[Federal Register Volume 86, Number 233 (Wednesday, December 8, 2021)]
[Proposed Rules]
[Pages 69607-69609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26571]


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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 a 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 and request nominations for advisors to the committee. The 
Department has also set a schedule for committee meetings.

DATES: We must receive your nominations for negotiators to serve on the 
committee seven days from the date of publication. The dates and times 
of the committee meetings are set out in the Schedule for Negotiations 
section in the 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) 452-6708. 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). 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.
    On August 10, 2021, the Department published a Federal Register 
notice (86 FR 43609) announcing our intent to establish the 
Affordability and Student Loans Committee. That committee is currently 
meeting to address issues that include borrower defense to repayment; 
closed school, false certification, and total and permanent disability 
Federal

[[Page 69608]]

student loan discharges; income-driven repayment; Public Service Loan 
Forgiveness; pre-dispute arbitration and required class action waivers; 
interest capitalization; and Pell Grants for people who are enrolled in 
prison education programs.
    On October 4, 2021, we published an announcement in the Federal 
Register (86 FR 54666) of our intent to establish a negotiated 
rulemaking committee under section 492 of the HEA to develop proposed 
regulations related to the 90/10 rule. Section 2013 of the American 
Rescue Plan Act of 2021 (ARP) amended HEA section 487(a)(24) to make 
changes to the statutory provision that requires a proprietary 
institution to derive at least 10 percent of its revenues from sources 
that are not Federal education assistance funds. Federal education 
assistance funds are ``Federal funds that are disbursed or delivered to 
or on behalf of a student to be used to attend such institution.'' We 
then held two additional public hearings on the topic of 90/10 on 
October 26 and October 27, 2021. We invited parties to comment 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.
    You may view written comments submitted in response to the 
aforementioned Federal Register notices through the Federal eRulemaking 
Portal at www.regulations.gov. Instructions for finding comments are 
available on the site under ``FAQ.'' 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 
Institutional and Programmatic Eligibility Committee to address the 
following topics:
    (1) 90/10 under 34 CFR 668.28;
    (2) Ability to benefit under 34 CFR 668.156;
    (3) Certification procedures for participation in title IV, HEA 
programs under 34 CFR 668.13;
    (4) Change of ownership and change in control of institutions of 
higher education under 34 CFR 600.31;
    (5) Financial responsibility for participating institutions of 
higher education under 34 CFR 668.15 and 34 CFR part 668, subpart L, 
such as events that indicate heightened financial risk;
    (6) Gainful employment (formerly located in 34 CFR part 668, 
subpart Q); and
    (7) Standards of administrative capability under 34 CFR 668.16.
    We intend to select negotiators for the Institutional and 
Programmatic Eligibility 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 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.
    Members of the public may observe the committee meetings, will have 
access to individuals representing their constituencies, and may be 
able to participate in informal working groups on 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. We also encourage 
nominations for individuals who have expertise in formal or State-
approved career pathways programs. Nominations should include evidence 
of the nominee's specific knowledge in these areas, citing specific 
topics outlined in the Committee Topics section. The Department 
strongly encourages nominees to list all constituencies under which 
they would like to be considered. The Department reserves the 
discretion to place a nominee in a constituency based upon their 
background and experience even if the individual was not nominated for 
that specific category. Constituencies for the Institutional and 
Programmatic Eligibility Committee are:
    (1) Students and student loan borrowers.
    (2) U.S. military service members, veterans, or groups representing 
them.
    (3) Legal assistance organizations that represent students and/or 
borrowers.
    (4) Civil rights organizations and consumer advocacy organizations.
    (5) State Attorneys General.
    (6) State higher education executive officers, State authorizing 
agencies, and/or State regulators of institutions of higher education 
and/or loan servicers.
    (7) Financial aid administrators at postsecondary institutions.
    (8) Two-year public institutions of higher education.
    (9) Four-year public institutions of higher education.
    (10) Private nonprofit institutions of higher education.
    (11) Proprietary institutions.
    (12) 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.
    (13) 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.

Advisors

    The Department also invites nominations for two advisors who will

[[Page 69609]]

serve as a resource to the committee. These advisors will not be 
members of the committee and will not impact consensus. We seek an 
advisor from each of the following categories:
    (1) A labor economist or an individual with experience in policy 
research, accountability, and/or analysis of higher education data.
    (2) A compliance auditor with experience auditing institutions that 
participate in the title IV, HEA programs.
    The advisors will be expected to be available throughout the 
duration of the Institutional and Programmatic Eligibility Committee 
meetings.

Nominations

    We request that nominations include the information described in 
this section.
    (1) The name of the nominee;
    (2) The name of the constituency, constituencies, or advisor 
category for which the nominee is being nominated (see Constituencies 
for Negotiator Nominations);
    (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 or in the advisor subject 
matter categories; and
    (5) The nominee's contact information, including the nominee's 
email address, telephone number, and mailing address.
    Please see the ADDRESSES section for submission information. We 
will confirm receipt of nominations to the submitter. 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 January 18, 2022, committee meeting.

Schedule for Negotiations

    The Institutional and Programmatic Eligibility Committee will meet 
for three sessions on the following dates:
    Session 1: January 18-21, 2022, 10:00 a.m. to 12:30 p.m. and 1:00 
p.m. to 4:30 p.m. with a public comment period from approximately 4:00 
p.m. to 4:30 p.m. (Eastern time).
    Session 2: February 14-18, 2022, 10:00 a.m. to 12:00 p.m. and 1:00 
p.m. to 4:00 p.m. with a public comment period from approximately 3:30 
p.m. to 4:00 p.m. (Eastern time).
    Session 3: March 14-18, 2022, 10:00 a.m. to 12:00 p.m. and 1:00 
p.m. to 4:00 p.m. with a public comment period from approximately 3:30 
p.m. to 4:00 p.m. (Eastern time).
    All sessions 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 (except for the final day of Session 3), 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 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 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,
Deputy Assistant Secretary for Higher Education Programs Delegated the 
Authority to Perform the Functions and Duties of the Assistant 
Secretary, Office of Postsecondary Education.
[FR Doc. 2021-26571 Filed 12-7-21; 8:45 am]
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