82_FR_49318 82 FR 49114 - Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant Program

82 FR 49114 - Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant Program

DEPARTMENT OF EDUCATION

Federal Register Volume 82, Issue 204 (October 24, 2017)

Page Range49114-49121
FR Document2017-22851

Consistent with section 553(b)(3)(B) and (d)(3) of the Administrative Procedure Act (APA), which allows Federal agencies to promulgate rules without advance notice and opportunity for comment for good cause, the Secretary issues this interim final rule with request for comment. This interim final rule delays until July 1, 2018, the effective date of selected provisions of the final regulations entitled Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan (FFEL) Program, William D. Ford Federal Direct Loan Program, and Teacher Education Assistance for College and Higher Education Grant Program (the final regulations), published in the Federal Register on November 1, 2016. The provisions this interim final rule delays are listed in the SUPPLEMENTARY INFORMATION section of this document. The original effective date of the final regulations was July 1, 2017.

Federal Register, Volume 82 Issue 204 (Tuesday, October 24, 2017)
[Federal Register Volume 82, Number 204 (Tuesday, October 24, 2017)]
[Rules and Regulations]
[Pages 49114-49121]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-22851]


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DEPARTMENT OF EDUCATION

34 CFR Parts 668, 674, 682, and 685

[Docket ID ED-2017-OPE-0108]
RIN 1840-AD25


Student Assistance General Provisions, Federal Perkins Loan 
Program, Federal Family Education Loan Program, William D. Ford Federal 
Direct Loan Program, and Teacher Education Assistance for College and 
Higher Education Grant Program

AGENCY: Office of Postsecondary Education, Department of Education.

ACTION: Interim final rule; delay of effective date; request for 
comments.

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SUMMARY: Consistent with section 553(b)(3)(B) and (d)(3) of the 
Administrative Procedure Act (APA), which allows Federal agencies to 
promulgate rules without advance notice and opportunity for comment for 
good cause, the Secretary issues this interim final rule with request 
for comment. This interim final rule delays until July 1, 2018, the 
effective date of selected provisions of the final regulations entitled 
Student Assistance General Provisions, Federal Perkins Loan Program, 
Federal Family Education Loan (FFEL) Program, William D. Ford Federal 
Direct Loan Program, and Teacher Education Assistance for College and 
Higher Education Grant Program (the final regulations), published in 
the Federal Register on November 1, 2016. The provisions this interim 
final rule delays are listed in the SUPPLEMENTARY INFORMATION section 
of this document. The original effective date of the final regulations 
was July 1, 2017.

DATES: Effective date: As of October 24, 2017, the effective date for 
the amendments to or additions of: Sec. Sec.  668.14(b)(30), (31), and 
(32); 668.41(h) and (i); 668.71(c); 668.90(a)(3); 668.93(h), (i), (j); 
668.171; 668.175 (c) and (d) and (f) and (h); Appendix C to Subpart L 
of Part 668; 674.33(g)(3) and (g)(8); 682.202(b)(1); 682.211(i)(7); 
682.402(d)(3), (d)(6)(ii)(B)(1) and (2), (d)(6)(ii)(F) introductory 
text, (d)(6)(ii)(F)(5), (d)(6)(ii)(G), (d)(6)(ii)(H)

[[Page 49115]]

through (K), (d)(7)(ii) and (iii), (d)(8), and (e)(6)(iii); 
682.405(b)(4); 682.410(b)(4) and (b)(6)(viii); 685.200(f)(3)(v) and 
(f)(4)(iii); 685.205(b)(6); 685.206(c); 685.212(k); 685.214(c)(2), 
(f)(4) through (7); 685.215(a)(1), (c)(1) through (c)(8), and (d); 
685.222; Appendix A to Subpart B of Part 685; and 685.308(a), published 
November 1, 2016, at 81 FR 75926, and delayed until further notice on 
June 16, 2017, in 82 FR 27621, is further delayed until July 1, 2018.
    Comment date: We must receive your comments on or before November 
24, 2017.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
    If you are submitting comments electronically, we strongly 
encourage you to submit any comments or attachments in Microsoft Word 
format. If you must submit a comment in Portable Document Format (PDF), 
we strongly encourage you to convert the PDF to print-to-PDF format or 
to use some other commonly used searchable text format. Please do not 
submit the PDF in a scanned format. Using a print-to-PDF format allows 
the Department to electronically search and copy certain portions of 
your submissions.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``Help.''
     Postal Mail, Commercial Delivery, or Hand Delivery: The 
Department strongly encourages commenters to submit their comments 
electronically. However, if you mail or deliver your comments about the 
interim final rule, address them to Jean-Didier Gaina, U.S. Department 
of Education, 400 Maryland Ave. SW., Mail Stop 6W247, Washington, DC 
20202.
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing on the 
Federal eRulemaking Portal at www.regulations.gov. Therefore, 
commenters should be careful to include in their comments only 
information that they wish to make publicly available.

FOR FURTHER INFORMATION CONTACT: Barbara Hoblitzell, U.S. Department of 
Education, 400 Maryland Ave. SW., Mail Stop 6W247, Washington, DC 
20202. Telephone: (202) 453-7583 or by email at: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:
    Invitation to Comment: We invite you to submit comments regarding 
this interim final rule. We will consider comments on the delayed 
effective date only and will not consider comments on the wording or 
substance of the final regulations. See ADDRESSES for instructions on 
how to submit comments.
    During and after the comment period, you may inspect all public 
comments about this interim final rule by accessing Regulations.gov. 
You may also inspect the comments in person in Room 6W245, 400 Maryland 
Avenue SW., Washington, DC, between 8:30 a.m. and 4:00 p.m. Washington, 
DC time, Monday through Friday of each week, except Federal holidays. 
If you want to schedule time to inspect comments, please contact the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this interim final rule. If you want to 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Delay of Effective Date

    On May 24, 2017, the California Association of Private 
Postsecondary Schools (CAPPS) filed a Complaint and Prayer for 
Declaratory and Injunctive Relief in the United States District Court 
for the District of Columbia (Court) challenging the final regulations 
in their entirety, and in particular those provisions of the 
regulations pertaining to the standard and process for the Department 
to adjudicate borrower defense claims, requirements pertaining to 
financial responsibility standards, provisions requiring proprietary 
institutions to provide warnings about their students' loan repayment 
rates, and prohibitions against institutions including arbitration or 
class action waivers in their agreements with students. Complaint and 
Prayer for Declaratory and Injunctive Relief, California Association of 
Private Postsecondary Schools v. DeVos, No. 1:17-cv-00999 (D.D.C. May 
24, 2017). As of the date of this interim final rule, the litigation is 
ongoing.
    In light of the pending litigation, on June 16, 2017, the 
Department published in the Federal Register a notification of the 
partial delay of effective dates under section 705 of the APA (5 U.S.C. 
705) (82 FR 27621) (705 Notice), to delay the effectiveness of certain 
provisions of the final regulations until the legal challenge is 
resolved. The 705 Notice postponed the effective date of the 
regulations to preserve the regulatory status quo while the litigation 
is pending and the Court makes a decision. As explained in the 705 
Notice, the plaintiff has raised serious questions concerning the 
validity of certain provisions of the final regulations and has 
identified substantial injuries that could result if they go into 
effect before those questions are resolved. Given the legal 
uncertainty, maintaining the status quo is critical. For instance, if 
the final regulations took effect, institutions participating in 
programs under title IV of the Higher Education Act of 1965, as amended 
(HEA), would have been required, as of July 1, 2017, to modify their 
contracts in accordance with the arbitration and class action waiver 
regulations. Postponing the final regulations avoids the cost that 
institutions would incur in making these changes while the final 
regulations are subject to judicial review. Meanwhile, the Department 
is continuing to process borrower defense claims under the existing 
regulations that will remain in effect during the postponement.
    Because the final regulations have been postponed beyond July 1, 
2017, pursuant to the 705 Notice, the postponement of the final 
regulations must be for at least one year to comply with section 482 of 
the HEA (20 U.S.C. 1089). That section imposes a requirement (the 
``master calendar requirement'') on the Department for the effective 
date of regulations affecting programs under title IV of the HEA. Under 
the master calendar requirement, a regulatory change that has been 
published in final form on or before November 1 prior to the start of 
an award year--which begins on July 1 of any given year--may take 
effect only at the beginning of the next award year, or

[[Page 49116]]

in other words, on July 1 of the next year. Any regulatory change that 
has not been published in final form by November 1 prior to the start 
of an award year may not become effective until the beginning of the 
second award year after the November 1 date.
    The master calendar requirement provides that regulatory changes 
affecting the title IV programs must become effective at the beginning 
of an award year and does not authorize the Department to make a 
regulatory change affecting the title IV programs effective in the 
middle of an award year.\1\ Accordingly, regulations promulgated under 
title IV of the HEA have an effective date of July 1. Congress enacted 
the master calendar requirement to ensure that institutions have 
sufficient notice of the timing of any regulatory change in order to 
implement regulatory changes at the start of each award year. In this 
way, institutions avoid incurring the costs of compliance on a rolling 
basis throughout the year and avoid any disruption to the timely 
delivery of title IV funds. See S. Rep. No. 99-296, at 11 (1986); see 
also Reauthorization of the Higher Education Act, 1985: Hearings Before 
the S. Subcomm. On Educ., Arts and Humanities, 99th Cong. 10 (1985) 
(statement of the Conference on Higher Education) (``Although progress 
will always require updating, there is an equally important need for 
stability so that proper planning by all those involved--including 
families, aid administrators, and agency officials--can be 
achieved.'').
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    \1\ We note that in the limited circumstance where the Secretary 
designates a regulation for early implementation pursuant to 20 
U.S.C. 1089(c)(2), regulated parties may choose to implement the 
regulation before the July 1 effective date. Early implementation, 
however, does not change the effective date of the regulation.
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    Congress has been clear that ``the effective dates of all 
regulations on Title IV are driven by the Master Calendar requirements 
in Section 482,'' H.R. Rep. No. 102-447, at 77 (1992), and it has 
reaffirmed the breadth of the master calendar requirement by providing 
express waivers of the requirement only in specific limited 
circumstances. See, e.g., Higher Education Opportunity Act, Public Law 
110-315, sec. 402(b), 122 Stat. 3078, 3191 (2008); Higher Education 
Act--Technical Corrections, Public Law 111-39, sec. 409, 123 Stat. 
1950, 1953 (2009). Accordingly, the Department has consistently 
interpreted and applied the master calendar requirement to provide that 
any regulatory change relating to student financial aid programs may 
take effect only at the beginning of an award year.
    With respect to the final regulations, implementing this 
substantial regulatory change in the middle of an award year would 
frustrate the notice objectives of the HEA and deny schools the 
assurance of the master calendar. For the July 1, 2017, postponement to 
be consistent with the HEA, therefore, the effective date must be July 
1, 2018 (or July 1 of a later year). Because the 705 Notice does not 
establish a specific effective date but is tied to the pending 
litigation, this interim final rule provides the public and regulated 
parties notice that even if the litigation concludes before July 1, 
2018, the final regulations will not take effect until that date 
consistent with the master calendar requirement.
    Separately, we note that the delayed effective date is consistent 
with the Memorandum for the Heads of Executive Departments and Agencies 
entitled ``Regulatory Freeze Pending Review,'' published in the Federal 
Register on January 24, 2017 (Memorandum), which was intended to ensure 
that the President's appointees or designees have the opportunity to 
review any new or pending regulations and where appropriate to suggest 
changes. Among other things, the Memorandum directed the heads of 
executive departments and agencies to consider temporarily postponing 
the effective dates of all regulations that had been published in the 
Federal Register but had not yet taken effect. In addition, on February 
24, 2017, the President issued Executive Order 13777, which requires 
each agency head to consider recommendations to repeal, replace, or 
modify existing regulations, consistent with applicable law. In 
accordance with these evaluative efforts, we announced on June 16, 
2017, our intent to engage in negotiated and notice-and-comment 
rulemaking on the topics addressed by the final regulations on (82 FR 
27640). The Department is reevaluating its regulations in this area and 
the burdens on regulated parties may change.
    To provide adequate notice to these parties in accordance with the 
HEA's master calendar requirement, the Department has determined that 
it is necessary to delay until July 1, 2018, the effective date of the 
revisions to or additions of the following provisions of the final 
regulations in title 34 of the Code of Federal Regulations (CFR):
     Sec.  668.14(b)(30), (31), and (32) Program participation 
agreement.
     Sec.  668.41(h) and (i) Reporting and disclosure of 
information.
     Sec.  668.71(c) Scope and special definitions.
     Sec.  668.90(a)(3) Initial and final decisions.
     Sec.  668.93(h), (i) and (j) Limitation.
     Sec.  668.171 General.
     Sec.  668.175(c), (d), (f), and (h) Alternative standards 
and requirements.
     Part 668 subpart L, Appendix C.
     Sec.  674.33(g)(3) and (g)(8) Repayment.
     Sec.  682.202(b)(1) Permissible charges by lenders to 
borrowers.
     Sec.  682.211(i)(7) Forbearance.
     Sec.  682.402(d)(3), (d)(6)(ii)(B)(1) and (2), 
(d)(6)(ii)(F) introductory text, (d)(6)(ii)(F)(5), (d)(6)(ii)(G), 
(d)(6)(ii)(H) through (K), (d)(7)(ii) and (iii), (d)(8), and 
(e)(6)(iii) Death, disability, closed school, false certification, 
unpaid refunds, and bankruptcy payments.
     Sec.  682.405(b)(4)(ii) Loan rehabilitation agreement.
     Sec.  682.410(b)(4) and (b)(6)(viii) Fiscal, 
administrative, and enforcement requirements.
     Sec.  685.200(f)(3)(v) and (f)(4)(iii) Borrower 
eligibility.
     Sec.  685.205(b)(6) Forbearance.
     Sec.  685.206(c) Borrower responsibilities and defenses.
     Sec.  685.212(k) Discharge of a loan obligation.
     Sec.  685.214(c)(2), (f)(4) through (7) Closed school 
discharge.
     Sec.  685.215(a)(1), (c)(1) through (c)(8), and (d) 
Discharge for false certification of student eligibility or 
unauthorized payment.
     Sec.  685.222 Borrower defenses.
     Part 685 subpart B, Appendix A Examples of borrower 
relief.
     Sec.  685.300(b)(11), (b)(12), and (d) through (i) 
Agreements between an eligible school and the Secretary for 
participation in the Direct Loan Program.
     Sec.  685.308(a) Remedial actions.
    In addition, in connection with this delay, the Department 
interprets all references to ``July 1, 2017'' in the text of the above-
referenced regulations to mean the effective date of those regulations. 
The regulatory text included references to the specific July 1, 2017, 
date in part to provide clarity to readers in the future as to when the 
regulations had taken effect. Because the regulations have not taken 
effect on July 1, 2017, we will read those regulations as referring to 
the new effective date established by this delay, i.e., July 1, 2018.
    We do not intend to delay the effective dates of the regulatory 
provisions published in 81 FR 75926 which: (1) Expand the types of 
documentation that may be used for the granting of a discharge based on 
the death of the borrower; (2) amend the regulations governing the 
consolidation of Nursing Student Loans and Nurse Faculty Loans so that 
they align with the statutory requirements of section 428C(a)(4)(E) of 
the HEA; (3) amend the

[[Page 49117]]

regulations governing Direct Consolidation Loans to allow a borrower to 
obtain a Direct Consolidation Loan regardless of whether the borrower 
is also seeking to consolidate a Direct Program or FFEL loan, if the 
borrower has a loan type identified in 34 CFR 685.220(b); (4) address 
severability; and (5) make technical corrections. As established in 81 
FR 75926, 34 CFR 682.211(i)(7) and 682.410(b)(6)(viii) remain 
designated for early implementation, at the discretion of each lender 
or guaranty agency.
    Waiver of Notice-and-Comment Rulemaking, Negotiated Rulemaking, and 
Delayed Effective Date under the APA: Under the APA (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations and publishes rules not less than 30 
days before their effective dates. In addition, under section 492 of 
the HEA (20 U.S.C. 1098a), all regulations proposed by the Department 
for programs authorized under title IV of the HEA are subject to 
negotiated rulemaking requirements. However, the APA provides that an 
agency is not required to conduct notice-and-comment rulemaking or 
delay effective dates when the agency, for good cause, finds that the 
requirement is impracticable, unnecessary, or contrary to the public 
interest (5 U.S.C. 553(b)(3)(B) and (d)(3)). In addition, section 
492(b)(2) of the HEA provides that negotiated rulemaking may be waived 
for good cause when doing so would be ``impracticable, unnecessary, or 
contrary to the public interest.'' Section 492(b)(2) of the HEA also 
requires the Secretary to publish the basis for waiving negotiations in 
the Federal Register at the same time as the proposed regulations in 
question are first published.
    The Department determined under the APA and the HEA that notice-
and-comment and negotiated rulemaking are unnecessary and impracticable 
and therefore is waiving both requirements in this interim final rule. 
As noted previously, the 705 Notice delayed the effective date of the 
final regulations to maintain the status quo pending the outcome of the 
litigation, which could not be resolved before July 1, 2017. Given that 
delay, the next possible date for the regulations to become effective 
would be July 1, 2018, in accordance with the HEA's master calendar 
requirement. Thus, even if the litigation were resolved before July 1, 
2018, under the HEA, July 1, 2018, would be the earliest the 
regulations could take effect. Given the Department's limited 
discretion to set an effective date under the master calendar 
requirement, the Department determined that both notice-and-comment and 
negotiated rulemaking are unnecessary. The Department also determined 
that it was impracticable to conduct notice-and-comment and negotiated 
rulemaking before the original July 1, 2017, effective date. The 
litigation was initiated on May 24, 2017; the Department would not have 
been able to conduct negotiated rulemaking or notice-and-comment 
rulemaking to obtain comment on a possible new effective date in the 
short amount of time between May 24, and July 1, 2017. And, once the 
July 1, 2017, date passed, under the master calendar requirement, the 
Department did not have any discretion to set an effective date earlier 
than July 1, 2018. For the same reasons, we are also waiving the 30-day 
delay of the effective date of this interim final rule under the APA. 
However, the Department is providing a 30-day comment period and 
invites interested persons to comment on the delay of the effective 
date of the final regulations from July 1, 2017, to July 1, 2018. In 
addition, the Department plans to issue a notice of proposed rulemaking 
to seek public comment on further delaying the effective date of the 
final regulations until July 1, 2019, to allow for completion of the 
negotiated rulemaking process before regulatory changes become 
effective in this area (see 82 FR 27640). The Department will seek 
public comments on whether such a further delay is desirable to avoid 
the costs to regulated parties of implementing regulations that may be 
subject to change in the near future.

Executive Orders 12866, 13563 and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    The Department estimates the quantified annualized economic and net 
budget impacts of the delay of the effective date to be -$18.6 million 
in reduced costs to institutions and the Federal government. These 
reduced costs result from the delay of the borrower defense rules on 
the 2017 and 2018 loan cohorts, as well as from the delayed paperwork 
burden on institutions, and the delayed execution of the closed school 
automatic discharge. This final regulatory action is not a significant 
regulatory action subject to review by OMB under section 3(f) of 
Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these

[[Page 49118]]

techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing this interim final rule only on a reasoned 
determination that its benefits justify its costs. Based on the 
analysis that follows, the Department believes that this interim final 
rule is consistent with the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, or Tribal governments in the exercise of 
their governmental functions.
    In accordance with both Executive Orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action.
    The quantified economic effects and net budget impact associated 
with the delayed effective date are not expected to be economically 
significant.
Effects of One-Year Delay
    As indicated in the Regulatory Impact Analysis (RIA) published with 
the final regulations on November 1, 2016, the final regulations were 
economically significant with a total estimated net budget impact of 
$16.6 billion over the 2017-2026 loan cohorts in the primary estimate 
scenario, including a cost of $381 million for cohorts 2014-2016 
attributable to the provisions for a three-year automatic closed school 
discharge. As the net budget impact is based on the net present value 
of the cash flows of the relevant cohorts over a forty-year timeframe, 
simply delaying the final regulations for a year will have a much more 
limited effect, as discussed below. This analysis is limited to the 
effect of delaying the effective date of the final regulations, and 
does not account for any potential future substantive changes in the 
final regulations.
    Even with the delayed effective date, borrowers will still be able 
to submit claims. The provisions of the final regulations pertaining to 
the process for review and determination of claims were not limited to 
specific cohorts designated by the effective date so the delay will not 
result in specific cohorts of borrowers being excluded from the process 
reflected in the final regulations, when implemented. Once in effect, 
the protection generated by the financial protection provisions will be 
available to be applied to claims from loans originated earlier, 
including the period from July 1, 2017 to June 30, 2018. Loans made 
before July 1, 2017, were always subject to the State-based standard 
and their ability to bring claims under that standard is unchanged by 
the delay. For claims filed after the effective date of the 
regulations, the Federal standard established in the final regulations 
would apply. As discussed previously, the Department interprets all 
references to ``July 1, 2017'' in the text of the regulations to mean 
the effective date of the regulations. As a result, the delayed 
effective date means that loans made between July 1, 2017 and June 30, 
2018, will be subject to the current State-based standard. As we noted 
in the final regulations, the Federal standard was designed to address 
much of the conduct already covered by the State-based standard, so the 
vast majority of claims associated with loans made between July 1, 
2017, and the delayed effective date could be made under the current, 
State law-based standard as well.
    In addition to borrowers, institutions are also affected by the 
delayed effective date. As indicated in the RIA for the final 
regulations, institutions bear the major costs of compliance, paperwork 
burden, and providing financial protection. The financial protection 
provisions of the final regulations depend on the effective date, so 
institutions will not incur these costs until the final regulations are 
in effect. In terms of cost savings for institutions, the estimated 
annual paperwork burden was approximately $9.4 million in the initial 
year of the final regulations. In the revised scenario developed to 
estimate the effect of the one-year delay in the effective date, 
transfers from institutions to students, via the Federal government, 
would be reduced by approximately $1.3 million for the 2017 and 2018 
loan cohorts. The costs of providing financial protection were not 
quantified in the final regulations, and the Department has no 
additional data to estimate costs institutions may avoid from the 
delayed effective date of the financial protection provisions.
    There is some uncertainty as to the regulatory baseline against 
which this interim final rule's impacts should be assessed. As noted 
previously, the 705 Notice delayed the effectiveness of certain 
provisions of the 2016 final regulations until a legal challenge is 
resolved. If the legal resolution were to be reached on or after July 
1, 2018, then the 705 Notice would provide for the delay of 
effectiveness between now and then, and the interim final rule would 
not have any impact. By contrast, if the legal resolution were to be 
reached earlier, this interim final rule could have substantial impacts 
associated with the avoidance of confusion and legal ambiguity 
regarding the interaction among the 705 Notice, the master calendar, 
and the 2016 final regulations. Although an analysis of a simple one-
year delay does not exactly capture this collection of impacts (due to, 
among other reasons, the fact that July 1, 2018, is already less than a 
year away and thus this interim final rule cannot have a full year's 
impact), it can provide a general sense of the magnitude of upper bound 
effects.
Net Budget Impact
    In order to estimate the net budget impact of the one-year delay in 
the effective date, the Department developed a scenario that revised 
the primary estimate assumptions from the final regulations from the 
affected 2017 and 2018 loan cohorts. The assumptions for the primary 
scenario from the 2016 final regulation were the basis for the 
President's Budget 2018 (PB2018) baseline that assumed the regulation 
would go into effect on July 1, 2017. The scenario developed for this 
interim final rule is designed to capture the incremental change from 
the PB2018 baseline associated with the one-year delay in the effective 
date. Table 1 presents assumptions for the primary estimate from the 
final regulations and the revised estimate for the one-year delay in 
the effective date. In this scenario, the conduct percent is 90 percent 
of the primary scenario from the final regulation and the borrower 
percent is the same. The financial protection provided was always 
expected to increase over time so the delayed effective date in the 
near term is not expected to significantly affect the amount of 
recoveries over the life of any particular loan cohort, limiting any 
net budget impact from the delay. To estimate the potential reduction 
in recoveries related to the delayed effective date, we reduced 
recoveries for the affected portion of the 2017 and 2018 cohorts by 
five percent for the private not-for-profit and proprietary sectors. As 
in the final regulations, recoveries from public institutions were held 
constant at 75 percent across scenarios.

[[Page 49119]]



                                 Table 1--Revised Assumptions for One-Year Delay
----------------------------------------------------------------------------------------------------------------
                                                               2017                            2018
                                                 ---------------------------------------------------------------
                     Cohort                       Public/private                  Public/private
                                                  not for profit    Proprietary   not for profit    Proprietary
----------------------------------------------------------------------------------------------------------------
Conduct Percent:
    Final Primary...............................             3.0              20             2.4              16
    Delay Revised...............................             2.7              18            2.16            14.4
Borrower Percent:
    Final Primary...............................              35              45            36.8            47.3
    Delay Revised...............................              35              45            36.8            47.3
                                                 ---------------------------------------------------------------
                                                      Public         Priv/Prop        Public         Priv/Prop
                                                 ---------------------------------------------------------------
Recovery Percent:
    Final Primary...............................              75            23.8              75            23.8
    Delay Revised...............................              75           22.61              75           22.61
----------------------------------------------------------------------------------------------------------------

    The net budget impact associated with these effects of the one-year 
delay in the effective date on the borrower defense provisions only is 
approximately -$37.7 million from the 2017 and 2018 loan cohorts.
    As the amount and composition of borrower defense claims and 
estimated recoveries over the lifetime of the relevant loan cohorts are 
not expected to change greatly due to the delayed effective date, the 
Department does not estimate an economically significant net budget 
impact from the delay itself, with a potential net budget impact 
related to borrower defense claims of -$37.7 million in reduced costs.
    The closed school automatic discharge provisions were the other 
significant source of estimated net budget impact in the final 
regulations. Under credit reform scoring, the modification to older 
cohorts for the automatic discharge provision estimated to cost $364 
million was expected to occur in FY 2017 in the President's Budget for 
FY 2018 (PB2018). As a result of the delay in the effective date, the 
Department will not execute the modification in FY 2017.
    The Department does expect to incur the costs associated with the 
three-year automatic discharge after the delayed effective date, but 
moving the execution of the modification beyond FY 2017 will require a 
new cost analysis with economic assumptions from the fiscal year of the 
execution. This will result in a change of cost, but at this point it 
is not possible to know the discount rates in future fiscal years, so 
the cost of the modification will be determined in the year that it is 
executed. While the actual cost of the future modification cannot be 
determined at this time, the Department did approximate the effect of 
the delay by shifting the timing of the relevant discharges back by a 
year and recalculating a modification using the discount rates and 
economic assumptions used for the calculation of the PB2018 
modification. When calculated in this manner, the delay in the 
modification is expected to result in estimated savings of less than 
$10 million.
    As the delay does not change the substance of the automatic 
discharge, we would expect the amount and composition of loans affected 
by the automatic discharge not to change significantly. The closed 
school three-year automatic discharge provisions were applicable to 
loans made on or after November 1, 2013, and were not linked to the 
effective date of the final regulations. Therefore, delaying the 
effective date of those provisions will not change the set of loans 
eligible for this automatic discharge. Additionally, borrowers would 
have the ability to apply for a closed school discharge before July 1, 
2018, if they did not want to wait for the automatic discharge to be 
implemented. For future cohorts, the delay is not significant as the 
three-year period will fall beyond the delayed effective date. Any 
significant change to the estimated net budget impact associated with 
the closed school automatic discharge depends on any substantive 
changes made to the provisions as a result of the upcoming rulemaking 
and changes to economic assumptions when the modification is executed.
    Consistent with Executive Order 13771 (82 FR 9339, February 3, 
2017), we have estimated that this interim final rule will result in 
cost savings. Therefore, this interim final rule is considered an 
Executive Order 13771 deregulatory action.
Accounting Statement
    In evaluating whether a regulation is economically significant, a 
key consideration is whether the annual effect in any given year is 
over $100 million. To evaluate this, the Department looked at the 
difference in the undiscounted cashflows related to the death, 
disability, and bankruptcy (DDB) claims in which borrower defense 
claims are included for the PB2018 baseline and the one-year delay 
scenario described in the Net Budget Impacts section of this interim 
final rule. The difference from subtracting the one-year delay scenario 
from the baseline for the 2017 and 2018 cohorts for FY2017 to FY 2026 
is summarized in Table 2.

Table 2--Difference in Undiscounted Net Cashflows for the 2017 and 2018 Loan Cohorts From One-Year Delay in 2016
                                   Borrower Defense Rule for FY2017 to FY2026
----------------------------------------------------------------------------------------------------------------
                                       2017            2018            2019            2020            2021
----------------------------------------------------------------------------------------------------------------
Change in DDB Cashflow..........         406,737         846,076         514,402       4,457,479      11,564,985
----------------------------------------------------------------------------------------------------------------
                                            2022            2023            2024            2025            2026
----------------------------------------------------------------------------------------------------------------
Change in DDB Cashflow..........       9,114,464         635,180     (2,086,812)       (981,585)         166,597
----------------------------------------------------------------------------------------------------------------


[[Page 49120]]

    Table 3 shows the effects when those differences in the DDB 
cashflows are discounted at 7 and 3 percent and annualized.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Category                                             Benefits
------------------------------------------------------------------------
Institutions may not incur compliance
 costs or costs of obtaining financial
 protection until the rule is in effect.          Not Quantified
------------------------------------------------------------------------
Category                                               Costs
------------------------------------------------------------------------
                                                      7%              3%
------------------------------------------------------------------------
Continued use of state law based
 standard...............................          Not Quantified
Delay in providing consumer information
 about institution's performance and
 practices.
Potential decreased awareness and usage
 of closed school and false
 certification discharges.
------------------------------------------------------------------------
Savings associated with delay in                    -9.5           -9.51
 compliance with paperwork requirements.
------------------------------------------------------------------------


 
                                                     Transfers
                Category                 -------------------------------
                                                7%              3%
------------------------------------------------------------------------
Reduction in transfers from the Federal             -3.8            -3.8
 Government to affected borrowers in the
 2017 and 2018 cohorts that would have
 been partially borne by affected
 institutions via reimbursements........
------------------------------------------------------------------------
Reduced reimbursements from affected                -1.3            -1.2
 institutions to affected students, via
 the Federal government as loan cohorts
 2017 and 2018 are subject to the
 existing borrower defense regulation...
------------------------------------------------------------------------
Delay in closed school automatic                    -6.6            -6.6
 discharge..............................
------------------------------------------------------------------------

Paperwork Reduction Act of 1995

    As indicated in the Paperwork Reduction Act section published in 
the final regulations, the assessed estimated burden was 253,136 hours, 
affecting both institutions and individuals, with an estimated annual 
cost of $9,458,484. The table below identifies the regulatory sections, 
OMB Control Numbers, estimated burden hours, and estimated costs of the 
final regulations.

----------------------------------------------------------------------------------------------------------------
                                                                                                 Estimated cost
                                                                                                  $36.55/hour
         Regulatory section           OMB control No.                Burden hours                 institution
                                                                                                  $16.30/hour
                                                                                                   individual
----------------------------------------------------------------------------------------------------------------
668.14.............................          1845-0022  1,953................................             71,382
668.41.............................          1845-0004  5,346................................            195,396
668.171............................          1845-0022  3,028................................            110,673
668.175............................          1845-0022  60,560...............................          2,213,468
682.211............................          1845-0020  5,784................................            211,405
682.402............................          1845-0020  1,838................................             67,179
685.222............................          1845-0142  249 (Individuals)....................              4,059
685.222............................          1845-0142  800 (Institutions)...................             29,240
685.300............................          1845-0143  179,362..............................          6,555,681
                                    ----------------------------------------------------------------------------
    Total..........................  .................  258,920..............................          9,458,484
----------------------------------------------------------------------------------------------------------------
Cost savings due to delayed          .................  253,136..............................          9,247,079
 effective date excluding 682.211,
 for which early implementation is
 allowed.
Burden remaining...................  .................  5,784................................            211,405
----------------------------------------------------------------------------------------------------------------

    This interim final rule delays the effective date of all of the 
cited regulations and would result in a cost savings of the total 
amount of $9,247,079. This cost savings equals the cost savings from 
delaying the effective date of all of the identified provisions of the 
final regulations other than Sec.  682.211(i)(7), regarding mandatory 
forbearance based on a borrower defense claim, with an estimated 5,784 
hours and $211,405 cost, as such section has been designated for early 
implementation. Lenders may have elected to invoke early 
implementation, and, therefore, those specific costs and hours remain 
applicable and have been subtracted from the overall estimated cost 
savings. Based on the delayed effective date of July 1, 2018, the 
revised estimated annual cost savings to institutions and individuals 
is $9,247,079 ($9,458,484 - $211,405) with an estimated burden hours 
savings of 253,136 (258,920 - 5,784).

Regulatory Flexibility Act

    The Secretary certifies that this interim final regulation will not 
have a significant economic impact on a substantial number of small 
entities. The small entities that are affected by these regulations are 
small postsecondary institutions. As stated above, this delayed 
effective date is not expected to have a significant economic impact 
generally. This same analysis applies with regard to affected small 
entities.

Intergovernmental Review

    These programs are not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

[[Page 49121]]

Assessment of Educational Impact

    Based on our own review, we have determined that these final 
regulations do not require transmission of information that any other 
agency or authority of the United States gathers or makes available.
    Accessible Format: Individuals with disabilities may obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the contact person listed 
under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to this Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.thefederalregister.org/fdsys. 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 PDF. To use PDF, you must have Adobe Acrobat 
Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: www.Federal 
Register.gov. Specifically, through the advanced search feature at this 
site, you can limit your search to documents published by the 
Department.

List of Subjects

34 CFR Part 668

    Administrative practice and procedure, Colleges and universities, 
Consumer protection, Grant programs--education, Loan programs--
education, Reporting and recordkeeping requirements, Selective Service 
System, Student aid, Vocational education.

34 CFR Part 674

    Loan programs--education, Reporting and recordkeeping requirements, 
Student aid.

34 CFR Parts 682 and 685

    Administrative practice and procedure, Colleges and universities, 
Loan programs--education, Reporting and recordkeeping requirements, 
Student aid, Vocational education.

    Dated: October 16, 2017.
Betsy DeVos,
Secretary of Education.
[FR Doc. 2017-22851 Filed 10-20-17; 4:15 pm]
BILLING CODE 4000-01-P



                                             49114            Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations

                                             the potential impact of regulations on                    For the reasons stated in the                       Gulfport or by such other person(s) as
                                             small entities during rulemaking. The                   preamble, the Corps is amending 33                    he or she may designate.
                                             term ‘‘small entities’’ comprises small                 CFR part 334 as follows:                                Dated: October 18, 2017.
                                             businesses, not-for-profit organizations                                                                      Thomas P. Smith,
                                             that are independently owned and                        PART 334—DANGER ZONE AND
                                                                                                     RESTRICTED AREA REGULATIONS                           Chief, Operations and Regulatory Division,
                                             operated and are not dominant in their                                                                        Directorate of Civil Works.
                                             fields, and governmental jurisdictions
                                                                                                     ■ 1. The authority citation for 33 CFR                [FR Doc. 2017–23004 Filed 10–23–17; 8:45 am]
                                             with populations of less than 50,000.
                                                                                                     part 334 continues to read as follows:                BILLING CODE 3720–58–P
                                                The Corps certifies under 5 U.S.C.
                                             605(b) that this rule would not have a                    Authority: 40 Stat. 266 (33 U.S.C. 1) and
                                                                                                     40 Stat. 892 (33 U.S.C. 3).
                                             significant economic impact on a
                                             substantial number of small entities.                   ■   2. Add § 334.784 to read as follows:              DEPARTMENT OF EDUCATION
                                             While some owners or operators of
                                                                                                     § 334.784 East Pearl River, within the                34 CFR Parts 668, 674, 682, and 685
                                             vessels that intend to transit the danger               acoustic buffer area of the John C. Stennis
                                             zone may be small entities, for the                     Space Center, and adjacent to lands, in               [Docket ID ED–2017–OPE–0108]
                                             reasons stated in paragraph (a) above                   Hancock County, Mississippi; danger zone.             RIN 1840–AD25
                                             this rule would not have a significant                    (a) The area. A danger zone is
                                             economic impact on any vessel owner                     established in and to the extent of                   Student Assistance General
                                             or operator. In addition, the danger zone               waters of the United States, as defined               Provisions, Federal Perkins Loan
                                             is necessary to protect public safety                   in 33 CFR part 329, in the following                  Program, Federal Family Education
                                             during training exercises. Small entities               reaches of the East Pearl River south of              Loan Program, William D. Ford Federal
                                             can utilize navigable waters outside of                 a point located at latitude 30.4030° N.,              Direct Loan Program, and Teacher
                                             the danger zone when the danger zone                    longitude ¥89.6815° W., to a point                    Education Assistance for College and
                                             is activated. Small entities may also                   below the confluence of Mikes River,                  Higher Education Grant Program
                                             transit the danger zone when it is                      located at latitude 30.3561° N.,
                                             activated, as long as they obtain                       longitude ¥89.6514° W. The datum for                  AGENCY:   Office of Postsecondary
                                             permission from the Commanding                          these coordinates is NAD 1983.                        Education, Department of Education.
                                             Officer, Naval Construction Battalion                     (b) The regulation. (1) No person,                  ACTION: Interim final rule; delay of
                                             Center, Gulfport or his/her designees.                  vessel, or other watercraft, other than a             effective date; request for comments.
                                             After considering the economic impacts                  vessel owned and operated by the
                                             of this danger zone regulation on small                 United States, shall enter or remain in               SUMMARY:    Consistent with section
                                             entities, I certify that this action will not           the danger zone, or within a portion or               553(b)(3)(B) and (d)(3) of the
                                             have a significant impact on a                          portions thereof, when closed to public               Administrative Procedure Act (APA),
                                             substantial number of small entities.                   access, as provided in paragraph (b)(2)               which allows Federal agencies to
                                                                                                     of this section, except by permission of              promulgate rules without advance
                                             c. Review Under the National                                                                                  notice and opportunity for comment for
                                             Environmental Policy Act                                the Commanding Officer, Naval
                                                                                                     Construction Battalion Center, Gulfport               good cause, the Secretary issues this
                                                An environmental assessment (EA)                     or such other person(s) as he or she may              interim final rule with request for
                                             has been prepared. We have concluded                    designate.                                            comment. This interim final rule delays
                                             that the establishment of the restricted                  (2) The danger zone, or a portion or                until July 1, 2018, the effective date of
                                             area will not have a significant impact                 portions thereof, will be closed, for                 selected provisions of the final
                                             to the quality of the human environment                 riverine, weapons, or other dangerous                 regulations entitled Student Assistance
                                             and, therefore, preparation of an                       naval training, by placement of                       General Provisions, Federal Perkins
                                             environmental impact statement is not                   Government picket boats at the northern               Loan Program, Federal Family
                                             required. The final EA and Finding of                   and southern boundaries in the East                   Education Loan (FFEL) Program,
                                             No Significant Impact may be reviewed                   Pearl River, or at such other location(s)             William D. Ford Federal Direct Loan
                                             at the District Office listed at the end of             within the danger zone as may be                      Program, and Teacher Education
                                             the FOR FURTHER INFORMATION CONTACT                     determined to be sufficient to protect                Assistance for College and Higher
                                             section, above.                                         the public. Prior to closure, picket boats            Education Grant Program (the final
                                                                                                     will transit the area(s) to be closed, to             regulations), published in the Federal
                                             d. Unfunded Mandates Reform Act                                                                               Register on November 1, 2016. The
                                                                                                     ensure that no persons, vessels, or other
                                               This rule does not impose an                          watercraft are present. Once the danger               provisions this interim final rule delays
                                             enforceable duty among the private                      zone, or location(s) within the danger                are listed in the SUPPLEMENTARY
                                             sector and, therefore, is not a Federal                 zone, has been cleared, picket boats will             INFORMATION section of this document.
                                             private sector mandate and is not                       remain in position, upstream and                      The original effective date of the final
                                             subject to the requirements of Section                  downstream, until it is safe to re-open               regulations was July 1, 2017.
                                             202 or 205 of the Unfunded Mandates                     the area(s) to public access.                         DATES: Effective date: As of October 24,
                                             Reform Act (Public Laws 104–4, 109                        (3) Riverine, weapons, and other                    2017, the effective date for the
                                             Stat. 48, 2 U.S.C. 1501 et seq.). We have               dangerous naval training may occur on                 amendments to or additions of:
                                             also found, under Section 203 of the                    any day of the week, typically, but not               §§ 668.14(b)(30), (31), and (32);
                                             Act, that small governments will not be                 exclusively, in periods of two to eight               668.41(h) and (i); 668.71(c); 668.90(a)(3);
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                                             significantly or uniquely affected by this              hours, between 6 a.m. and 6 p.m.                      668.93(h), (i), (j); 668.171; 668.175 (c)
                                             rule.                                                   Training may occur at night, in                       and (d) and (f) and (h); Appendix C to
                                                                                                     darkness.                                             Subpart L of Part 668; 674.33(g)(3) and
                                             List of Subjects in 33 CFR Part 334
                                                                                                       (c) Enforcement. The restrictions on                (g)(8); 682.202(b)(1); 682.211(i)(7);
                                              Danger zones, Marine safety,                           public access in this section shall be                682.402(d)(3), (d)(6)(ii)(B)(1) and (2),
                                             Navigation (water), Restricted areas,                   enforced by the Commanding Officer,                   (d)(6)(ii)(F) introductory text,
                                             Waterways.                                              Naval Construction Battalion Center,                  (d)(6)(ii)(F)(5), (d)(6)(ii)(G), (d)(6)(ii)(H)


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                                                              Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations                                         49115

                                             through (K), (d)(7)(ii) and (iii), (d)(8),              information that they wish to make                    their students’ loan repayment rates,
                                             and (e)(6)(iii); 682.405(b)(4);                         publicly available.                                   and prohibitions against institutions
                                             682.410(b)(4) and (b)(6)(viii);                         FOR FURTHER INFORMATION CONTACT:                      including arbitration or class action
                                             685.200(f)(3)(v) and (f)(4)(iii);                       Barbara Hoblitzell, U.S. Department of                waivers in their agreements with
                                             685.205(b)(6); 685.206(c); 685.212(k);                  Education, 400 Maryland Ave. SW.,                     students. Complaint and Prayer for
                                             685.214(c)(2), (f)(4) through (7);                      Mail Stop 6W247, Washington, DC                       Declaratory and Injunctive Relief,
                                             685.215(a)(1), (c)(1) through (c)(8), and               20202. Telephone: (202) 453–7583 or by                California Association of Private
                                             (d); 685.222; Appendix A to Subpart B                   email at: Barbara.Hoblitzell@ed.gov.                  Postsecondary Schools v. DeVos, No.
                                             of Part 685; and 685.308(a), published                     If you use a telecommunications                    1:17–cv–00999 (D.D.C. May 24, 2017).
                                             November 1, 2016, at 81 FR 75926, and                   device for the deaf (TDD) or a text                   As of the date of this interim final rule,
                                             delayed until further notice on June 16,                telephone (TTY), call the Federal Relay               the litigation is ongoing.
                                             2017, in 82 FR 27621, is further delayed                Service (FRS), toll free, at 1–800–877–                  In light of the pending litigation, on
                                             until July 1, 2018.                                     8339.                                                 June 16, 2017, the Department
                                               Comment date: We must receive your                                                                          published in the Federal Register a
                                                                                                     SUPPLEMENTARY INFORMATION:                            notification of the partial delay of
                                             comments on or before November 24,                         Invitation to Comment: We invite you
                                             2017.                                                                                                         effective dates under section 705 of the
                                                                                                     to submit comments regarding this                     APA (5 U.S.C. 705) (82 FR 27621) (705
                                             ADDRESSES:    Submit your comments                      interim final rule. We will consider                  Notice), to delay the effectiveness of
                                             through the Federal eRulemaking Portal                  comments on the delayed effective date                certain provisions of the final
                                             or via postal mail, commercial delivery,                only and will not consider comments on                regulations until the legal challenge is
                                             or hand delivery. We will not accept                    the wording or substance of the final                 resolved. The 705 Notice postponed the
                                             comments submitted by fax or by email                   regulations. See ADDRESSES for                        effective date of the regulations to
                                             or those submitted after the comment                    instructions on how to submit                         preserve the regulatory status quo while
                                             period. To ensure that we do not receive                comments.                                             the litigation is pending and the Court
                                             duplicate copies, please submit your                       During and after the comment period,               makes a decision. As explained in the
                                             comments only once. In addition, please                 you may inspect all public comments                   705 Notice, the plaintiff has raised
                                             include the Docket ID at the top of your                about this interim final rule by                      serious questions concerning the
                                             comments.                                               accessing Regulations.gov. You may also               validity of certain provisions of the final
                                                If you are submitting comments                       inspect the comments in person in                     regulations and has identified
                                             electronically, we strongly encourage                   Room 6W245, 400 Maryland Avenue                       substantial injuries that could result if
                                             you to submit any comments or                           SW., Washington, DC, between 8:30                     they go into effect before those
                                             attachments in Microsoft Word format.                   a.m. and 4:00 p.m. Washington, DC                     questions are resolved. Given the legal
                                             If you must submit a comment in                         time, Monday through Friday of each                   uncertainty, maintaining the status quo
                                             Portable Document Format (PDF), we                      week, except Federal holidays. If you                 is critical. For instance, if the final
                                             strongly encourage you to convert the                   want to schedule time to inspect                      regulations took effect, institutions
                                             PDF to print-to-PDF format or to use                    comments, please contact the person                   participating in programs under title IV
                                             some other commonly used searchable                     listed under FOR FURTHER INFORMATION                  of the Higher Education Act of 1965, as
                                                                                                     CONTACT.                                              amended (HEA), would have been
                                             text format. Please do not submit the
                                                                                                        Assistance to Individuals With                     required, as of July 1, 2017, to modify
                                             PDF in a scanned format. Using a print-
                                                                                                     Disabilities in Reviewing the                         their contracts in accordance with the
                                             to-PDF format allows the Department to
                                                                                                     Rulemaking Record: On request, we will                arbitration and class action waiver
                                             electronically search and copy certain
                                                                                                     provide an appropriate accommodation                  regulations. Postponing the final
                                             portions of your submissions.
                                                                                                     or auxiliary aid to an individual with a              regulations avoids the cost that
                                                • Federal eRulemaking Portal: Go to                  disability who needs assistance to
                                             www.regulations.gov to submit your                                                                            institutions would incur in making
                                                                                                     review the comments or other                          these changes while the final
                                             comments electronically. Information                    documents in the public rulemaking                    regulations are subject to judicial
                                             on using Regulations.gov, including                     record for this interim final rule. If you            review. Meanwhile, the Department is
                                             instructions for accessing agency                       want to schedule an appointment for                   continuing to process borrower defense
                                             documents, submitting comments, and                     this type of accommodation or auxiliary               claims under the existing regulations
                                             viewing the docket, is available on the                 aid, please contact the person listed                 that will remain in effect during the
                                             site under ‘‘Help.’’                                    under FOR FURTHER INFORMATION                         postponement.
                                                • Postal Mail, Commercial Delivery,                  CONTACT.                                                 Because the final regulations have
                                             or Hand Delivery: The Department                                                                              been postponed beyond July 1, 2017,
                                             strongly encourages commenters to                       Delay of Effective Date
                                                                                                                                                           pursuant to the 705 Notice, the
                                             submit their comments electronically.                     On May 24, 2017, the California                     postponement of the final regulations
                                             However, if you mail or deliver your                    Association of Private Postsecondary                  must be for at least one year to comply
                                             comments about the interim final rule,                  Schools (CAPPS) filed a Complaint and                 with section 482 of the HEA (20 U.S.C.
                                             address them to Jean-Didier Gaina, U.S.                 Prayer for Declaratory and Injunctive                 1089). That section imposes a
                                             Department of Education, 400 Maryland                   Relief in the United States District Court            requirement (the ‘‘master calendar
                                             Ave. SW., Mail Stop 6W247,                              for the District of Columbia (Court)                  requirement’’) on the Department for the
                                             Washington, DC 20202.                                   challenging the final regulations in their            effective date of regulations affecting
                                                Privacy Note: The Department’s                       entirety, and in particular those                     programs under title IV of the HEA.
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                                             policy is to make all comments received                 provisions of the regulations pertaining              Under the master calendar requirement,
                                             from members of the public available for                to the standard and process for the                   a regulatory change that has been
                                             public viewing on the Federal                           Department to adjudicate borrower                     published in final form on or before
                                             eRulemaking Portal at                                   defense claims, requirements pertaining               November 1 prior to the start of an
                                             www.regulations.gov. Therefore,                         to financial responsibility standards,                award year—which begins on July 1 of
                                             commenters should be careful to                         provisions requiring proprietary                      any given year—may take effect only at
                                             include in their comments only                          institutions to provide warnings about                the beginning of the next award year, or


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                                             49116            Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations

                                             in other words, on July 1 of the next                      With respect to the final regulations,                • § 668.171 General.
                                             year. Any regulatory change that has not                implementing this substantial regulatory                 • § 668.175(c), (d), (f), and (h)
                                             been published in final form by                         change in the middle of an award year                 Alternative standards and requirements.
                                             November 1 prior to the start of an                     would frustrate the notice objectives of                 • Part 668 subpart L, Appendix C.
                                             award year may not become effective                     the HEA and deny schools the assurance                   • § 674.33(g)(3) and (g)(8) Repayment.
                                             until the beginning of the second award                 of the master calendar. For the July 1,                  • § 682.202(b)(1) Permissible charges
                                             year after the November 1 date.                         2017, postponement to be consistent                   by lenders to borrowers.
                                                The master calendar requirement                      with the HEA, therefore, the effective                   • § 682.211(i)(7) Forbearance.
                                             provides that regulatory changes                        date must be July 1, 2018 (or July 1 of                  • § 682.402(d)(3), (d)(6)(ii)(B)(1) and
                                             affecting the title IV programs must                    a later year). Because the 705 Notice                 (2), (d)(6)(ii)(F) introductory text,
                                             become effective at the beginning of an                 does not establish a specific effective               (d)(6)(ii)(F)(5), (d)(6)(ii)(G), (d)(6)(ii)(H)
                                             award year and does not authorize the                   date but is tied to the pending litigation,           through (K), (d)(7)(ii) and (iii), (d)(8),
                                             Department to make a regulatory change                  this interim final rule provides the                  and (e)(6)(iii) Death, disability, closed
                                             affecting the title IV programs effective               public and regulated parties notice that              school, false certification, unpaid
                                             in the middle of an award year.1                        even if the litigation concludes before               refunds, and bankruptcy payments.
                                             Accordingly, regulations promulgated                    July 1, 2018, the final regulations will                 • § 682.405(b)(4)(ii) Loan
                                             under title IV of the HEA have an                       not take effect until that date consistent            rehabilitation agreement.
                                             effective date of July 1. Congress                      with the master calendar requirement.                    • § 682.410(b)(4) and (b)(6)(viii)
                                             enacted the master calendar                                Separately, we note that the delayed               Fiscal, administrative, and enforcement
                                             requirement to ensure that institutions                 effective date is consistent with the                 requirements.
                                             have sufficient notice of the timing of                 Memorandum for the Heads of                              • § 685.200(f)(3)(v) and (f)(4)(iii)
                                             any regulatory change in order to                       Executive Departments and Agencies                    Borrower eligibility.
                                             implement regulatory changes at the                     entitled ‘‘Regulatory Freeze Pending                     • § 685.205(b)(6) Forbearance.
                                             start of each award year. In this way,                  Review,’’ published in the Federal                       • § 685.206(c) Borrower
                                             institutions avoid incurring the costs of               Register on January 24, 2017                          responsibilities and defenses.
                                             compliance on a rolling basis                           (Memorandum), which was intended to                      • § 685.212(k) Discharge of a loan
                                             throughout the year and avoid any                       ensure that the President’s appointees or             obligation.
                                             disruption to the timely delivery of title              designees have the opportunity to                        • § 685.214(c)(2), (f)(4) through (7)
                                             IV funds. See S. Rep. No. 99–296, at 11                 review any new or pending regulations                 Closed school discharge.
                                             (1986); see also Reauthorization of the                 and where appropriate to suggest                         • § 685.215(a)(1), (c)(1) through (c)(8),
                                             Higher Education Act, 1985: Hearings                    changes. Among other things, the                      and (d) Discharge for false certification
                                             Before the S. Subcomm. On Educ., Arts                   Memorandum directed the heads of                      of student eligibility or unauthorized
                                             and Humanities, 99th Cong. 10 (1985)                    executive departments and agencies to                 payment.
                                             (statement of the Conference on Higher                  consider temporarily postponing the                      • § 685.222 Borrower defenses.
                                             Education) (‘‘Although progress will                    effective dates of all regulations that had              • Part 685 subpart B, Appendix A
                                             always require updating, there is an                    been published in the Federal Register                Examples of borrower relief.
                                             equally important need for stability so                 but had not yet taken effect. In addition,               • § 685.300(b)(11), (b)(12), and (d)
                                             that proper planning by all those                       on February 24, 2017, the President                   through (i) Agreements between an
                                             involved—including families, aid                        issued Executive Order 13777, which                   eligible school and the Secretary for
                                             administrators, and agency officials—                   requires each agency head to consider                 participation in the Direct Loan
                                             can be achieved.’’).                                    recommendations to repeal, replace, or                Program.
                                                Congress has been clear that ‘‘the                   modify existing regulations, consistent                  • § 685.308(a) Remedial actions.
                                             effective dates of all regulations on Title             with applicable law. In accordance with                  In addition, in connection with this
                                             IV are driven by the Master Calendar                    these evaluative efforts, we announced                delay, the Department interprets all
                                             requirements in Section 482,’’ H.R. Rep.                on June 16, 2017, our intent to engage                references to ‘‘July 1, 2017’’ in the text
                                             No. 102–447, at 77 (1992), and it has                   in negotiated and notice-and-comment                  of the above-referenced regulations to
                                             reaffirmed the breadth of the master                    rulemaking on the topics addressed by                 mean the effective date of those
                                             calendar requirement by providing                       the final regulations on (82 FR 27640).               regulations. The regulatory text
                                             express waivers of the requirement only                 The Department is reevaluating its                    included references to the specific July
                                             in specific limited circumstances. See,                 regulations in this area and the burdens              1, 2017, date in part to provide clarity
                                             e.g., Higher Education Opportunity Act,                 on regulated parties may change.                      to readers in the future as to when the
                                             Public Law 110–315, sec. 402(b), 122                       To provide adequate notice to these                regulations had taken effect. Because the
                                             Stat. 3078, 3191 (2008); Higher                         parties in accordance with the HEA’s                  regulations have not taken effect on July
                                             Education Act—Technical Corrections,                    master calendar requirement, the                      1, 2017, we will read those regulations
                                             Public Law 111–39, sec. 409, 123 Stat.                  Department has determined that it is                  as referring to the new effective date
                                             1950, 1953 (2009). Accordingly, the                     necessary to delay until July 1, 2018, the            established by this delay, i.e., July 1,
                                             Department has consistently interpreted                 effective date of the revisions to or                 2018.
                                             and applied the master calendar                         additions of the following provisions of                 We do not intend to delay the
                                             requirement to provide that any                         the final regulations in title 34 of the              effective dates of the regulatory
                                             regulatory change relating to student                   Code of Federal Regulations (CFR):                    provisions published in 81 FR 75926
                                             financial aid programs may take effect                     • § 668.14(b)(30), (31), and (32)                  which: (1) Expand the types of
                                             only at the beginning of an award year.                 Program participation agreement.                      documentation that may be used for the
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                                                                                                        • § 668.41(h) and (i) Reporting and                granting of a discharge based on the
                                                1 We note that in the limited circumstance where     disclosure of information.                            death of the borrower; (2) amend the
                                             the Secretary designates a regulation for early            • § 668.71(c) Scope and special                    regulations governing the consolidation
                                             implementation pursuant to 20 U.S.C. 1089(c)(2),                                                              of Nursing Student Loans and Nurse
                                             regulated parties may choose to implement the
                                                                                                     definitions.
                                             regulation before the July 1 effective date. Early         • § 668.90(a)(3) Initial and final                 Faculty Loans so that they align with
                                             implementation, however, does not change the            decisions.                                            the statutory requirements of section
                                             effective date of the regulation.                          • § 668.93(h), (i) and (j) Limitation.             428C(a)(4)(E) of the HEA; (3) amend the


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                                                              Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations                                         49117

                                             regulations governing Direct                            the master calendar requirement, the                     (3) Materially alter the budgetary
                                             Consolidation Loans to allow a borrower                 Department determined that both                       impacts of entitlement grants, user fees,
                                             to obtain a Direct Consolidation Loan                   notice-and-comment and negotiated                     or loan programs or the rights and
                                             regardless of whether the borrower is                   rulemaking are unnecessary. The                       obligations of recipients thereof; or
                                             also seeking to consolidate a Direct                    Department also determined that it was                   (4) Raise novel legal or policy issues
                                             Program or FFEL loan, if the borrower                   impracticable to conduct notice-and-                  arising out of legal mandates, the
                                             has a loan type identified in 34 CFR                    comment and negotiated rulemaking                     President’s priorities, or the principles
                                             685.220(b); (4) address severability; and               before the original July 1, 2017, effective           stated in the Executive order.
                                             (5) make technical corrections. As                      date. The litigation was initiated on May                The Department estimates the
                                             established in 81 FR 75926, 34 CFR                      24, 2017; the Department would not                    quantified annualized economic and net
                                             682.211(i)(7) and 682.410(b)(6)(viii)                   have been able to conduct negotiated                  budget impacts of the delay of the
                                             remain designated for early                             rulemaking or notice-and-comment                      effective date to be ¥$18.6 million in
                                             implementation, at the discretion of                    rulemaking to obtain comment on a                     reduced costs to institutions and the
                                             each lender or guaranty agency.                         possible new effective date in the short              Federal government. These reduced
                                                Waiver of Notice-and-Comment                         amount of time between May 24, and                    costs result from the delay of the
                                             Rulemaking, Negotiated Rulemaking,                      July 1, 2017. And, once the July 1, 2017,             borrower defense rules on the 2017 and
                                             and Delayed Effective Date under the                    date passed, under the master calendar                2018 loan cohorts, as well as from the
                                             APA: Under the APA (5 U.S.C. 553), the                  requirement, the Department did not                   delayed paperwork burden on
                                             Department generally offers interested                  have any discretion to set an effective               institutions, and the delayed execution
                                             parties the opportunity to comment on                   date earlier than July 1, 2018. For the               of the closed school automatic
                                             proposed regulations and publishes                      same reasons, we are also waiving the                 discharge. This final regulatory action is
                                             rules not less than 30 days before their                30-day delay of the effective date of this            not a significant regulatory action
                                             effective dates. In addition, under                     interim final rule under the APA.                     subject to review by OMB under section
                                             section 492 of the HEA (20 U.S.C.                       However, the Department is providing a                3(f) of Executive Order 12866.
                                             1098a), all regulations proposed by the                 30-day comment period and invites                        We have also reviewed these
                                             Department for programs authorized                      interested persons to comment on the                  regulations under Executive Order
                                             under title IV of the HEA are subject to                delay of the effective date of the final              13563, which supplements and
                                             negotiated rulemaking requirements.                     regulations from July 1, 2017, to July 1,             explicitly reaffirms the principles,
                                             However, the APA provides that an                       2018. In addition, the Department plans               structures, and definitions governing
                                             agency is not required to conduct                       to issue a notice of proposed rulemaking              regulatory review established in
                                             notice-and-comment rulemaking or                        to seek public comment on further                     Executive Order 12866. To the extent
                                             delay effective dates when the agency,                  delaying the effective date of the final              permitted by law, Executive Order
                                             for good cause, finds that the                          regulations until July 1, 2019, to allow              13563 requires that an agency—
                                             requirement is impracticable,                           for completion of the negotiated                         (1) Propose or adopt regulations only
                                             unnecessary, or contrary to the public                  rulemaking process before regulatory                  on a reasoned determination that their
                                             interest (5 U.S.C. 553(b)(3)(B) and                     changes become effective in this area                 benefits justify their costs (recognizing
                                             (d)(3)). In addition, section 492(b)(2) of              (see 82 FR 27640). The Department will                that some benefits and costs are difficult
                                             the HEA provides that negotiated                        seek public comments on whether such                  to quantify);
                                             rulemaking may be waived for good                                                                                (2) Tailor its regulations to impose the
                                                                                                     a further delay is desirable to avoid the
                                             cause when doing so would be                                                                                  least burden on society, consistent with
                                                                                                     costs to regulated parties of
                                             ‘‘impracticable, unnecessary, or contrary                                                                     obtaining regulatory objectives and
                                                                                                     implementing regulations that may be
                                             to the public interest.’’ Section 492(b)(2)                                                                   taking into account—among other things
                                                                                                     subject to change in the near future.
                                             of the HEA also requires the Secretary                                                                        and to the extent practicable—the costs
                                             to publish the basis for waiving                        Executive Orders 12866, 13563 and                     of cumulative regulations;
                                             negotiations in the Federal Register at                 13771                                                    (3) In choosing among alternative
                                             the same time as the proposed                                                                                 regulatory approaches, select those
                                                                                                     Regulatory Impact Analysis                            approaches that maximize net benefits
                                             regulations in question are first
                                             published.                                                 Under Executive Order 12866, it must               (including potential economic,
                                                The Department determined under                      be determined whether this regulatory                 environmental, public health and safety,
                                             the APA and the HEA that notice-and-                    action is ‘‘significant’’ and, therefore,             and other advantages; distributive
                                             comment and negotiated rulemaking are                   subject to the requirements of the                    impacts; and equity);
                                             unnecessary and impracticable and                       Executive order and subject to review by                 (4) To the extent feasible, specify
                                             therefore is waiving both requirements                  the Office of Management and Budget                   performance objectives, rather than the
                                             in this interim final rule. As noted                    (OMB). Section 3(f) of Executive Order                behavior or manner of compliance a
                                             previously, the 705 Notice delayed the                  12866 defines a ‘‘significant regulatory              regulated entity must adopt; and
                                             effective date of the final regulations to              action’’ as an action likely to result in                (5) Identify and assess available
                                             maintain the status quo pending the                     a rule that may—                                      alternatives to direct regulation,
                                             outcome of the litigation, which could                     (1) Have an annual effect on the                   including economic incentives—such as
                                             not be resolved before July 1, 2017.                    economy of $100 million or more, or                   user fees or marketable permits—to
                                             Given that delay, the next possible date                adversely affect a sector of the economy,             encourage the desired behavior, or
                                             for the regulations to become effective                 productivity, competition, jobs, the                  provide information that enables the
                                             would be July 1, 2018, in accordance                    environment, public health or safety, or              public to make choices.
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                                             with the HEA’s master calendar                          State, local, or Tribal governments or                   Executive Order 13563 also requires
                                             requirement. Thus, even if the litigation               communities in a material way (also                   an agency ‘‘to use the best available
                                             were resolved before July 1, 2018, under                referred to as an ‘‘economically                      techniques to quantify anticipated
                                             the HEA, July 1, 2018, would be the                     significant’’ rule);                                  present and future benefits and costs as
                                             earliest the regulations could take effect.                (2) Create serious inconsistency or                accurately as possible.’’ The Office of
                                             Given the Department’s limited                          otherwise interfere with an action taken              Information and Regulatory Affairs of
                                             discretion to set an effective date under               or planned by another agency;                         OMB has emphasized that these


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                                             49118            Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations

                                             techniques may include ‘‘identifying                    period from July 1, 2017 to June 30,                  delay of effectiveness between now and
                                             changing future compliance costs that                   2018. Loans made before July 1, 2017,                 then, and the interim final rule would
                                             might result from technological                         were always subject to the State-based                not have any impact. By contrast, if the
                                             innovation or anticipated behavioral                    standard and their ability to bring                   legal resolution were to be reached
                                             changes.’’                                              claims under that standard is                         earlier, this interim final rule could
                                                We are issuing this interim final rule               unchanged by the delay. For claims                    have substantial impacts associated
                                             only on a reasoned determination that                   filed after the effective date of the                 with the avoidance of confusion and
                                             its benefits justify its costs. Based on the            regulations, the Federal standard                     legal ambiguity regarding the interaction
                                             analysis that follows, the Department                   established in the final regulations                  among the 705 Notice, the master
                                             believes that this interim final rule is                would apply. As discussed previously,                 calendar, and the 2016 final regulations.
                                             consistent with the principles in                       the Department interprets all references              Although an analysis of a simple one-
                                             Executive Order 13563.                                  to ‘‘July 1, 2017’’ in the text of the                year delay does not exactly capture this
                                                We also have determined that this                    regulations to mean the effective date of             collection of impacts (due to, among
                                             regulatory action does not unduly                       the regulations. As a result, the delayed             other reasons, the fact that July 1, 2018,
                                             interfere with State, local, or Tribal                  effective date means that loans made
                                             governments in the exercise of their                                                                          is already less than a year away and
                                                                                                     between July 1, 2017 and June 30, 2018,               thus this interim final rule cannot have
                                             governmental functions.                                 will be subject to the current State-based
                                                In accordance with both Executive                                                                          a full year’s impact), it can provide a
                                                                                                     standard. As we noted in the final
                                             Orders, the Department has assessed the                                                                       general sense of the magnitude of upper
                                                                                                     regulations, the Federal standard was
                                             potential costs and benefits, both                                                                            bound effects.
                                                                                                     designed to address much of the
                                             quantitative and qualitative, of this                   conduct already covered by the State-                 Net Budget Impact
                                             regulatory action.                                      based standard, so the vast majority of
                                                The quantified economic effects and                  claims associated with loans made                        In order to estimate the net budget
                                             net budget impact associated with the                   between July 1, 2017, and the delayed                 impact of the one-year delay in the
                                             delayed effective date are not expected                 effective date could be made under the                effective date, the Department
                                             to be economically significant.                         current, State law-based standard as                  developed a scenario that revised the
                                             Effects of One-Year Delay                               well.                                                 primary estimate assumptions from the
                                                                                                        In addition to borrowers, institutions             final regulations from the affected 2017
                                                As indicated in the Regulatory Impact                are also affected by the delayed effective            and 2018 loan cohorts. The assumptions
                                             Analysis (RIA) published with the final                 date. As indicated in the RIA for the                 for the primary scenario from the 2016
                                             regulations on November 1, 2016, the                    final regulations, institutions bear the              final regulation were the basis for the
                                             final regulations were economically                     major costs of compliance, paperwork                  President’s Budget 2018 (PB2018)
                                             significant with a total estimated net                  burden, and providing financial                       baseline that assumed the regulation
                                             budget impact of $16.6 billion over the                 protection. The financial protection                  would go into effect on July 1, 2017. The
                                             2017–2026 loan cohorts in the primary                   provisions of the final regulations                   scenario developed for this interim final
                                             estimate scenario, including a cost of                  depend on the effective date, so
                                             $381 million for cohorts 2014–2016                                                                            rule is designed to capture the
                                                                                                     institutions will not incur these costs               incremental change from the PB2018
                                             attributable to the provisions for a three-             until the final regulations are in effect.
                                             year automatic closed school discharge.                                                                       baseline associated with the one-year
                                                                                                     In terms of cost savings for institutions,            delay in the effective date. Table 1
                                             As the net budget impact is based on the                the estimated annual paperwork burden
                                             net present value of the cash flows of                                                                        presents assumptions for the primary
                                                                                                     was approximately $9.4 million in the
                                             the relevant cohorts over a forty-year                                                                        estimate from the final regulations and
                                                                                                     initial year of the final regulations. In
                                             timeframe, simply delaying the final                                                                          the revised estimate for the one-year
                                                                                                     the revised scenario developed to
                                             regulations for a year will have a much                                                                       delay in the effective date. In this
                                                                                                     estimate the effect of the one-year delay
                                             more limited effect, as discussed below.                in the effective date, transfers from                 scenario, the conduct percent is 90
                                             This analysis is limited to the effect of               institutions to students, via the Federal             percent of the primary scenario from the
                                             delaying the effective date of the final                government, would be reduced by                       final regulation and the borrower
                                             regulations, and does not account for                   approximately $1.3 million for the 2017               percent is the same. The financial
                                             any potential future substantive changes                and 2018 loan cohorts. The costs of                   protection provided was always
                                             in the final regulations.                               providing financial protection were not               expected to increase over time so the
                                                Even with the delayed effective date,                quantified in the final regulations, and              delayed effective date in the near term
                                             borrowers will still be able to submit                  the Department has no additional data                 is not expected to significantly affect the
                                             claims. The provisions of the final                     to estimate costs institutions may avoid              amount of recoveries over the life of any
                                             regulations pertaining to the process for               from the delayed effective date of the                particular loan cohort, limiting any net
                                             review and determination of claims                      financial protection provisions.                      budget impact from the delay. To
                                             were not limited to specific cohorts                       There is some uncertainty as to the                estimate the potential reduction in
                                             designated by the effective date so the                 regulatory baseline against which this                recoveries related to the delayed
                                             delay will not result in specific cohorts               interim final rule’s impacts should be                effective date, we reduced recoveries for
                                             of borrowers being excluded from the                    assessed. As noted previously, the 705                the affected portion of the 2017 and
                                             process reflected in the final                          Notice delayed the effectiveness of                   2018 cohorts by five percent for the
                                             regulations, when implemented. Once                     certain provisions of the 2016 final                  private not-for-profit and proprietary
                                             in effect, the protection generated by the              regulations until a legal challenge is                sectors. As in the final regulations,
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                                             financial protection provisions will be                 resolved. If the legal resolution were to             recoveries from public institutions were
                                             available to be applied to claims from                  be reached on or after July 1, 2018, then             held constant at 75 percent across
                                             loans originated earlier, including the                 the 705 Notice would provide for the                  scenarios.




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                                                                   Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations                                                                      49119

                                                                                                    TABLE 1—REVISED ASSUMPTIONS FOR ONE-YEAR DELAY
                                                                                                                                                                             2017                                    2018
                                                                                               Cohort                                                         Public/private                           Public/private
                                                                                                                                                                                    Proprietary                             Proprietary
                                                                                                                                                              not for profit                           not for profit

                                             Conduct Percent:
                                                 Final Primary ............................................................................................                 3.0                 20                  2.4                 16
                                                 Delay Revised ..........................................................................................                   2.7                 18                 2.16               14.4
                                             Borrower Percent:
                                                 Final Primary ............................................................................................                 35                  45                 36.8               47.3
                                                 Delay Revised ..........................................................................................                   35                  45                 36.8               47.3

                                                                                                                                                                   Public           Priv/Prop             Public            Priv/Prop

                                             Recovery Percent:
                                                Final Primary ............................................................................................                  75              23.8                    75              23.8
                                                Delay Revised ..........................................................................................                    75             22.61                    75             22.61



                                                The net budget impact associated                                    a change of cost, but at this point it is                       delay is not significant as the three-year
                                             with these effects of the one-year delay                               not possible to know the discount rates                         period will fall beyond the delayed
                                             in the effective date on the borrower                                  in future fiscal years, so the cost of the                      effective date. Any significant change to
                                             defense provisions only is                                             modification will be determined in the                          the estimated net budget impact
                                             approximately ¥$37.7 million from the                                  year that it is executed. While the actual                      associated with the closed school
                                             2017 and 2018 loan cohorts.                                            cost of the future modification cannot be                       automatic discharge depends on any
                                                As the amount and composition of                                    determined at this time, the Department                         substantive changes made to the
                                             borrower defense claims and estimated                                  did approximate the effect of the delay                         provisions as a result of the upcoming
                                             recoveries over the lifetime of the                                    by shifting the timing of the relevant                          rulemaking and changes to economic
                                             relevant loan cohorts are not expected to                              discharges back by a year and                                   assumptions when the modification is
                                             change greatly due to the delayed                                      recalculating a modification using the                          executed.
                                             effective date, the Department does not                                discount rates and economic                                        Consistent with Executive Order
                                             estimate an economically significant net                               assumptions used for the calculation of                         13771 (82 FR 9339, February 3, 2017),
                                             budget impact from the delay itself,                                   the PB2018 modification. When                                   we have estimated that this interim final
                                             with a potential net budget impact                                     calculated in this manner, the delay in                         rule will result in cost savings.
                                             related to borrower defense claims of                                  the modification is expected to result in                       Therefore, this interim final rule is
                                             ¥$37.7 million in reduced costs.                                       estimated savings of less than $10
                                                The closed school automatic                                                                                                         considered an Executive Order 13771
                                                                                                                    million.                                                        deregulatory action.
                                             discharge provisions were the other
                                             significant source of estimated net                                       As the delay does not change the                             Accounting Statement
                                             budget impact in the final regulations.                                substance of the automatic discharge,
                                             Under credit reform scoring, the                                       we would expect the amount and                                     In evaluating whether a regulation is
                                             modification to older cohorts for the                                  composition of loans affected by the                            economically significant, a key
                                             automatic discharge provision estimated                                automatic discharge not to change                               consideration is whether the annual
                                             to cost $364 million was expected to                                   significantly. The closed school three-                         effect in any given year is over $100
                                             occur in FY 2017 in the President’s                                    year automatic discharge provisions                             million. To evaluate this, the
                                             Budget for FY 2018 (PB2018). As a                                      were applicable to loans made on or                             Department looked at the difference in
                                             result of the delay in the effective date,                             after November 1, 2013, and were not                            the undiscounted cashflows related to
                                             the Department will not execute the                                    linked to the effective date of the final                       the death, disability, and bankruptcy
                                             modification in FY 2017.                                               regulations. Therefore, delaying the                            (DDB) claims in which borrower defense
                                                The Department does expect to incur                                 effective date of those provisions will                         claims are included for the PB2018
                                             the costs associated with the three-year                               not change the set of loans eligible for                        baseline and the one-year delay scenario
                                             automatic discharge after the delayed                                  this automatic discharge. Additionally,                         described in the Net Budget Impacts
                                             effective date, but moving the execution                               borrowers would have the ability to                             section of this interim final rule. The
                                             of the modification beyond FY 2017 will                                apply for a closed school discharge                             difference from subtracting the one-year
                                             require a new cost analysis with                                       before July 1, 2018, if they did not want                       delay scenario from the baseline for the
                                             economic assumptions from the fiscal                                   to wait for the automatic discharge to be                       2017 and 2018 cohorts for FY2017 to FY
                                             year of the execution. This will result in                             implemented. For future cohorts, the                            2026 is summarized in Table 2.

                                              TABLE 2—DIFFERENCE IN UNDISCOUNTED NET CASHFLOWS FOR THE 2017 AND 2018 LOAN COHORTS FROM ONE-YEAR
                                                                   DELAY IN 2016 BORROWER DEFENSE RULE FOR FY2017 TO FY2026
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                                                                                                                                            2017                   2018                2019                2020                2021

                                             Change in DDB Cashflow ....................................................                       406,737               846,076            514,402            4,457,479         11,564,985

                                                                                                                                            2022                   2023                2024                2025               2026

                                             Change in DDB Cashflow ....................................................                    9,114,464                635,180         (2,086,812)           (981,585)            166,597




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                                             49120                   Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations

                                               Table 3 shows the effects when those                                      discounted at 7 and 3 percent and
                                             differences in the DDB cashflows are                                        annualized.

                                                                                                                           Category                                                                                                          Benefits

                                             Institutions may not incur compliance costs or costs of obtaining financial protection until the rule is in effect ...                                                                   Not Quantified

                                                                                                                           Category                                                                                                           Costs

                                                                                                                                                                                                                                  7%                    3%

                                             Continued use of state law based standard ............................................................................................................                                   Not Quantified
                                             Delay in providing consumer information about institution’s performance and practices.
                                             Potential decreased awareness and usage of closed school and false certification discharges.

                                             Savings associated with delay in compliance with paperwork requirements .........................................................                                                         ¥9.5                ¥9.51

                                                                                                                                                                                                                                         Transfers
                                                                                                                           Category
                                                                                                                                                                                                                                  7%                    3%

                                             Reduction in transfers from the Federal Government to affected borrowers in the 2017 and 2018 cohorts that
                                               would have been partially borne by affected institutions via reimbursements ....................................................                                                        ¥3.8                  ¥3.8

                                             Reduced reimbursements from affected institutions to affected students, via the Federal government as loan
                                               cohorts 2017 and 2018 are subject to the existing borrower defense regulation ...............................................                                                           ¥1.3                  ¥1.2

                                             Delay in closed school automatic discharge ...........................................................................................................                                    ¥6.6                  ¥6.6



                                             Paperwork Reduction Act of 1995                                             final regulations, the assessed estimated                                    The table below identifies the regulatory
                                                                                                                         burden was 253,136 hours, affecting                                          sections, OMB Control Numbers,
                                               As indicated in the Paperwork                                             both institutions and individuals, with                                      estimated burden hours, and estimated
                                             Reduction Act section published in the                                      an estimated annual cost of $9,458,484.                                      costs of the final regulations.

                                                                                                                                                                                                                                                Estimated cost
                                                                                                                                                                                                                                                 $36.55/hour
                                                                                         Regulatory section                                                           OMB control No.                         Burden hours                        institution
                                                                                                                                                                                                                                                 $16.30/hour
                                                                                                                                                                                                                                                  individual

                                             668.14 ..............................................................................................................              1845–0022             1,953 ..............................                 71,382
                                             668.41 ..............................................................................................................              1845–0004             5,346 ..............................                195,396
                                             668.171 ............................................................................................................               1845–0022             3,028 ..............................                110,673
                                             668.175 ............................................................................................................               1845–0022             60,560 ............................               2,213,468
                                             682.211 ............................................................................................................               1845–0020             5,784 ..............................                211,405
                                             682.402 ............................................................................................................               1845–0020             1,838 ..............................                 67,179
                                             685.222 ............................................................................................................               1845–0142             249 (Individuals) ............                        4,059
                                             685.222 ............................................................................................................               1845–0142             800 (Institutions) ............                      29,240
                                             685.300 ............................................................................................................               1845–0143             179,362 ..........................                6,555,681

                                                   Total .........................................................................................................   ..............................   258,920 ..........................                9,458,484

                                             Cost savings due to delayed effective date excluding 682.211, for which                                                 ..............................   253,136 ..........................                9,247,079
                                               early implementation is allowed.
                                             Burden remaining ............................................................................................           ..............................   5,784 ..............................               211,405



                                                This interim final rule delays the                                       and, therefore, those specific costs and                                     substantial number of small entities.
                                             effective date of all of the cited                                          hours remain applicable and have been                                        The small entities that are affected by
                                             regulations and would result in a cost                                      subtracted from the overall estimated                                        these regulations are small
                                             savings of the total amount of                                              cost savings. Based on the delayed                                           postsecondary institutions. As stated
                                             $9,247,079. This cost savings equals the                                    effective date of July 1, 2018, the revised                                  above, this delayed effective date is not
                                             cost savings from delaying the effective                                    estimated annual cost savings to                                             expected to have a significant economic
                                             date of all of the identified provisions of                                 institutions and individuals is                                              impact generally. This same analysis
                                             the final regulations other than                                            $9,247,079 ($9,458,484 ¥ $211,405)                                           applies with regard to affected small
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                                             § 682.211(i)(7), regarding mandatory                                        with an estimated burden hours savings                                       entities.
                                             forbearance based on a borrower defense                                     of 253,136 (258,920 ¥ 5,784).
                                             claim, with an estimated 5,784 hours                                                                                                                     Intergovernmental Review
                                                                                                                         Regulatory Flexibility Act
                                             and $211,405 cost, as such section has                                                                                                                     These programs are not subject to
                                             been designated for early                                                     The Secretary certifies that this                                          Executive Order 12372 and the
                                             implementation. Lenders may have                                            interim final regulation will not have a
                                                                                                                                                                                                      regulations in 34 CFR part 79.
                                             elected to invoke early implementation,                                     significant economic impact on a


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                                                              Federal Register / Vol. 82, No. 204 / Tuesday, October 24, 2017 / Rules and Regulations                                             49121

                                             Assessment of Educational Impact                        DEPARTMENT OF VETERANS                                family members, and one veteran
                                                                                                     AFFAIRS                                               service organization, which was
                                                Based on our own review, we have                                                                           Veterans of Foreign Wars. Some
                                             determined that these final regulations                 38 CFR Part 3                                         comments addressed more than one
                                             do not require transmission of                                                                                issue. In those instances, VA reviewed
                                                                                                     RIN 2900–AP84
                                             information that any other agency or                                                                          and considered each issue
                                             authority of the United States gathers or               Extension of the Presumptive Period                   independently. VA also grouped
                                             makes available.                                        for Compensation for Gulf War                         together by similar topic all of the issues
                                                Accessible Format: Individuals with                  Veterans                                              raised by the commenters that
                                             disabilities may obtain this document in                                                                      concerned at least one portion of the
                                                                                                     AGENCY:    Department of Veterans Affairs.            rule. VA organized the responses to the
                                             an accessible format (e.g., braille, large
                                             print, audiotape, or compact disc) on                   ACTION:   Final rule.                                 comments by topic. VA responds to all
                                             request to the contact person listed                                                                          commenters as follows.
                                                                                                     SUMMARY:    The Department of Veterans
                                             under FOR FURTHER INFORMATION                           Affairs (VA) is issuing this final rule to            I. Supportive
                                             CONTACT.                                                affirm its adjudication regulations                      VA received five comments
                                                Electronic Access to this Document:                  regarding compensation for disabilities               expressing support for the extension.
                                             The official version of this document is                resulting from undiagnosed illnesses                  One commenter provided personal
                                             the document published in the Federal                   suffered by veterans who served in the                testimony as a GW veteran that his
                                             Register. Free Internet access to the                   Persian Gulf War. This amendment is                   symptoms had a delayed-onset;
                                             official edition of the Federal Register                necessary to extend the period during                 therefore, an extension was appropriate
                                             and the Code of Federal Regulations is                  which disabilities associated with                    and justified. Another commenter
                                             available via the Federal Digital System                undiagnosed illnesses and medically                   provided personal testimony as a spouse
                                             at: www.gpo.gov/fdsys. At this site, you                unexplained chronic multi-symptom                     of a GW veteran stating that her
                                             can view this document, as well as all                  illnesses must become manifest in order               husband’s symptoms have ‘‘steadily
                                             other documents of this Department                      for a Veteran to be eligible for                      gotten worse over the years’’. VA
                                             published in the Federal Register, in                   compensation. The intended effect of                  appreciates the feedback and support.
                                             text or PDF. To use PDF, you must have                  this amendment is to provide                          VA makes no change based on these
                                             Adobe Acrobat Reader, which is                          consistency in VA adjudication policy,                comments.
                                             available free at the site.                             preserve certain rights afforded to                   II. Elimination of Expiration Date
                                                                                                     Persian Gulf War (GW) veterans, and
                                                You may also access documents of the                 ensure fairness for current and future                   The majority of commenters, some of
                                             Department published in the Federal                     GW veterans.                                          whom thanked VA for the extension,
                                             Register by using the article search                                                                          asserted that VA should eliminate the
                                                                                                     DATES: This final rule is effective
                                             feature at: www.Federal Register.gov.                                                                         expiration date. One commenter stated,
                                                                                                     October 24, 2017.
                                             Specifically, through the advanced                                                                            ‘‘I think that the deadline for [GW]
                                                                                                     FOR FURTHER INFORMATION CONTACT:                      presumptive claims should be totally
                                             search feature at this site, you can limit
                                             your search to documents published by                   Janel Keyes, Policy Analyst, Regulations              taken away since there is still not an
                                             the Department.                                         Staff (211D), Compensation Service,                   official end to the [GW] and we do not
                                                                                                     Veterans Benefits Administration, 810                 know when there will be one.’’ Another
                                             List of Subjects                                        Vermont Avenue NW., Washington, DC                    stated, ‘‘It took about 5 years after
                                                                                                     20420, Janel.Keyes@va.gov, (202) 461–                 getting out to see a pattern of illness and
                                             34 CFR Part 668                                         9700. (This is not a toll-free telephone              at a level to make me concerned. It took
                                               Administrative practice and                           number.)                                              even longer to see and feel the full
                                             procedure, Colleges and universities,                   SUPPLEMENTARY INFORMATION: On                         extent of my conditions.’’ Additionally,
                                             Consumer protection, Grant programs—                    October 17, 2016, VA published in the                 Veterans of Foreign Wars requested an
                                             education, Loan programs—education,                     Federal Register an interim final rule                open-ended presumptive period
                                             Reporting and recordkeeping                             (81 FR 71382) amending its adjudication               ‘‘without an artificial time limit’’.
                                             requirements, Selective Service System,                 regulation regarding compensation for                    VA makes no change based on these
                                             Student aid, Vocational education.                      disabilities suffered by veterans who                 comments. Section 102(7) of the Persian
                                                                                                     served in the Southwest Asia Theater of               Gulf War Veterans’ Benefits Act, Title I
                                             34 CFR Part 674                                         Operations during the GW. In order to                 of the Veterans’ Benefits Improvement
                                                                                                     ensure that benefits established by                   Act of 1994, Public Law 103–446, states
                                               Loan programs—education, Reporting                                                                          Congress’ finding that further research
                                                                                                     Congress are fairly administered, VA
                                             and recordkeeping requirements,                         extended the evaluation period in                     must be undertaken to determine the
                                             Student aid.                                            which disabilities associated with                    causes of GW veterans’ illnesses and
                                             34 CFR Parts 682 and 685                                undiagnosed illnesses and chronic                     that
                                                                                                     multi-symptom illnesses must become                   pending the outcome of such research,
                                               Administrative practice and                           manifest in order for a veteran to be                 veterans who are seriously ill as the result of
                                             procedure, Colleges and universities,                   eligible for compensation. Accordingly,               such illnesses should be given the benefit of
                                             Loan programs—education, Reporting                      VA removed the date, December 31,                     the doubt and be provided compensation to
                                             and recordkeeping requirements,                         2016, from 38 CFR 3.317(a)(1)(i) and                  offset the impairment in earning capacities
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                                             Student aid, Vocational education.                      added, in its place, December 31, 2021.               they may be experiencing.

                                               Dated: October 16, 2017.                                 VA invited interested persons to                   Hence, Congress contemplated an
                                                                                                     submit written comments on or before                  ongoing process for investigating the
                                             Betsy DeVos,
                                                                                                     December 16, 2016. VA received 22                     nature and causes of GW veterans’
                                             Secretary of Education.                                 comments in response to the interim                   illnesses that is reflected in the current
                                             [FR Doc. 2017–22851 Filed 10–20–17; 4:15 pm]            final rule. VA received comments from                 statutory and regulatory scheme. See 38
                                             BILLING CODE 4000–01–P                                  military service members, veterans,                   U.S.C. 1117 and 38 CFR 3.317.


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Document Created: 2018-10-25 10:11:02
Document Modified: 2018-10-25 10:11:02
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule; delay of effective date; request for comments.
DatesEffective date: As of October 24, 2017, the effective date for the amendments to or additions of: Sec. Sec. 668.14(b)(30), (31), and (32); 668.41(h) and (i); 668.71(c); 668.90(a)(3); 668.93(h), (i), (j); 668.171; 668.175 (c) and (d) and (f) and (h); Appendix C to Subpart L of Part 668; 674.33(g)(3) and (g)(8); 682.202(b)(1); 682.211(i)(7); 682.402(d)(3), (d)(6)(ii)(B)(1) and (2), (d)(6)(ii)(F) introductory text, (d)(6)(ii)(F)(5), (d)(6)(ii)(G), (d)(6)(ii)(H) through (K), (d)(7)(ii) and (iii), (d)(8), and (e)(6)(iii); 682.405(b)(4); 682.410(b)(4) and (b)(6)(viii); 685.200(f)(3)(v) and (f)(4)(iii); 685.205(b)(6); 685.206(c); 685.212(k); 685.214(c)(2), (f)(4) through (7); 685.215(a)(1), (c)(1) through (c)(8), and (d); 685.222; Appendix A to Subpart B of Part 685; and 685.308(a), published November 1, 2016, at 81 FR 75926, and delayed until further notice on June 16, 2017, in 82 FR 27621, is further delayed until July 1, 2018.
ContactBarbara Hoblitzell, U.S. Department of Education, 400 Maryland Ave. SW., Mail Stop 6W247, Washington, DC 20202. Telephone: (202) 453-7583 or by email at: [email protected]
FR Citation82 FR 49114 
RIN Number1840-AD25
CFR Citation34 CFR 668
34 CFR 674
34 CFR 682
34 CFR 685
CFR AssociatedAdministrative Practice and Procedure; Colleges and Universities; Consumer Protection; Grant Programs-Education; Loan Programs-Education; Reporting and Recordkeeping Requirements; Selective Service System; Student Aid and Vocational Education

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