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Various provisions of the Department’s regulations regarding the eligibility of faith-based entities to participate in the Department’s higher education and student aid programs, and the eligibility of students to participate in student aid programs and obtain certain benefits under those programs, unnecessarily restrict participation by religious entities. For example, some provisions may be overly broad in their prohibition of activities or services that relate to sectarian instruction or religious worship.  Other provisions may be overly broad in prohibiting the benefits a borrower may receive based on faith-based activity. The Department is proposing to review and amend, through negotiated rulemaking, such regulations in order to be consistent with current law, and to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities.

Statement of Need:

Rulemaking is necessary in light of the recent United States Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), and the October 6, 2017, Memorandum for All Executive Agencies issued by the Attorney General of the United States pursuant to Executive Order No. 13798.

Summary of the Legal Basis:

The Department has the authority to establish a negotiated rulemaking committee with the purpose of creating, amending or rescinding regulations in the Code of Federal Regulations. 

Alternatives:

One alternative is not to negotiate on the proposed topic and instead work on sub-regulatory guidance to ease burden and clarify current regulations for postsecondary institutions and accreditors.

Note that, the intent to establish a negotiated rulemaking committee has already been published; the topics proposed for negotiation have been added to the Agency Agenda Report/Unified Agenda . Further, the Department has already conducted one of three public hearings inviting comment on our Federal Register notice outlining our intent to negotiate. After reviewing feedback from comments received, the Department may choose to modify the topics proposed for negotiation and at that time we can more thoughtfully provide alternatives. 

Anticipated Costs and Benefits:

We have limited information about the potential cost and benefits and cannot estimate at this time. 

Risks:

By negotiating on a wide range of topics in one negotiated rulemaking panel there is an increased risk on not reaching consensus.   To account for this the Department will provide draft language prior to the first session of three sessions (each session is three days long) of negotiated rulemaking. Historically, the first session has been used as a listening session to get feedback from the rulemaking committee and the Department provides more specific proposals to the rulemaking committee between the first and second session.

Also, the Department will form two subcommittees, one specifically for faith-based entities. These committees will report back to the main rulemaking committee with their reports.