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Top Republicans Request Additional Time for Public Comments on ED’s First Batch of Draft Rules

By Hugh T. Ferguson, NASFAA Senior Staff Reporter

The top Republican lawmakers on the House and Senate education committees are calling on the Department of Education (ED) to extend the comment period for its Notice of Proposed Rulemaking (NPRM) that was unveiled on Wednesday.

In a letter penned by Rep. Virginia Foxx (R-N.C.), ranking member of the House Education and Labor committee, and Sen. Richard Burr (R-N.C.), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) committee, the pair called on ED to extend the comment period by an additional 30 days. They also allege that the regulatory changes overstep the agency’s authority and usurp the “power of the purse” entrusted to Congress.

“The Supreme Court has made it clear that, absent ‘clear congressional authorization,’ agencies are bound by the laws as Congress has written them, not as agencies wish to interpret them,” Burr said. “Secretary Cardona does not have the legal authority to make these changes. Therefore, he should withdraw these proposed rules and instead ask Congress to act.”

The topics covered as a part of the draft rules include: borrower defense to repayment, total and permanent disability loan discharge, closed school loan discharge, false certification loan discharge, student loan interest capitalization, and Public Service Loan Forgiveness (PSLF).

Broadly, the NPRM reflects ED’s stated desire to streamline and simplify processes for borrowers, whether that be through adding automation where possible, creating a single federal standard to reduce complexity, or expanding eligibility where statute permits. Greater institutional accountability was also a theme of this rulemaking session and appears in the proposed regulatory text.

As a part of the negotiated rulemaking process, the official publication of the NPRM means that public comments are now due Aug. 12, 2022. ED will review comments and make necessary changes to the proposed rules. Any final language published by Nov. 1, 2022 will become effective July 1, 2023 unless specified for early implementation by the department.

While the Republican duo argued that the “burdensome proposal,” is merely a guise to implement broad student loan debt cancellation ahead of the midterm elections and accused the administration of overriding the legislative branch, they added that the current timeline does not offer Congress and the public sufficient time to consider the proposed changes, as the proposals are “buried within 750 pages of bureaucratic legalese.”

As a part of the process please be sure to share your feedback on these proposed rules with NASFAA to inform the drafting of our comments, as well as any comments you submit on behalf of your institution, by emailing [email protected].org.

 

Publication Date: 7/14/2022


Peter G | 7/18/2022 2:37:14 PM

Regardless of anything else, the concern about scope is apt, and has been an issue with the whole cycle.

Aside from the lack of ability to read thoroughly and thoughtfully comment in this timespan, I think it's fair to question whether the breadth of topics made it possible to truly have experts on each issue at the table. Some of these issues do bleed over into other regs (e.g. records retention requirements) that were not in and of themselves part of the negotiation sessions.

Part of me does also wonder if ED will end up ruing chasing this scope, since this ambitious agenda will now be litigated in a post-West Virginia vs. EPA environment, and they're going to be lucky to squeeze things to publication quickly in such that they aren't subject to the Congressional Review Act but that doesn't also harm their standing in court.

If nothing else, hopefully this marathon/mega-session is a learning lesson and ED scales back to something more manageable for future rulemaking. Probably not, but hope springs eternal.

David S | 7/14/2022 12:1:20 PM

Ironic that members of Congress would use a phrase such as "...absent clear congressional authorization..." given that the HEA has been absent clear congressional reauthorization for 14 years. Sure, Secretary Cardona and anyone else can "ask Congress to act," and we've been doing just that for years. They've declined. So if something is going to get done, it's going to be up to the Administration to do it.

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