Summary: Proposed Rulemaking Student Eligibility. Comments on this NPRM must be received no later than September 14, 1999.
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[Federal Register: July 16, 1999 (Volume 64, Number 136)]
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Department of Education
34 CFR Part 668
Student Assistance General Provisions; Proposed Rule
DEPARTMENT OF EDUCATION
34 CFR Part 668
Student Assistance General Provisions
AGENCY: Department of Education.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Secretary proposes to amend the regulations governing
student eligibility for the student financial assistance programs
authorized under Title IV of the Higher Education Act of 1965, as
amended (Title IV, HEA programs). These programs include the Federal
Pell Grant Program, the campus-based programs (Federal Perkins Loan,
Federal Work-Study (FWS), and Federal Supplemental Educational
Opportunity Grant (FSEOG) Programs), the William D. Ford Federal Direct
Loan (Direct Loan) Program, the Federal Family Education Loan (FFEL)
Program, and the Leveraging Educational Assistance Partnership (LEAP)
Program (formerly called the State Student Incentive Grant (SSIG)
Program). The proposed regulations implement changes made to the Higher
Education Act of 1965, as amended (HEA), by the Higher Education
Amendments of 1998 (1998 Amendments). Most of the proposed changes
simply conform current regulatory provisions to the statutory changes.
DATES: We must receive your comments on or before September 14, 1999.
ADDRESSES: Address all comments about these proposed regulations to
Lloyd Horwich, U.S. Department of Education, P.O. Box 23272,
Washington, DC 20202-3272. If you prefer to send your comments through
the Internet, use the following address: email@example.com.
FOR FURTHER INFORMATION CONTACT: Lloyd Horwich. Telephone (202) 708-
8242. If you use a telecommunications device for the deaf (TDD), you
may call the Federal Information Relay Service (FIRS) at 1-800-877-
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations at Regional Office Building
3, 7th and D Streets, SW, Room 3045, Washington, DC, between 8:30 a.m.
and 4:00 p.m., Eastern time, Monday through Friday (excluding Federal
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, you can call (202) 205-
8113 or (202) 260-9895. If you use a TDD, you may call the Federal
Information Relay Service at 1-800-877-8339.
Summary of Proposed Changes
The Secretary proposes to revise the current Student Assistance
General Provisions, 34 CFR part 668, concerning student eligibility for
financial assistance programs authorized under Title IV, HEA. The
revisions implement changes made by the 1998 Amendments (Public Law
105-244, enacted October 7, 1998).
Negotiated Rulemaking Process
Section 492 of the HEA requires that, before publishing any
proposed regulations to implement programs under Title IV of the Act,
the Secretary obtain public involvement in the development of the
proposed regulations. After obtaining advice and recommendations, the
Secretary must conduct a negotiated rulemaking process to develop the
proposed regulations. All published proposed regulations must conform
to agreements resulting from the negotiated rulemaking process unless
the Secretary reopens the negotiated rulemaking process or provides a
written explanation to the participants in that process why the
Secretary has decided to depart from the agreements.
To obtain public involvement in the development of the proposed
regulations, we published a notice in the Federal Register (63 FR
59922, November 6, 1998) requesting advice and recommendations from
interested parties concerning what regulations were necessary to
implement Title IV of the HEA. We also invited advice and
recommendations concerning which regulated issues should be subjected
to a negotiated rulemaking process. We further requested advice and
recommendations concerning ways to prioritize the numerous issues in
Title IV, in order to meet statutory deadlines. Additionally, we
requested advice and recommendations concerning how to conduct the
negotiated rulemaking process, given the time available and the number
of regulations that needed to be developed.
In addition to soliciting written comments, we held three public
hearings and several informal meetings to give interested parties an
opportunity to share advice and recommendations with the Department.
The hearings were held in Washington, DC, Chicago, and Los Angeles, and
we posted transcripts of those hearings to the Department's Information
for Financial Aid Professionals website (http://ifap.ed.gov).
We then published a second notice in the Federal Register (63 FR
71206, December 23, 1998) to announce the Department's intention to
establish four negotiated rulemaking committees to draft proposed
regulations implementing Title IV of the HEA. The notice announced the
organizations or groups believed to represent the interests that should
participate in the negotiated rulemaking process and announced that the
Department would select participants for the process from nominees of
those organizations or groups. We requested nominations for additional
participants from anyone who believed that the organizations or groups
listed did not adequately represent the list of interests outlined in
section 492 of the HEA. Once the four committees were established, they
met to develop proposed regulations over the course of several months,
beginning in January.
The proposed regulations contained in this NPRM reflect the final
consensus of Committee III, which was made up of the following members:
Accrediting Commission of Career Schools and Colleges of Technology
American Association of Collegiate Registrars and Admissions
American Association of Community Colleges
American Association of Cosmetology Schools
American Association of State Colleges and Universities
American Council on Education
Association of American Universities
Career College Association
Coalition of Higher Education Assistance Organizations
Education Finance Council
Legal Services Counsel/Legal Aid (a coalition)
National Association of College and University Business Officers
National Association for Equal Opportunity in Higher Education
National Association of Graduate/Professional Students
National Association of Independent Colleges and Universities
National Association of State Student Grant and Aid Programs/
National Council of Higher Education Loan Programs (a coalition)
National Association of State Universities and Land-Grant Colleges
National Association of Student Financial Aid Administrators
National Direct Student Loan Coalition
The College Board
The College Fund/United Negro College Fund
United States Department of Education
United States Student Association
U.S. Public Interest Research Group
As stated in the committee protocols, consensus means that there
must be no dissent by any member in order for the committee to be
considered to have reached agreement. Consensus was reached on all of
the proposed regulations in this document.
Section 668.32 Student Eligibility--General
Section 484(d) of the HEA, as amended by the 1998 Amendments,
allows a student who completes a secondary school education in a home
school that is treated as a home school or private school under State
law to be eligible to receive Title IV, HEA program funds. The
Secretary proposes to amend Sec. 668.32(e) to reflect that change.
The negotiating committee discussed the language of the 1998
Amendments, and how different States oversee home schools, and
concluded that the statute would be implemented best by not adding any
additional eligibility requirements for a home-schooled student beyond
his or her State's home-school completion requirements.
Under proposed Sec. 668.32(e)(4), to be eligible to receive Title
IV, HEA program funds, a home-schooled student must satisfy the home-
school completion requirements of the State in which the student was
home-schooled. Thus, if a State requires a home-schooled student to
obtain a secondary school completion credential for home-school study
that is more than an attestation that the student was exempt from the
State's mandatory school attendance law, the student must obtain such a
credential to be eligible for Title IV, HEA program funds. If the State
does not require the student to obtain such a credential, the student
will satisfy Sec. 668.32(e)(4) based on the exemption from the State's
mandatory school attendance law.
For purposes of Title IV, HEA program aid, the Secretary will allow
a home-schooled student to self-certify his or her eligibility in the
same way a high school graduate or GED recipient may.
Statement of Educational Purpose
The proposed regulations amend Sec. 668.32(h), which governs a
student's filing of his or her Statement of Educational Purpose, to
comply with changes made to the HEA by the 1998 Amendments. Previously,
a student who received a loan under the FFEL program had to file the
Statement with the lender. Under proposed Sec. 668.32(h), a student
simply would be required to file the Statement with the Secretary.
Technical Corrections and Cross-References
The Secretary proposes to amend Sec. 668.32(k)(7) to reflect the
name-change of the SSIG program to the LEAP program. The Secretary
proposes to add as Sec. 668.32(l) a cross-reference that reflects the
student eligibility criterion concerning drug convictions added by the
1998 Amendments and implemented by the proposed addition of
Section 668.38 Enrollment in Telecommunications and Correspondence
Prior to the 1998 Amendments, section 484(l) of the HEA provided
that a student enrolled in a telecommunications course would not be
considered to be enrolled in a correspondence course under certain
circumstances, including that the student was enrolled in a program
that led to an associate, bachelor, or graduate degree. The 1998
Amendments amended section 484(l) by adding another category of
students to be similarly treated: students who are enrolled in programs
of one academic year or longer that lead to a certificate. The proposed
regulations amend Sec. 668.38(b) to reflect that change.
Thus, under proposed Sec. 668.38(b), the Secretary does not
consider a student enrolled in a telecommunications course at an
institution of higher education (as defined in Sec. 668.38(b)(2)) to be
enrolled in a correspondence course, if the student is enrolled in a
program described in the preceding paragraph, and the number of
telecommunications and correspondence courses offered by the
institution is less than half the total number of courses offered by
The 1998 Amendments also restricted the type of institution at
which telecommunications courses can be considered not to be
correspondence courses. Proposed Sec. 668.38(b)(2) reflects that
restriction. It defines an institution of higher education as one which
is not described in section 521(4)(C) of the Carl D. Perkins Vocational
and Applied Technology Education Act, and at which at least half of the
programs of study lead to an associate, bachelor, or graduate degree.
If the student is enrolled in telecommunications courses at an
institution other than an institution of higher education as defined by
proposed Sec. 668.38(b)(2), those courses are considered correspondence
Section 668.40 Suspension of Eligibility for Drug-Related Offenses
The 1998 Amendments added section 484(r) to the HEA. Under that
subsection, a student who has been convicted under Federal or State law
of possession or sale of a controlled substance, regardless of when the
conviction occurred, is ineligible for Title IV, HEA program funds for
the period specified in that subsection.
The periods of ineligibility, which begin as of the date of the
conviction, are as follows:
If convicted of an offense involving the possession of a controlled
substance, the ineligibility period is:
First offense............................ 1 year.
Second offense........................... 2 years.
Third offense............................ Indefinite.
If convicted of an offense involving the sale of a controlled
substance, the ineligibility period is:
First offense............................ 2 year.
Second offense........................... Indefinite.
The Secretary proposes to add Sec. 668.40(a) and (b) to implement
those statutory provisions. Note that for purposes of determining a
eligibility for Title IV assistance, a conviction means a conviction
that is on a student's record at the time the student's eligibility is
being determined. Therefore, a conviction that was reversed, set aside,
or removed from the student's record is not relevant.
Because the statutory ineligibility periods begin on the date of
conviction, if a student has been convicted of both possession and sale
of a controlled substance and the two ineligibility periods overlap,
the periods run concurrently for the time during which they overlap.
The start of the ineligibility period for the later conviction is not
postponed until the ineligibility period for the earlier conviction
ends. For example, if a student is convicted on July 1, 2000 for the
first time for possession of a controlled substance and convicted on
January 1, 2001 for the first time for sale of a controlled substance,
the student will regain eligibility on January 1, 2003.
Section 484(r) of the HEA further provides that a student can
regain eligibility, regardless of the number or type of convictions on
the student's record, by successfully completing a drug rehabilitation
program that complies with criteria established by the Secretary and
that includes two unannounced drug tests. The proposed regulations
establish criteria for an acceptable drug rehabilitation program in
Sec. 668.40(d)(2). Under the proposed criteria, a drug rehabilitation
program must (1) have received or be qualified to receive funds
directly or indirectly under a Federal, State, or local government
program, (2) be administered or recognized by a Federal, State, or
local government agency or court, (3) have received or be qualified to
receive payment directly or indirectly from a State-licensed insurance
company, or (4) be administered or recognized by a State-licensed
hospital, health clinic or medical doctor. The Secretary believes, and
the rest of Committee III concurs, that these criteria would ensure the
availability of a wide-range of opportunities for students to regain
their eligibility, and that an acceptable drug rehabilitation program
would have to be approved by an entity qualified to make such an
Having reviewed the language of the new statutory provision and its
legislative history, the Secretary believes, and the rest of Committee
III concurs, that Congress intended the drug rehabilitation relief
provision to be available at the same time students are subject to the
loss of eligibility. Members of Congress specifically indicated in
statements on the floor of Congress that students should be able to
regain Title IV, HEA program eligibility if they complete a
rehabilitation program. Since the HEA requires that acceptable
rehabilitation programs comply with criteria prescribed by the
Secretary in regulations and such regulations (as proposed in this
NPRM) will not be effective until July 1, 2000, this new student
eligibility provision will not be implemented until July 1, 2000. Until
that time no student will be determined to be ineligible for Title IV
assistance under the new provision.
Nonetheless, a student's actions between now and the effective date
of the regulations may affect eligibility. For example, a first
conviction for possession of a controlled substance on February 1,
2000, will make a student ineligible for Title IV assistance from July
1, 2000--the effective date of the regulations--through January 31,
2001--one year from the date of the conviction. If the conviction were
the student's second, the student would not regain eligibility until
February 1, 2002. Because of the serious consequences to some students
of the new provision and because there are certain actions that they
could take to mitigate those consequences, the Secretary strongly
encourages, but is not requiring, institutions to inform their students
of this provision and to help students understand how their actions
might affect their future eligibility. For example, students whose
Title IV assistance otherwise would be jeopardized under the new law
can avoid a loss of eligibility by completing an acceptable drug
rehabilitation program before July 1, 2000.
The Secretary will not require institutions to question their
Federal aid applicants about drug-related matters. The Secretary
intends to use the 2000-2001 aid applicantion processes--Free
Applications for Federal Student Aid (FAFSA) and Student Aid Report
(SAR)--to collect needed informatiom from applicants and to report the
results to schools on Institutional Student Information Records
(ISIRs). The Secretary has been working with representatives from the
higher education community in planning these new and sensitive
processes, and will keep the community updated as these plans are
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined as necessary for administering this program effectively and
In assessing the potential costs and benefits of this regulatory
action--both quantitative and qualitative--we have determined that the
benefits would justify the costs.
We have also determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
We note that, as these proposed regulations were subject to
negotiated rulemaking, the costs and benefits of the various
requirements were discussed thoroughly by negotiators. The resultant
consensus reached on a particular requirement generally reflected
agreement on the best possible approach to that requirement in terms of
cost and benefit.
To assist the Department in complying with the specific
requirements of Executive Order 12866, the Secretary invites comments
on whether there may be further opportunities to reduce any potential
costs or to increase any potential benefits resulting from these
proposed regulations without impeding the effective and efficient
administration of the Title IV, HEA programs.
Elsewhere in this preamble, we discuss the potential costs and
benefits of these proposed regulations under the heading Regulatory
Flexibility Act Certification.
2. Clarity of the Regulations
Executive Order 12866 and the President's Memorandum of June 1,
1998 on ``Plain Language in Government Writing'' require each agency to
write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
<bullet> Are the requirements in the proposed regulations clearly
<bullet> Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
<bullet> Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
<bullet> Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 668.32, Student eligibility--general.)
<bullet> Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
<bullet> What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
Entities affected by these regulations are institutions of higher
education that participate in the Title IV, HEA programs. These
institutions are defined as small entities, according to the U.S. Small
Business Administration, if they are: for-profit or nonprofit entities
with total revenue of $5,000,000 or less; or entities controlled by
governmental entities with populations of 50,000 or less. These
proposed regulations would not impose a significant economic impact on
a substantial number of small entities. The regulations would benefit
both small and large institutions, without requiring significant
changes to current institutional system operations, through: the
further simplification of the filing of a student's Statement of
Educational Purpose; and the expansion of Title IV eligibility
provisions regarding home-schooled students and students enrolled in
telecommunications and correspondence courses. These proposed
regulations also implement the new statutory criterion for Title IV
eligibility concerning convictions for possession or sale of a
controlled substance. This provision was discussed extensively as part
of the negotiated rulemaking process, and the Secretary believes that
the proposal to implement this change through the use of the student
aid application processes is the best approach and would prevent
unnecessary administrative burden on institutions.
The Secretary invites comments from small institutions as to
whether the proposed changes would have a significant economic impact
Paperwork Reduction Act of 1995
These proposed regulations do not contain any information
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR Part 79.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
Electronic Access to This Document
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List of Subjects in 34 CFR Part 668
Administrative practice and procedure, Colleges and universities,
Student aid, Reporting and recordkeeping requirements.
Dated: July 8, 1999.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance numbers: 84.007 Federal
Supplemental Educational Opportunity Grant Program; 84.032
Consolidation Program; 84.032 Federal Stafford Loan Program; 84.032
Federal PLUS Program; 84.032 Federal Supplemental Loans for Students
Program; 84.033 Federal Work-Study Program; 84.038 Federal Perkins
Loan Program; 84.063 Federal Pell Grant Program; 84.069 LEAP; and
84.268 William D. Ford Federal Direct Loan Programs)
The Secretary proposes to amend part 668 of title 34 of the Code of
Federal Regulations as follows:
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
1. The authority citation for part 668 is amended to read as
Authority: 20 U.S.C. 1001, 1002, 1003, 1085, 1088, 1091, 1092,
1094, 1099c, and 1099c-1, unless otherwise noted.
2. Section 668.32 is amended as follows:
A. In paragraph (e)(2), by removing ``or'';
B. In paragraph (e)(3), by removing the period at the end of the
paragraph and adding in its place a semi-colon, and adding ``or'' after
C. By adding a new paragraph (e)(4) to read as follows;
D. In paragraph (h), by removing ``or in the case of a loan made
under the FFEL Program, with the lender'';
E. In paragraph (j), by removing the ``and'' after the semi-colon;
F. In paragraph (k)(7), by removing ``SSIG'' and adding in its
place, ``LEAP,'' by removing the period at the end of the paragraph and
adding in its place a semi-colon, and adding ``and'' after the semi-
G. By adding paragraph (l) to read as follows.
Sec. 668.32 Student eligibility--general.
* * * * *
(e) * * *
(4) Was home-schooled, and either--
(i) Obtained a secondary school completion credential for home
school (other than a high school diploma or its recognized equivalent)
provided for under State law; or
(ii) If State law does not require a home-schooled student to
obtain the credential described in paragraph (e)(4)(i) of this section,
has completed a secondary school education in a home school setting
that qualifies as an exemption from compulsory attendance requirements
under State law.
* * * * *
(l) Is not ineligible under 34 CFR 668.40.
3. Section 668.38 is amended by revising paragraph (b) to read as
Sec. 668.38 Enrollment in telecommunications and correspondence
* * * * *
(b) (1) For purposes of this section, a student enrolled in a
telecommunications course at an institution of higher education is not
enrolled in a correspondence course, if--
(i) The student is enrolled in a program that leads to a
certificate for a program of study of 1 year or longer, or an
associate, bachelor, or graduate degree; and
(ii) The number of telecommunications and correspondence courses
the institution offered during its latest completed
award year was fewer than 50 percent of all the courses the institution
offered during that same year.
(2) For purposes of paragraph (b)(1) of this section, an
institution of higher education is one--
(i) That is not an institute or school described in section
521(4)(C) of the Carl D. Perkins Vocational and Applied Technology Act;
(ii) At which at least 50 percent of the programs of study offered
by the institution during its latest completed award year led to an
associate, bachelor, or graduate degree.
(3) For purposes of paragraph (b)(1)(ii) of this section, the
institution must calculate the number of courses using the provisions
contained in 34 CFR 600.7(b)(2).
4. Section 668.40 is added to read as follows:
668.40 Conviction for possession or sale of illegal drugs.
(a)(1) A student is ineligible to receive Title IV, HEA program
funds if the student has been convicted of an offense involving the
possession or sale of illegal drugs for the period described in
paragraph (b) of this section. However, the student may regain
eligibility before that period expires under the conditions described
in paragraph (c) of this section.
(2) For purposes of this section, a conviction means only a
conviction that is on a student's record at the time the student's
eligibility is being determined. A conviction that was reversed, set
aside, or removed from the student's record is not relevant for
purposes of this section.
(3) For purposes of this section, an illegal drug is a controlled
substance as defined by section 102(6) of the Controlled Substances Act
(21 U.S.C. 801(6)), and does not include alcohol or tobacco.
(b)(1) Possession. Except as provided in paragraph (c) of this
section, if a student has been convicted--
(i) Only one time for possession of illegal drugs, the student is
ineligible to receive Title IV, HEA program funds for one year after
the date of conviction;
(ii) Two times for possession of illegal drugs, the student is
ineligible to receive Title IV, HEA program funds for two years after
the date of the second conviction; or
(iii) Three or more times for possession of illegal drugs, the
student is ineligible to receive Title IV, HEA program funds for an
indefinite period after the date of the third conviction.
(2) Sale. Except as provided in paragraph (c) of this section, if a
student has been convicted--
(i) Only one time for sale of illegal drugs, the student is
ineligible to receive Title IV, HEA program funds for two years after
the date of conviction; or
(ii) Two or more times for sale of illegal drugs, the student is
ineligible to receive Title IV, HEA program funds for an indefinite
period after the date of the second conviction.
(c) If a student successfully completes a drug rehabilitation
program described in paragraph (d) of this section after the student's
most recent drug conviction, the student regains eligibility on the
date the student successfully completes the program.
(d) A drug rehabilitation program referred to in paragraph (c) of
this section is one which--
(1) Includes at least two unannounced drug tests; and
(2)(i) Has received or is qualified to receive funds directly or
indirectly under a Federal, State, or local government program;
(ii) Is administered or recognized by a Federal, State, or local
government agency or court;
(iii) Has received or is qualified to receive payment directly or
indirectly from a State-licensed insurance company; or
(iv) Is administered or recognized by a State-licensed hospital,
health clinic or medical doctor.
(Authority: 20 U.S.C. 1091(r))
[FR Doc. 99-18175 Filed 7-15-99; 8:45 am]
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