specific knowledge in these areas, 
citing specific topics outlined in the Committee Topics section. 
Constituencies for the Affordability and Student Loans Committee are:
    (1) Dependent students--these are undergraduate students who are 
typically traditionally-aged college students. A student is a dependent 
student if they were required to enter both their and their parents' 
information on their most recent FAFSA submission.
    (2) Independent students--these are often older or nontraditional 
students, such as students over the age of 24. Students who are 
married, have children or other dependents, or who were unaccompanied 
and homeless or at risk of being homeless are independent students. 
Independent students can be pursuing undergraduate or graduate studies. 
A student is an independent student if they were not required to enter 
their parents' information on their most recent FAFSA submission.
    Note: Students who were formerly incarcerated and participated in 
postsecondary education while in prison are included in the independent 
and dependent student categories regardless of whether they received 
Federal student aid, and we encourage nominations for individuals with 
those experiences. For both student spots, we also encourage 
individuals or organizations representing low-income students to apply.
    (3) Student loan borrowers. This includes but is not limited to: 
Student loan borrowers who are currently repaying their student loans, 
student loan borrowers who defaulted or are currently in default, 
student loan borrowers who were in forbearance or are currently in the 
administrative (automatic) forbearance due to COVID-19, and student 
loan borrowers who prior to the administrative forbearance were 
delinquent (late) on their student loans payments.
    (4) Legal assistance organizations that represent students and/or 
borrowers.
    (5) U.S. military service members, veterans, or groups representing 
them.
    (6) State attorneys general.
    (7) State higher education executive officers, State authorizing 
agencies, and/or State regulators of institutions of higher education 
and/or loan servicers.
    (8) Individuals with disabilities or groups representing them.
    (9) Financial aid administrators at postsecondary institutions.
    (10) Two-year public institutions of higher education.
    (11) Four-year public institutions of higher education.
    (12) Private nonprofit institutions of higher education.
    (13) Proprietary institutions.
    (14) Minority-serving institutions--institutions of higher 
education eligible to receive Federal assistance under title III, parts 
A, B, and F, and title V of the HEA, which include Historically Black 
Colleges and Universities, Hispanic-Serving Institutions, American 
Indian Tribally Controlled Colleges and Universities, Alaska Native and 
Native Hawaiian-Serving Institutions, Predominantly Black Institutions, 
Native American-Serving Nontribal Institutions, and Asian American and 
Native American Pacific Islander-Serving Institutions.
    (15) Federal Family Education Loan (FFEL) lenders and/or guaranty 
agencies.
    (16) Accrediting agencies.
    The goal of the committee is to develop proposed regulations that 
reflect a final consensus of the committee. Consensus means that there 
is no dissent by any member of a negotiating committee, including the 
committee member representing the Department.
    An individual selected as a negotiator is expected to represent the 
interests of their organization or group and to participate in the 
negotiations in a manner consistent with the goal of developing 
proposed regulations on which the committee will reach consensus. If 
consensus is reached, all members of the organization or group 
represented by a negotiator are bound by the consensus and are 
prohibited from commenting negatively on the resulting proposed 
regulations. The Department will not consider any such negative 
comments on the proposed regulations that are submitted by a member of 
such an organization.
    We are interested in nominations for members of the Prison 
Education Program Subcommittee from individuals who represent the 
following groups:
    (1) Consumer advocacy organizations.
    (2) Financial aid administrators.
    (3) Formerly incarcerated students.
    (4) Groups that represent incarcerated students.
    (5) Postsecondary institutions that are prison education program 
providers.
    (6) State correctional education directors.
    (7) State higher education executive officers.
    We encourage representatives from postsecondary institutions that 
are currently participating in the Department's Second Chance Pell 
Experiment to submit nominations. For more information on the Second 
Chance

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Pell experiment please visit: https://experimentalsites.ed.gov/exp/approved.html.

Advisors

    The Department also invites nominations for two advisors. These 
advisors will not be members of the committee and will not impact the 
consensus vote; however, we will consult with the advisors, who will 
serve as a resource. We seek an advisor representing qualifying 
employers on the topic of Public Service Loan Forgiveness. The term 
``public service job'' for purposes of the Public Service Loan 
Forgiveness program is defined in section 455(m)(3)(B) of the HEA as 
including jobs in: Emergency management, government (excluding time 
served as a member of Congress), military service, public safety, law 
enforcement, public health (including nurses, nurse practitioners, 
nurses in a clinical setting, and full-time professionals engaged in 
health care practitioner occupations and health care support 
occupations, as such terms are defined by the Bureau of Labor 
Statistics), public education, social work in a public child or family 
service agency, public interest law services (including prosecution or 
public defense or legal advocacy on behalf of low-income communities at 
a nonprofit organization), early childhood education (including 
licensed or regulated childcare, Head Start, and State funded 
prekindergarten), public service for individuals with disabilities, 
public service for the elderly, public library sciences, school-based 
library sciences and other school-based services, or at an organization 
that is described in section 501(c)(3) of the Internal Revenue Code of 
1986 and exempt from taxation under section 501(a) of such Code, or 
teaching as a full-time faculty member at a Tribal College or 
University as defined in section 316(b) of the HEA and other faculty 
teaching in high-needs subject areas or areas of shortage (including 
nurse faculty, foreign language faculty, and part-time faculty at 
community colleges), as determined by the Secretary.
    Additionally, we seek an advisor with expertise in economic and/or 
higher education policy analysis and higher education data to support 
the committee in evaluating and understanding its options.
    The advisors will be expected to be available throughout the 
duration of the Affordability and Student Loans Committee (excluding 
the Prison Education Program subcommittee) meetings, in the event that 
issues related to Public Service Loan Forgiveness arise. The Department 
will work with the committee and the advisors to determine more 
specific dates and times that the advisors must be present for the 
committee meetings. The advisors may be asked to provide information on 
their experience as an employer in a public service job and as an 
economist and/or higher education researcher, respectively. For 
example, the employer advisor should be prepared to relay how they 
assist employees with the Employment Certification Form or how the 
full-time employment requirement for the Public Service Loan 
Forgiveness Program impacts part-time employees. The economic and/or 
higher education research advisor should be prepared to examine data 
related to student loan repayment, including income-driven repayment 
plans. The advisors may also offer recommendations to the committee on 
regulatory language.

Nominations

    We strongly suggest that nominations for both the committee and 
subcommittee include the information described in this section. The 
Department anticipates increased interest due to the number of topics, 
and nominations lacking that information may be more difficult for the 
Department to evaluate. We also suggest that nominees exclude any 
supplementary information that is not requested in this section.
    (1) The exact name of the constituency or constituencies the 
nominee is being nominated for (see Constituencies for Negotiator 
Nominations);
    (2) The name of the nominee;
    (3) The nominee's place of employment or institution at which they 
are or were enrolled and, if different, the organization the nominee 
represents;
    (4) A resume or evidence of the nominee's expertise and experience 
in the topics proposed for negotiations; and
    (5) The nominee's contact information, including the nominee's 
email address, telephone number, and physical mailing address or post 
office box.
    Please see the ADDRESSES section for submission information. If the 
nomination is submitted by the recommended email method to 
[email protected], the submitter will receive an email 
confirmation of receipt. The Department will provide additional 
information to those we select to serve as negotiators. Once complete, 
a list of negotiators will be posted here: www2.ed.gov/policy/highered/reg/hearulemaking/2021/index.html. If a constituency does not have a 
qualifying nominee, the Department will also provide information at 
that site about how any vacancies can be filled at the beginning of the 
October 4, 2021 committee meeting.

Schedule for Negotiations

    The Affordability and Student Loans Committee will meet for three 
sessions on the following dates:

Session 1: October 4-8, 2021
Session 2: November 1-5, 2021
Session 3: December 6-10, 2021

    Times for the committee meetings will be published here: https://www2.ed.gov/policy/highered/reg/hearulemaking/2021/index.html.
    The Prison Education Program Subcommittee will meet for two 
sessions in October and November. The sessions will be three days each. 
We will announce the dates and times of the subcommittee meetings as 
soon as possible here: https://www2.ed.gov/policy/highered/reg/hearulemaking/2021/index.html.
    All negotiated rulemaking committee meetings will be conducted 
virtually and available for the public to view. Individuals who wish to 
observe the committee meetings will be required to register for each 
day they would like to observe. We will post registration links closer 
to the start of negotiations on our website at: www2.ed.gov/policy/highered/reg/hearulemaking/2021/index.html. The Department will also 
post recordings and transcripts of the meetings on that site.
    At the end of each day, the Department will reserve 30 minutes for 
public comment. We will provide information on how to request time to 
speak on our website at www2.ed.gov/policy/highered/reg/hearulemaking/2021/index.html.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document and a copy of the application package in an 
accessible format. The Department will provide the requestor with an 
accessible format that may include Rich Text Format (RTF) or text 
format (txt), a thumb drive, an MP3 file, braille, large print, 
audiotape, or compact disc, or other accessible format.
    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

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documents of this Department published in the Federal Register, in text 
or Portable Document Format (PDF). To use PDF you must have Adobe 
Acrobat Reader, which is available free at the site. You may also 
access the 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.

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

Michelle Asha Cooper,
Acting Assistant Secretary for Postsecondary Education.
[FR Doc. 2021-16953 Filed 8-9-21; 8:45 am]
BILLING CODE 4000-01-P