The Public Hearings and Comments

This year's negotiated rulemaking will be unlike any other in that it will likely be held virtually due to the continued COVID-19 pandemic. Before the actual rulemaking begins, the Department will hold three days of virtual hearings to establish the rulemaking agenda and committees on June 21st, 23rd, and 24th. You can find the official notice in the federal register here.

Public hearing transcripts and recordings can be found below:

• June 21, 2021 video and transcript
• June 23, 2021 video and transcript
• June 24, 2021 video and transcript
• October 26, 2021 video and transcript (90/10 comments only)
• October 27, 2021 video and transcript (90/10 comments only)

The Department invited organizations and groups that are significantly affected by the topics covered in the rulemaking to submit comments—these can be oral comments presented during the hearings or written comments submitted by July 1st. Organizations can also submit comments suggesting ED consider topics not listed in the original agenda. You can find New America's submitted written comments here. Other comments can be found here.

The Department of Education proposed rulemaking on a whopping fourteen topics, arguably the most ambitious neg reg list of possible topics to date. ED’s suggested topics in this year's negotiated rulemaking include:

1. Change of ownership and change in control of institutions of higher education under 34 CFR 600.31;
2. Certificates of 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, and 685.213;
7. Closed school discharges under 34 CFR 685.214 and 682.402;
8. Discharges for false certification of student eligibility under 34 CFR 685.215(a)(1) and 682.402;
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 provision in institutions' enrollment agreements (formerly under 34 CFR 685.300) and associated counseling about such agreements 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.

Additionally, the Department invited public input on how it could address gaps in student outcomes such as retention, completion, loan repayment, and student loan default by race, ethnicity, gender, and other key student characteristics through its regulation. These topics are just the ones the Department has suggested, but it will be listening for other topics that the public suggests in oral and written comments.

On October 4th, 2021, the Department published their intent to establish a negotiated rulemaking committee on the 90/10 rule.