On October 4, 2021, the Department announced their intention to conduct negotiated rulemaking on the 90/10 rule pursuant to the provisions in Section 2013 of the American Rescue Plan Act of 2021 (“ARPA”). The Department also announced two public hearings for interested parties to provide comment.
Section 2013 of the American Rescue Plan Act of 2021 (ARP) amended HEA section 487(a)(24) to require that a proprietary institution 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.” Section 2013(c)(2) of the ARP provides that regulations developed and published on 90/10 by the Department will not be effective until on or after January 1, 2023.
The notice further indicates that the Department intends to develop proposed regulations affecting institutional and programmatic eligibility, including the 90/10 rule. This language leaves open the possibility that the committee may consider additional regulatory changes. The scheduled public hearings, however, are limited to comments on 90/10. They will announce the topics and schedule of committee meetings in a subsequent Federal Register notice.
The public hearings are scheduled for October 26, 2021, from 2:00 p.m. to 4:00 p.m., Eastern time, and on October 27, 2021, from 10:00 a.m. to 12:00 p.m., Eastern time. Individuals who would like to comment at one of the public hearings must register by sending an email to firstname.lastname@example.org no later than 12:00 p.m. Eastern time on the business day prior to the public hearing at which they want to speak. The request should include the name of the speaker and one or more dates and times during which the individual would be available to speak. Comments are limited to three minutes.
The Department will also accept written comments through November 3, 2021. Comments may be submitted via the Federal eRulemaking portal: www.regulations.gov and by postal mail, commercial delivery, or hand delivery addressed to Brian Schelling, U.S. Department of Education, 400 Maryland Ave. SW, Room 2C188, Washington, DC 20202.
All comments should include the Docket ID Number: ED-2021-OPE-0077.
Schedule for Negotiations
The Department indicated that any committee(s) established after the public hearings would begin virtual negotiations no earlier than January 2022. They expect negotiations to occur during three sessions of five days each with approximately four weeks between sessions.
We recommend that all interested and affected parties consider participating in the public hearings or submitting a written comment.