Eligibility of Students at Institutions of Higher Education for Funds Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (rule, 85 FR…
Summary
An interim final rule from the Office of Postsecondary Education, Department of Education, published in the Federal Register on June 17, 2020 (Vol. 85, No. 117), Docket ID ED–2020–OPE–0078. The Department says the rule defines which students may receive emergency financial aid grants under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The preamble refers to HEERF funds under section 18004(a)(1) and to the reports on those funds that section 18004(e) requires institutions to submit to the Secretary. The regulations are effective June 17, 2020, with comments due on or before July 17, 2020.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Eligibility of Students at Institutions of Higher Education for Funds Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (rule, 85 FR….”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/eligibility-of-students-at-institutions-of-higher-education-for-funds-78e1305c6f/
, SHA-256 587918fe49a26209a95a42304fdb3ad878cda4fce8b6d33d6148f4523fc8b262.Full text
36494 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations
C. Collection of Information L60(a) of Appendix A, Table 1 of DHS zone described in paragraph (a) of this
This rule will not call for a new Instruction Manual 023–01–001–01, section unless authorized by the COTP
collection of information under the Rev. 1. A Record of Environmental or the COTP’s designated representative.
Paperwork Reduction Act of 1995 (44 Consideration supporting this (2) To seek permission to enter,
U.S.C. 3501–3520). determination is available in the docket. contact the COTP or the COTP’s
For instructions on locating the docket, representative by VHF Channel 16.
D. Federalism and Indian Tribal see the ADDRESSES section of this Those in the safety zone must comply
Governments preamble. with all lawful orders or directions
A rule has implications for federalism given to them by the COTP or the
G. Protest Activities
under Executive Order 13132, COTP’s designated representative.
Federalism, if it has a substantial direct The Coast Guard respects the First (d) Enforcement period. This section
effect on the States, on the relationship Amendment rights of protesters. will be enforced from 6 p.m. through 9
between the National Government and Protesters are asked to call or email the p.m. on July 2, 2020.
the States, or on the distribution of person listed in the FOR FURTHER Dated: May 29, 2020.
power and responsibilities among the INFORMATION CONTACT section to
T. J. Barelli,
various levels of government. We have coordinate protest activities so that your
message can be received without Captain, U.S. Coast Guard, Captain of the
analyzed this rule under that Order and Port Sector San Diego.
have determined that it is consistent jeopardizing the safety or security of
[FR Doc. 2020–12089 Filed 6–16–20; 8:45 am]
with the fundamental federalism people, places or vessels.
BILLING CODE 9110–04–P
principles and preemption requirements List of Subjects in 33 CFR Part 165
described in Executive Order 13132.
Also, this rule does not have tribal Harbors, Marine safety, Navigation
implications under Executive Order (water), Reporting and recordkeeping DEPARTMENT OF EDUCATION
13175, Consultation and Coordination requirements, Security measures,
with Indian Tribal Governments, Waterways. 34 CFR Part 668
because it does not have a substantial For the reasons discussed in the [Docket ID ED–2020–OPE–0078]
direct effect on one or more Indian preamble, the Coast Guard amends 33
tribes, on the relationship between the RIN 1840–ZA04
CFR part 165 as follows:
Federal Government and Indian tribes,
PART 165—REGULATED NAVIGATION Eligibility of Students at Institutions of
or on the distribution of power and
AREAS AND LIMITED ACCESS AREAS Higher Education for Funds Under the
responsibilities between the Federal
Coronavirus Aid, Relief, and Economic
Government and Indian tribes.
■ 1. The authority citation for part 165 Security (CARES) Act
E. Unfunded Mandates Reform Act continues to read as follows: AGENCY: Office of Postsecondary
The Unfunded Mandates Reform Act Authority: 46 U.S.C. 70034, 70051; 33 CFR Education, Department of Education.
of 1995 (2 U.S.C. 1531–1538) requires 1.05–1, 6.04–1, 6.04–6, and 160.5;
ACTION: Interim final rule.
Federal agencies to assess the effects of Department of Homeland Security Delegation
their discretionary regulatory actions. In No. 0170.1. SUMMARY: The Department of Education
particular, the Act addresses actions ■ 2. Add § 165.T11–024 to read as (Department) issues this interim final
that may result in the expenditure by a follows: rule so that institutions of higher
State, local, or tribal government, in the education may appropriately determine
aggregate, or by the private sector of § 165.T11–024 Safety Zone; San Diego
Bay, San Diego, CA. which individuals attending their
$100,000,000 (adjusted for inflation) or institution are eligible to receive
more in any one year. Though this rule (a) Location. The following area is a
emergency financial aid grants to
will not result in such an expenditure, safety zone. All waters of San Diego
students under the Coronavirus Aid,
we do discuss the effects of this rule Bay, from surface to bottom,
Relief, and Economic Security (CARES)
elsewhere in this preamble. encompassed by a line connecting the
Act (March 27, 2020).
following points beginning at
F. Environment 32°41′23.4″ N, 117°8′39.6″ W (Point A); DATES: These regulations are effective
We have analyzed this rule under thence running northwesterly to June 17, 2020. We must receive your
Department of Homeland Security 32°41′14.4″ N, 117°9′3″ W (Point B); comments on or before July 17, 2020.
Directive 023–01, Rev. 1, associated thence running southeasterly to 32°41′3″ ADDRESSES: Submit your comments
implementing instructions, and N, 117°8′43.8″ W (Point C); thence through the Federal eRulemaking Portal
Environmental Planning COMDTINST running east to 32°41′12″ N, 117°8′20.4″ or via postal mail, commercial delivery,
5090.1 (series), which guide the Coast W (NAD 83) (Point D); thence running or hand delivery. We will not accept
Guard in complying with the National north to the beginning point. comments submitted by fax or by email
Environmental Policy Act of 1969 (42 (b) Definitions. As used in this or those submitted after the comment
U.S.C. 4321–4370f), and have section, designated representative period. To ensure that we do not receive
determined that this action is one of a means a Coast Guard Patrol duplicate copies, please submit your
category of actions that do not Commander, including a Coast Guard comments only once. In addition, please
individually or cumulatively have a coxswain, petty officer, or other officer include the Docket ID at the top of your
significant effect on the human operating a Coast Guard vessel and a comments.
khammond on DSKJM1Z7X2PROD with RULES
environment. This rule involves a safety Federal, State, and local officer If you are submitting comments
zone lasting only three hours that will designated by or assisting the Captain of electronically, we strongly encourage
prohibit entry within certain navigable the Port San Diego (COTP) in the you to submit any comments or
waters of San Diego Bay in the vicinity enforcement of the safety zone. attachments in Microsoft Word format.
of the General Dynamics NASSCO (c) Regulations. (1) Under the general If you must submit a comment in Adobe
shipyard. It is categorically excluded safety zone regulations in subpart C of Portable Document Format (PDF), we
from further review under paragraph this part, you may not enter the safety strongly encourage you to convert the
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations 36495
PDF to print-to-PDF format or to use During and after the comment period, HEERF funds under section 18004(a)(1)
some other commonly used searchable you may inspect all public comments to cover certain coronavirus-related
text format. Please do not submit the about this interim final rule by costs, while the second sentence
PDF in a scanned format. Using a print- accessing Regulations.gov. Due to the requires an institution to give at least
to-PDF format allows the Department to current COVID–19 pandemic, the half of its allocated HEERF funds as
electronically search and copy certain Department’s buildings are currently not grants to students. Finally, section
portions of your submissions. open. However, upon reopening, you 18004(e) requires institutions to submit
• Federal eRulemaking Portal: Go to may also inspect the comments in reports to the Secretary describing how
www.regulations.gov to submit your person at 400 Maryland Ave. SW, the funds were used under the section
comments electronically. Information Washington, DC 20202, between 8:30 and authorizes the Secretary to specify
on using regulations.gov, including a.m. and 4:00 p.m., Eastern Time, the time and manner of such reporting.
instructions for accessing agency Monday through Friday of each week Although the second sentence of
documents, submitting comments, and except Federal holidays. To schedule a section 18004(c) states that the
viewing the docket, is available on the time to inspect comments, please emergency financial aid grants are to be
site under ‘‘Help.’’ contact the person listed under FOR given to students, the CARES Act does
• Postal Mail, Commercial Delivery, FURTHER INFORMATION CONTACT. not define the term ‘‘student’’ or the
or Hand Delivery: The Department Assistance to Individuals with phrases ‘‘grants to students’’ or
strongly encourages commenters to Disabilities in Reviewing the ‘‘emergency financial aid grants to
submit their comments electronically. Rulemaking Record: On request, we will students.’’ In addition to leaving these
However, if you mail or deliver your provide an appropriate accommodation terms undefined, Congress also
comments about the interim final rule, or auxiliary aid to an individual with a included an implicit reference to title IV
address them to Gaby Watts, U.S. disability who needs assistance to terms immediately after the phrase
Department of Education, 400 Maryland review the comments or other ‘‘emergency financial aid grants to
Ave. SW, Room 258–02, Washington, documents in the public rulemaking students,’’ 18004(c) (‘‘including eligible
DC 20202. record for this interim final rule. To expenses under a student’s cost of
Privacy Note: The Department’s schedule an appointment for this type of attendance’’), and explicit references to
policy is to make comments received accommodation or auxiliary aid, please that same title IV standard following the
from members of the public available for contact the person listed under FOR phrase ‘‘grants to students’’ in two of the
public viewing on the Federal FURTHER INFORMATION CONTACT. preceding subsections, 18004(a)(2) and
eRulemaking Portal at Background: (a)(3) (‘‘the student’s cost of attendance
www.regulations.gov. Therefore, On March 27, 2020, Congress enacted (as defined under section 472 of the
commenters should include in their the CARES Act, Public Law 116–136, to Higher Education Act’’). In determining
comments only information that they help Americans cope with the economic who constitutes a ‘‘student’’ for
wish to make publicly available. and health crises created by the novel purposes of ‘‘emergency financial aid
coronavirus disease (COVID–19) grants to students’’ in section 18004 of
FOR FURTHER INFORMATION CONTACT: For
outbreak. Section 18004 of the CARES the CARES Act, the Department is
further information contact Gaby Watts, Act establishes the Higher Education
U.S. Department of Education, 400 mindful that ‘‘[s]tatutory construction
Emergency Relief Fund (HEERF) and . . . is a holistic endeavor.’’ United Sav.
Maryland Ave. SW, Room 258–02, instructs the Secretary to allocate Ass’n of Texas v. Timbers of Inwood
Washington, DC 20202. Telephone: funding to eligible institutions of higher Forest Assocs., Ltd., 484 U.S. 365, 371
202–453–7195. Email: Gaby.Watts@ education in connection with the (1988). In the appropriate
ed.gov. COVID–19 outbreak. Section 18004(c)
If you use a telecommunications circumstances, the Department’s
specifically allows institutions to use construction of the CARES Act must be
device for the deaf (TDD) or a text their HEERF allocation under informed or even controlled by other
telephone (TTY), call the Federal Relay § 18004(a)(1) for ‘‘any costs associated relevant law. (‘‘We assume that
Service (FRS), toll-free, at (800) 877– with significant changes to the delivery Congress is aware of existing law when
8339. of instruction due to the coronavirus,’’ it passes legislation,’’ Hall v. United
SUPPLEMENTARY INFORMATION: while adding the restriction that funds States, 566 U.S. 506, 516 (2012) quoting
Invitation to Comment: Although the cannot be used for ‘‘payment to Miles v. Apex Marine Corp., 498 U.S.
Department has decided to issue this contractors for the provision of pre- 19, 32 (1990).) In context the category of
final rule without first publishing a enrollment recruitment activities; ‘‘student’’ recipients eligible for
proposed rule for public comment, we endowments; or capital outlays ‘‘emergency financial aid grants’’ is
are interested in whether you think we associated with facilities related to therefore at a minimum ambiguous.
should make any changes to this rule. athletics, sectarian instruction, or This is a critical ambiguity, requiring
We invite your comments. We will religious worship.’’ Section 18004(c) the Department to exercise its narrow
consider these comments in also states that institutions must use at interpretative authority under Chevron
determining whether to revise the rule. least 50 percent of their allocations ‘‘to U.S.A., Inc. v. Natural Res. Def. Council,
We invite you to assist us in provide emergency financial aid grants Inc., 467 U.S. 837, 843–44 (1984).
complying with the specific to students for expenses related to the (‘‘ ‘The power of an administrative
requirements of Executive Orders 12866 disruption of campus operations due to agency to administer a congressionally
and 13563 and their overall requirement coronavirus (including eligible expenses created . . . program necessarily
of reducing regulatory burden that under a student’s cost of attendance, requires the formulation of policy and
khammond on DSKJM1Z7X2PROD with RULES
might result from this final rule. Please such as food, housing, course materials, the making of rules to fill any gap left,
let us know of any further ways we technology, health care, and child implicitly or explicitly, by Congress.’
could reduce potential costs or increase care),’’ implicitly allowing institutions quoting Morton v. Ruiz, 415 U.S. 199,
potential benefits while preserving the to use more than 50 percent of their 231 (1974). . . . Sometimes the
effective and efficient administration of funds for this purpose. Thus, the first legislative delegation to an agency on a
the Department’s programs and sentence of section 18004(c) generally particular question is implicit rather
activities. allows an institution to use its allocated than explicit.’’) Here the Secretary
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
36496 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations
exercises her authority under 20 U.S.C. otherwise uses the funds to make financial student aid under the HEA,
1221e–3 and 20 U.S.C. 3474. Relying on payments to students for purposes of, including title IV of the HEA. However,
statutory language and context to for example, ‘‘costs associated with even though it is true that all title IV aid
develop a harmonious construction significant changes to the delivery of is subject to title IV eligibility
faithful to the entire statutory scheme, instruction due to the coronavirus,’’ requirements, it does not follow that all
see Food and Drug Admin. v. Brown & these payments would also qualify as non-title IV aid is exempt from title IV
Williamson Tobacco Corp., 529 U.S. ‘‘postsecondary education’’ benefits to eligibility requirements. Rather, non-
120, 132–33 (2000) (‘‘In determining individuals. The Department has not title IV aid can be subject to title IV
whether Congress has specifically identified any specific language in eligibility requirements. For example,
addressed the question at issue, a Section 18004, or elsewhere in the scholarships distributed under the Fund
reviewing court should not confine CARES Act, that suggests Congress for the Improvement of Postsecondary
itself to examining a particular statutory intended to include aliens who are not Education, a non-title IV program,
provision in isolation. The meaning—or ‘‘qualified’’ for purposes of Section 1611 require that recipients meet certain title
ambiguity—of certain words or phrases among the recipients of HEERF funds, IV eligibility requirements, as noted
may only become evident when placed notwithstanding the preexisting general below. 20 U.S.C. 1138(d).
in context.’’), we have concluded that prohibition in Section 1611. In providing emergency financial aid
Congress intended the category of those On the other extreme, the Department grants through section 18004 of the
eligible for ‘‘emergency financial aid concludes that a more narrow CARES Act, Congress also used the
grants to students’’ in section 18004 of interpretation of the term ‘‘student’’ in framework under title IV of the HEA for
the CARES Act to be limited to those the phrase ‘‘emergency financial aid the distribution of these emergency
individuals eligible for title IV grants to students’’—for example, to financial aid grants to students,
assistance. cover only the group that received implying that the Department and
The Department considered a number Federal Pell Grants as referenced in institutions adhere to the requirements
of factors in reaching this conclusion. section 18004(a)(1)(A)—would be overly under title IV, such as using the
For one, an interpretation of the term restrictive and less supportable under definition of ‘‘cost of attendance’’ under
‘‘student’’ in ‘‘emergency financial aid the language of the CARES Act. title IV of the HEA and the same
grants to students’’ that was broad Earlier in the CARES Act, in section systems for distributing Federal
enough to cover anyone engaged in 3504 entitled ‘‘Use of Supplemental financial student aid to institutions
learning, or anyone enrolled in any way Educational Opportunity Grants for
under title IV of the HEA.
at an institution, or anyone enrolled Emergency Aid,’’ Congress expressly
Indeed, Congress specifically
full-time at an institution in a program authorizes institutions to use money
references title IV of the HEA in various
leading to a recognized postsecondary allocated to them under the Federal
provisions in section 18004 of the
credential, would be significantly Supplemental Educational Opportunity
CARES Act, including the following
curtailed at the outset by existing law Grant (FSEOG) program, 20 U.S.C.
1070b et seq., for ‘‘emergency financial provisions:
independent of title IV with regard to
aid grants to students,’’ which is the • Section 18004(a)(1) links a
certain immigration statuses. 8 U.S.C.
identical phrase Congress used in component of the institutional
1611(a) already prohibits certain
section 18004. Although Congress did allocation for HEERF to enrollment of
individuals from receiving any ‘‘Federal
public benefit’’ and applies not expressly state that these emergency Pell Grant recipients, and a student
‘‘[n]otwithstanding any other provision financial aid grants to students must be must be eligible for Federal financial
of law.’’ This prohibition clearly applies limited to those students who are student aid under section 484 of title IV
to the HEERF funds. Section 1611(c) eligible for participation in programs of the HEA to receive Pell Grants. 20
defines ‘‘Federal public benefit’’ to under title IV of the HEA, the context U.S.C. 1070a(a) (stating Pell Grants are
include (A) ‘‘any grant . . . provided by indicates that Congress intended that only for an ‘‘eligible student (defined in
an agency of the United States or by restriction as a general rule. Not only accordance with [S]ection 484 [of the
appropriated funds of the United was the previously planned use of the HEA])’’); 20 U.S.C. 1091.
States,’’ as well as (B) ‘‘any . . . funds conditioned upon title IV • Sections 18004(a)(2) and (3) require
postsecondary education . . . benefit eligibility (since the FSEOG program is institutions to use funds ‘‘for grants to
. . . for which payments or assistance part of title IV of the HEA) but also students for any component of the
are provided to an individual . . . by an because the text of the CARES Act student’s cost of attendance (as defined
agency of the United States or by allows institutions to ‘‘waive the under § 472 of [title IV of] the Higher
appropriated funds of the United amount of need calculation under Education Act), including food,
States.’’ 1 To the extent an institution section 471’’ of the HEA, which is a housing, course materials, technology,
uses HEERF funds, which qualify as calculation that applies to title IV aid. healthcare, and child care.’’ (Emphasis
‘‘appropriated funds of the United Because ‘‘identical words and phrases added.)
States,’’ to provide ‘‘emergency financial within the same statute should normally • Section 18004(a)(3) specifically
aid grants to students,’’ the grants would be given the same meaning,’’ Powerex references ‘‘part B of title VII of the
qualify as a Federal public benefit under Corp. v. Reliant Energy Services, Inc., HEA,’’ and section 741(d)(1) of part B of
both Section 1611(c)(1)(A) and (B) 551 U.S. 224, 232 (2007), the implicit title VII of the HEA expressly requires
because they would be ‘‘grant[s] . . . by title IV eligibility requirement students to be eligible under section
appropriated funds,’’ as well as associated with ‘‘emergency financial 484(a) of the HEA to receive grants or
‘‘postsecondary education’’ benefits to aid grants to students’’ in section 3504 scholarships. 20 U.S.C. 1138(d).
khammond on DSKJM1Z7X2PROD with RULES
individuals. To the extent an institution should apply to the distribution of • Section 18004(b) expressly requires
‘‘emergency financial aid grants to the Secretary to use the same systems
1 Because title IV also contains an eligibility students’’ in section 18004. Congress that are used to distribute funding to
requirement based on immigration status which is did not previously choose to provide each institution under title IV of the
similar in most respects to the requirement in 8
U.S.C. 1611, there is little remaining application for
emergency financial aid grants through HEA in order to distribute funds to each
the prohibition in 8 U.S.C. 1611 once title IV the HEA, and thus these grants, by institution under section 18004(a)(1) of
eligibility requirements have been applied. definition, do not constitute Federal the CARES Act.
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations 36497
• Section 18004(c) again expressly Final Rule: regard to title IV programs over the
refers to ‘‘a student’s cost of For purposes of the phrases ‘‘grants to years. In contrast, using a generic, broad
attendance,’’ which is a defined term in students’’ and ‘‘emergency financial aid standard would require the Department
section 472 of the HEA. 20 U.S.C. grants to students’’ in sections and institutions to wade through a
1087ll. 18004(a)(2), (a)(3), and (c) of the CARES litany of specific questions about which
The most congruent definition of Act, ‘‘student’’ is defined as an groups of potential students do or do
‘‘student’’ for purposes of ‘‘emergency individual who is, or could be, eligible not qualify for ‘‘grants to students.’’ 4
financial aid grants to students’’ in under section 484 of the HEA, to For the majority of students, active
section 18004 is a person who is or participate in programs under title IV of participation in title IV programs will
would be eligible under section 484 of the HEA. We add this definition to 34 clearly demonstrate to the institution
the HEA for title IV aid. Indeed, it CFR 668.2. and the Department that they are
would be an illogical result for Congress An important policy goal for the qualified as a student to receive
to require students to be eligible under Department is to make emergency emergency financial aid grants. For
section 484 of title IV of the HEA for financial aid grants available to students example, with regard to the title IV
grants under section 18004(a)(3) of the in the most efficient, effective, and eligibility requirement related to
CARES Act, which expressly references expedient way possible and consistent citizenship or appropriate immigration
part B of title VII of the HEA, but not with Congressional intent. At the same status in the United States, the majority
for grants under sections 18004(a)(1) time, the Department has an obligation of students’ statuses can be verified by
and (2) of the CARES Act, especially to taxpayers to prevent waste, fraud, and the fact of their participation in title IV.5
when Congress in section 18004(d) abuse. The potential for waste, fraud, And this verification also ensures that
directs the Secretary to prioritize funds and abuse is significant when the disbursement of grants to those
under section 18004(a)(3) for institutions of higher education are individuals occurs in compliance with
institutions that did not receive given the opportunity to quickly make the independent statutory restriction
sufficient funding under section cash awards to students, particularly found in 8 U.S.C. 1611.
18004(a)(1) and (2). ‘‘Interpretations of when institutions are rightfully The Department also acknowledges
statute which would produce absurd concerned about declining enrollments the efficiency of leveraging existing
results are to be avoided.’’ Griffin v. and the loss of ancillary revenue as a processes and procedures to minimize
Ocean Contractors, Inc., 458 U.S. 564, result of COVID–19. In addition, there burden on institutions implementing
576 (1982). To interpret section 18004 have been reports that the unusual this IFR. For example, institutions could
in a holistic manner, it appears that the circumstances caused by COVID–19 encourage students who currently do
best interpretation of ‘‘student’’ where have given rise to new efforts to defraud not receive title IV aid to submit the
section 18004 references ‘‘emergency government programs in other Free Application for Federal Student
financial aid grants to students’’ is to contexts.3 Aid (FAFSA) in order to determine title
mean a person who is eligible under The Department has considered these IV eligibility.
section 484 of the HEA to receive title issues in reaching its interpretation of In addition, this approach to
IV aid.2 the category of those eligible for interpreting ‘‘student’’ within the phrase
‘‘emergency financial aid grants to ‘‘emergency financial aid grants to
2 To calculate the HEERF allocation under section students’’ in section 18004(a)(2), (a)(3), students’’ also allows the Department to
18004(a)(1)(B), the Department ‘‘approximated the and (c). The Department has concluded prevent potential waste, fraud, and
factors using the best available data’’ by multiplying that the best approach to interpreting
the 2017/2018 full-time enrollment number by the abuse. For example, without the title IV
fall 2018 percentage of undergraduate, graduate, ‘‘student’’ in ‘‘emergency financial aid eligibility standard, the existence of
and professional students not enrolled exclusively grants to students’’ is to mean a person HEERF funding could incentivize
in distance education, as self-reported by who is eligible under section 484 of the
institutions and compiled in the Department’s individuals who are not qualified and
Integrated Postsecondary Education Data System
HEA to receive title IV aid, as suggested cannot qualify under the title IV
(IPEDS). See Methodology for Calculating by the references to title IV elsewhere in
Allocations per Section 18004(a)(1) of the CARES section 18004. This approach uses a 4 For example, there would need to be
Act, https://www2.ed.gov/about/offices/list/ope/ clear, existing standard that is familiar consideration and a determination made regarding
heerf90percentformulaallocationexplanation.pdf.
Thus, the approach taken in calculating the ‘‘full-
to the Department and to institutions whether to include or exclude individuals based on
and will allow both the Department and whether they are enrolled for credit, enrolled in an
time equivalent enrollment of students’’ in section
off-campus program, simultaneously finishing a
18004(a)(1)(B) differs from the approach taken in institutions to implement the HEERF high school degree, taking remedial courses, taking
this rule in interpreting and applying ‘‘grants to provisions in an efficient, effective, and only zero-credit thesis courses, enrolled exclusively
students’’ elsewhere in section 18004. The
Department intends to interpret the term ‘‘student’’
expedient way. The Department has in courses not applied towards a recognized
in the same way throughout section 18004, but did placed a high priority on getting credential, enrolled only in English as a Second
Language programs or Continuing Education Units,
not have data available on the number of assistance to institutions and auditing classes only, participating residents or
individuals enrolled at each institution who are or individuals as quickly and efficiently as
could be eligible for title IV aid, so the Department interns in a medical doctor practice program after
had to use a different measure based on available possible in light of the national receiving their degree, studying abroad at a foreign
data. As between the available options, the emergency and the immediate needs university, enrolled in a branch campus in a foreign
Department believed that using a broader number resulting therefrom, and the use of an country, or participating in Experimental Sites.
5 For the rest of students, qualification can be
for part of the baseline in establishing each existing standard here achieves that
institution’s share under 18004(a)(1) made sense confirmed by the method described in the May 1,
because funds used toward the first allowed same important goal. The title IV 2015 Dear Colleague Letter, entitled ‘‘Citizenship
purpose in 18004(c) (to cover any costs associated eligibility standard has already been and Immigration Status Documentation’’ (DCL ID:
with significant changes to the delivery of specified in great detail by the GEN–15–08), the Federal Student Aid Handbook
khammond on DSKJM1Z7X2PROD with RULES
instruction due to the coronavirus) apply to the (https://ifap.ed.gov/sites/default/files/attachments/
Department in its practice and its 2019-08/1920FSAHbkVol1Ch2.pdf), or by
entire institution regardless of the definition of
‘‘student.’’ The Department also deemed it more communications with institutions with employing the electronic document submission
important to move expeditiously to calculate the flexibilities provided in the Department’s April 3,
HEERF allocation despite the acknowledged 3 See, e.g., Mike Baker, Feds Suspect Vast Fraud 2020, ‘‘UPDATED Guidance for Interruptions of
‘‘limitations of th[e] data,’’ rather than stopping the Network Is Targeting U.S. Unemployment Systems, Study Related to COVID–19’’ (https://ifap.ed.gov/
HEERF process in order to gather additional data New York Times, www.nytimes.com/2020/05/16/ sites/default/files/attachments/2020-04/040320
solely for purposes of calculating the HEERF us/coronavirus-unemployment-fraud-secret-service- UPDATEDGuidanceInterruptStudyRelCOVID19
allocation. washington.html (last visited May 19, 2020). Attach.pdf).
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
36498 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations
standard to enroll as students, and it absence of this interim final rule, the comment rulemaking is not practicable
could incentivize institutions to take terms defined herein will remain or in the public interest in this case.
advantage of this dynamic to further undefined and indefinite, and the The master calendar requirement in
their bottom lines. If a broad definition potential for waste, fraud, and abuse section 482 of the HEA likewise does
of ‘‘student’’ were employed for described above will not have been not apply to this rule, because the rule
purposes of emergency financial aid unaddressed in any legally binding does not relate to the delivery of student
grants to students, unscrupulous manner.6 aid funds under title IV.
institutions could create cheap classes Under the Administrative Procedure
and programming that provides little or Act (APA) (5 U.S.C. 553), the Additionally, the APA generally
no educational value and then use the Department generally offers interested requires that regulations be published at
HEERF grant funding to incentivize parties the opportunity to comment on least 30 days before their effective date,
individuals not qualified under title IV proposed rules. However, the APA except as otherwise provided by the
to enroll as paying students in those provides that an agency is not required agency for good cause found and
classes and programs, thereby qualifying to conduct notice and comment published with the rule (5 U.S.C.
for a grant. Alternatively, institutions rulemaking when the agency, for good 553(d)(3)). As described above, good
could use the HEERF grant funding to cause, finds that notice and public cause exists for this rule to be effective
incentivize the re-enrollment of comment thereon are impracticable, upon publication in light of the current
students cannot maintain Satisfactory unnecessary, or contrary to the public national emergency and the importance
Academic Progress (SAP) due to reasons interest (5 U.S.C. 553(b)(B)). In light of of institutions properly distributing the
beyond the qualifying emergency, solely the current national emergency and the HEERF allocations via emergency
for the purpose of increasing revenues importance of institutions properly financial aid grants to students to help
via the tuition such students would pay. distributing the HEERF allocations via with their expenses related to the
Without restriction, institutions could emergency financial aid grants to disruption of campus operations due to
also use HEERF funds for students who students to help with their expenses COVID–19. The CRA requires a major
are enrolled at the institution but do not related to the disruption of campus rule may take effect no sooner than 60
intend to receive a degree or certificate, operations due to COVID–19 as quickly calendar days after an agency submits a
thereby diverting funds from students as possible, the normal rulemaking CRA report to Congress or the rule is
who are pursuing a degree or certificate process would be impracticable and published in the Federal Register,
in an eligible program. contrary to the public interest, so good whichever is later. 5 U.S.C. 801(a)(3)(A).
Instead, interpreting ‘‘student’’ to cause exists for waiving the notice and However, the CRA creates limited
track title IV eligibility for purposes of comment requirements of the APA. exceptions to this requirement. See id.
emergency financial aid grants to Although the Department has issued § 801(c); § 808. An agency may invoke
students will ensure that institutions are guidance to this effect already, that the ‘‘good cause’’ exception under
only providing funds to students who guidance is not legally binding, the section 808(2) in the case of rules for
are enrolled in an eligible program at an Department understands that certain which the agency has found ‘‘good
institution and are maintaining SAP in institutions have refrained from cause’’ under the APA,
their program, among other distributing some or all of their HEERF section 553(b)(B), to issue the rule
requirements. Each of these funds until a final rule is issued without providing the public with an
requirements exists because it focuses clarifying this point in a legally binding advance opportunity to comment. As
the use of Federal resources on valuable manner. stated above the Department has found
educational activities and excludes The Department is not required to good cause to issue this rule without
areas that are more open to waste, fraud, conduct negotiated rulemaking for this notice and comment rulemaking and
and abuse. This approach will thereby rule. The requirement in HEA section thus we are not including the 60-day
allow the Department to reduce the 492 that requires the Department to delayed effective date in this rule.
likelihood and amount of waste, fraud, obtain public involvement in the
and abuse in the administration of the development of proposed regulations for Executive Orders 12866, 13563, and
HEERF allocations under the CARES title IV of the HEA does not apply to 13771
Act. this final rule, because it implements Regulatory Impact Analysis
Waiver of Notice and Comment the CARES Act, not title IV. Moreover,
Rulemaking, Negotiated Rulemaking, even if it did apply, section 492(b)(2) of Under Executive Order 12866, it must
and Delayed Effective Date Under the the HEA provides that negotiated be determined whether this regulatory
Administrative Procedure Act rulemaking may be waived for good action is ‘‘significant’’ and, therefore,
The Department believes its interim cause when doing so would be subject to the requirements of the
final rulemaking authority must be ‘‘impracticable, unnecessary, or contrary Executive order and subject to review by
narrowly construed and exercised only to the public interest.’’ Section 492(b)(2) the Office of Management and Budget
when there is a sound basis for doing so. of the HEA also requires the Secretary (OMB). Section 3(f) of Executive Order
However, Congress enacted the CARES to publish the basis for waiving 12866 defines a ‘‘significant regulatory
Act to help Americans cope with the negotiations in the Federal Register at action’’ as an action likely to result in
urgent economic and health crises the same time as the regulations in a rule that may—
created by the COVID–19 outbreak and question are first published. Even if (1) Have an annual effect on the
created the HEERF to provide section 492 applied to this rule, good economy of $100 million or more, or
khammond on DSKJM1Z7X2PROD with RULES
emergency financial aid grants to cause would exist to waive the adversely affect a sector of the economy,
students. In light of the urgent economic negotiated rulemaking requirement, productivity, competition, jobs, the
challenges facing many students as a since, as explained above, notice and environment, public health or safety, or
result of the crisis, the Department has 6 Nor will the Department enforce the title IV
State, local, or Tribal governments or
determined that there is good cause for eligibility interpretation announced in this rule
communities in a material way (also
interim final rulemaking and that such against distribution of HEERF funds that occurred referred to as an ‘‘economically
action is in the public interest. In the prior to the publication of this rule. significant’’ rule);
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations 36499
(2) Create serious inconsistency or Executive Order 13563 also requires related expenses the funds are intended
otherwise interfere with an action taken an agency ‘‘to use the best available to alleviate.
or planned by another agency; techniques to quantify anticipated
(3) Materially alter the budgetary Costs, Benefits, and Transfers
present and future benefits and costs as
impacts of entitlement grants, user fees, accurately as possible.’’ The Office of The emergency financial aid grants
or loan programs or the rights and Information and Regulatory Affairs of under section 18004 of the CARES Act
obligations of recipients thereof; or OMB has emphasized that these are intended to assist eligible students
(4) Raise novel legal or policy issues techniques may include ‘‘identifying with expenses related to the disruption
arising out of legal mandates, the changing future compliance costs that of campus activities. In accordance with
President’s priorities, or the principles might result from technological OMB Circular A–4, we are evaluating
stated in the Executive order. innovation or anticipated behavioral the costs and benefits of the IFR
OMB has determined that this changes.’’ compared to a pre-statutory baseline.
regulatory action is a significant We are issuing this interim final rule This IFR defines which students are
regulatory action subject to review by only on a reasoned determination that eligible for the grants but does not
OMB under section 3(f) of Executive its benefits would justify its costs. In change the amount available or the
Order 12866. choosing among alternative regulatory allocation formula for providing the
Under Executive Order 13771, for approaches, we selected those funds to institutions. The amount of
each new regulation that the approaches that would maximize net transfers available to eligible students in
Department proposes for notice and benefits. Based on the analysis that 2020 is a minimum of $6.25 billion and
comment or otherwise promulgates that follows, the Department believes that up to $12.5 billion, depending on the
is a significant regulatory action under these regulations are consistent with the amount institutions retain for
Executive Order 12866 and that imposes principles in Executive Order 13563. institutional expenses. We have not
total costs greater than zero, it must We have also determined that this discounted or annualized this amount
identify two deregulatory actions. For regulatory action would not unduly because it is meant to be disbursed to
FY 2020, any new incremental costs interfere with State, local, and Tribal students as efficiently as possible in the
associated with a new regulation must governments in the exercise of their current year.
be fully offset by the elimination of governmental functions. As described in this preamble, the
existing costs through deregulatory Elsewhere in this section under eligibility requirements clarified in this
actions. This rule’s designation under Paperwork Reduction Act of 1995, we final rule allow students to know if they
Executive Order 13771 will be informed identify and explain burdens are eligible to receive such funds from
by public comment. specifically associated with the their institution. Limiting eligibility to
We have also reviewed these information collection requirements. title IV-eligible students who were
regulations under Executive Order Need for Regulatory Action enrolled and making P SAP in on-
13563, which supplements and campus programs during the time of
explicitly reaffirms the principles, The Department is issuing this coronavirus-related disruptions to
structures, and definitions governing interim final rule to clarify which campus operations should allow the
regulatory review established in students are eligible for emergency grants to be targeted for the purpose
Executive Order 12866. To the extent financial aid grants under section 18004 they were established. By aligning
permitted by law, Executive Order of the CARES Act. This final rule is requirements with title-IV eligibility,7
13563 requires that an agency— meant to balance flexibility and clarify
those individuals who do not meet one
(1) Propose or adopt regulations only administration for institutions so the
or more of the title IV eligibility
upon a reasoned determination that funds can be provided to eligible
requirements will be unable to receive
their benefits justify their costs students as efficiently as possible with
HEERF grants.
(recognizing that some benefits and eligibility requirements consistent with As institutions will determine how
costs are difficult to quantify); congressional intent and designed to they will distribute funds to their
(2) Tailor its regulations to impose the prevent waste, fraud, and abuse. The
least burden on society, consistent with emergency financial aid grants are 7 An exhaustive list of student eligibility
obtaining regulatory objectives and meant to assist students with expenses requirements can be found in Section 484 of the
taking into account—among other things related to the disruption of on-campus Higher Education Act of 1965, as amended [20
activities, so this final rule is meant to U.S.C. 1091]. They are as follows (1) enroll or be
and to the extent practicable—the costs accepted for enrollment in a program leading to a
of cumulative regulations; clarify any questions about eligibility so recognized credential at an eligible IHE and not
(3) In choosing among alternative the funds can be disbursed in a timely enrolled in elementary or secondary school (2) if
regulatory approaches, select those manner. presently enrolled, be maintaining satisfactory
As detailed in the preamble of this academic progress (3) not owe a refund on a Federal
approaches that maximize net benefits student grant or be in default on any Federal
(including potential economic, IFR, in light of the current national student loan (4) submit a Statement of Educational
environmental, public health and safety, emergency and the importance of Purpose (5) are a U.S. citizen, National or eligible
and other advantages; distributive institutions distributing the HEERF noncitizen (6) not have been convicted of, or plead
allocations via emergency financial aid nolo contendere or guilty to, a crime involving
impacts; and equity); fraud in obtaining federal student aid (7) have a
(4) To the extent feasible, specify grants to students to help with their high school diploma or its equivalent (8) have a
performance objectives rather than the expenses related to the disruption of valid social security number (9) register with the
behavior or manner of compliance a campus operations due to COVID–19, Selective Service (if required) (10) not been
regulated entity must adopt; and the normal rulemaking process would convicted of any offense under any Federal or State
khammond on DSKJM1Z7X2PROD with RULES
law involving the possession or sale of a controlled
(5) Identify and assess available be impracticable and contrary to the substance for conduct that occurred during a period
alternatives to direct regulation, public interest. With the definition of of enrollment for which the student was receiving
including economic incentives—such as ‘‘student’’ in ‘‘emergency financial aid Federal student aid. For more information visit:
user fees or marketable permits—to grants to students’’ uncertain, https://uscode.house.gov/view.xhtml?req=
(title:20%20section:1091%20edition:prelim) and
encourage the desired behavior, or institutions may be reluctant to award here https://ifap.ed.gov/federal-student-aid-
provide information that enables the the full allocation for grants to students handbook/08-05-2019-2019-2020-federal-student-
public to make choices. in time to assist with the COVID–19 aid-handbook-student-eligibility.
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
36500 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations
students, the Department does not know specific to Spring 2020 enrollment but use of the percent of students whose
the exact distribution of who will does provide an indication of the programs were exclusively through
receive the grants. Table 1 shows the number of students who could receive distance education to estimate eligible
estimated pool of potential recipients as funds. The primary eligibility on-campus enrollment.
derived from IPEDS data for institutions limitations reflected in the table are the
that received an allocation. It is not exclusion of non-resident aliens and the
TABLE 1—ESTIMATED POTENTIAL GRANT RECIPIENTS BY CONTROL OF INSTITUTION
Public Private Proprietary Total
Total Enrollment 8 .................................................................... 18,527,813 4,778,403 1,053,455 24,359,671
Undergraduate .................................................................. 16,872,158 3,208,336 916,722 20,997,216
Graduate ........................................................................... 1,655,655 1,570,067 136,733 3,362,455
Non-Resident Alien .................................................................. 692,123 408,696 25,903 1,126,722
Percent All-Distance 9 .............................................................. 11.40 19.20 59.90
Estimated Potentially Eligible On-Campus Enrollment ........... 15,802,421 3,530,723 412,048 19,745,193
It will be easier for students who have choose not to fill out a FAFSA but how institutions would use their HEERF
successfully completed a FAFSA and otherwise meet the title IV eligibility allocations differently for distribution of
received a valid student aid report criteria may verify their eligibility by emergency financial aid grants to
(SAR) or institutional student completing an application designed by students in the absence of this rule.
information record (ISIR) for the 2019– the institution in which the student Students will benefit from assistance
20 or 2020–21 award years to receive an attests under the penalty of perjury to in paying additional expenses
emergency financial aid grant because meeting the requirements of section 484 associated with elements included in
they have already demonstrated their of the HEA. their cost of attendance, such as room
eligibility under title IV. While some In developing this IFR, the and board, that changed with the
students may choose not to fill out a Department considered waiving some disruption of campus activities. As
FAFSA because they have other sources title IV eligibility requirements related confirmed by the Internal Revenue
of funding for their education, others to drug offenses, fraud related to title IV Service, the relief provided under
may lack the necessary information or funds, or default. Ultimately, it was section 18004 of the CARES Act will not
familiarity with the financial aid determined that eliminating some be considered gross income, so students
process to have information in place eligibility criteria and not others would have no Federal tax consequences to
already. A number of studies have not be fair across groups of students and deter them from accepting this
examined the issue of barriers to FAFSA would not allow institutions to assistance. Students will have to work
completion including complexity and maximize the use of their existing with their institutions to access the
lack of counseling. These barriers are eligibility confirmation processes. funds according to whatever process the
particularly challenging for low-income, It is unclear how institutions will institution establishes to award the
minority, and first-generation interpret the language of the CARES Act relief. As described in the Paperwork
students.10 Another limitation that will as they continue distributing emergency Reduction Act section of this preamble,
restrict title IV eligible students’ access financial aid grants to students in the students are expected to take 263,138
to the emergency financial aid grants is absence of the clarification contained in hours for a total of $4.71 million at a
their program’s participation in title IV this rule. Some institutions may choose wage rate of $17.89 11 to apply for
aid. Some programs at title-IV eligible to continue to follow the guidance the emergency relief in 2020.
institutions, primarily shorter training Department has already issued on this Institutions are also affected by this
courses such as first responder training subject, while others may adopt their final rule. They have some flexibility in
certificate programs, do not participate. own broader definition of ‘‘student.’’ At determining how they will distribute
Students enrolled in such programs will a minimum, the Department has already the funds they were allocated for this
not be eligible for the emergency brought to the attention of institutions emergency relief. They will incur some
financial aid grants. Students who that the restrictions in 8 U.S.C. 1611 costs in setting criteria or establishing
apply with regard to the distribution of an application process for their
8 Analysis of IPEDS 2017–18 12-month
grants to non-qualifying aliens as students. We assume the distribution of
enrollment file, effy2018 available at https:// the funds can largely rely on existing
nces.ed.gov/ipeds/datacenter/DataFiles.aspx?
defined therein, so those individuals
goToReportId=7. would not qualify for such grants under processes and information involved in
9 National Center for Education Statistics, Digest any interpretation of ‘‘students.’’ On the the disbursement of other title IV aid,
of Education Statistics 2019, Table 311.15. Number other hand, within the boundaries but there will be some burden in
and percentage of students enrolled in degree- established by the terms of the CARES confirming students’ eligibility for the
granting postsecondary institutions, by distance
education participation, location of student, level of Act and other applicable statutes, emergency relief, including for students
enrollment, and control and level of institution: Fall institutions have discretion in who do not have an existing valid SAR
2017 and Fall 2018. Fall 2017 share of students distributing emergency financial aid or ISIR for the 2019–20 or 2020–21
taking exclusively distance education courses. grants to students, so even if an award years. This could involve
khammond on DSKJM1Z7X2PROD with RULES
Available at https://nces.ed.gov/programs/digest/
d19/tables/dt19_311.15.asp. institution decided to use a broad developing an application that includes
10 Owen, Laura and Westlund, Erik (2016) definition of ‘‘students’’ in the absence student attestation under the penalty of
‘‘Increasing College Opportunity: School of this rule, the institution might not
Counselors and FAFSA Completion,’’ Journal of 11 Students’ hourly rate estimated using Bureau of
exercise its discretion to award grants to
College Access: Vol. 2: Iss. 1, Article 3. Available Labor Statistics (BLS) for Sales and Related
at: http://scholarworks.wmich.edu/jca/vol2/iss1/3.
everyone who meets that broader Workers, All Other, available at: https://
Literature review discusses barriers and definition. It is therefore difficult to data.bls.gov/cgi-bin/print.pl/oes/current/oes_
interventions. estimate with any degree of certainty nat.htm. Last accessed May 20, 2020.
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations 36501
perjury to meeting the requirements of receive some revenue students may recipients with 75 percent of the
section 484 of the HEA. For students otherwise have been unable to pay at allocation based on each IHE’s share of
who knowingly misrepresent the truth this time. Table 2 summarizes the full-time equivalent (FTE) enrollment of
in their attestation, the school may take amounts to be allocated to institutions Pell Grant recipients who were not
disciplinary action against the student by sector. The full breakout of amounts enrolled exclusively in distance
or require repayment of the emergency allocated to individual institutions, education prior to the coronavirus
grant. As described in the Paperwork including the maximum that can be emergency, relative to the share of such
Reduction Act section of this preamble, allocated to institutional costs, is individuals in all institutions. The
burden on institutions is estimated to available in the Allocations for section remaining 25 percent is based on the
increase by 25,680 hours and $1,177,941 18004(a)(1) of the CARES Act institution’s share of FTE enrollment of
at a wage rate of $45.87 for document 13 on the Department’s students who were not Pell Grant
postsecondary education CARES Act website.14 These allocations recipients and who were not enrolled
administrators 12 in 2020. were made according to the formula exclusively in distance education prior
To the extent that students use their described in the Methodology for to the coronavirus emergency. This
emergency financial aid grants for Calculating Allocations document 15 on formula helps direct relief to
expenses related to elements of their the Department’s CARES Act website. institutions that serve lower income
cost of attendance provided by The allocation formula emphasizes students as part of their on-campus
institutions, those institutions will institutions’ share of Pell Grant operations.
TABLE 2—SUMMARY OF HEERF ALLOCATIONS
Sum of minimum
allocation to be
awarded for
Row labels Sum of total allocation emergency
financial aid
grants to students
Private Non-Profit <2 Yrs ................................................................................................................ 11,121,217 5,560,619
Private Non-Profit 2–3 Yrs ............................................................................................................... 31,469,853 15,734,951
Private Non-Profit 4 Yrs or More ..................................................................................................... 2,441,436,384 1,220,718,556
Proprietary <2 Yrs ........................................................................................................................... 314,169,982 157,085,261
Proprietary 2–3 Yrs .......................................................................................................................... 415,718,070 207,859,135
Proprietary 4 Yrs or More ................................................................................................................ 388,802,168 194,401,134
Public <2 Yrs ................................................................................................................................... 40,318,527 20,159,318
Public 2–3 Yrs ................................................................................................................................. 2,655,311,849 1,327,656,148
Public 4 Yrs or More ........................................................................................................................ 6,208,906,453 3,104,453,411
Grand Total ............................................................................................................................... 12,507,254,503 6,253,628,533
Net Budget Impact described in the Costs, Benefits, and default/files/omb/assets/omb/circulars/
Transfers section related to institutions, a004/a-4.pdf), in the following table we
We estimate that the definition of
allocations have been determined and have prepared an accounting statement
student eligibility for the emergency
$11.1 billion of the funding has been showing the classification of the
financial aid grants to students will not
disbursed to institutions already, with impacts associated with the provisions
have an impact on the Federal budget.
$50 million held in reserve to account of these final regulations in 2020, using
The CARES Act provided a maximum of
for data limitations in allocating the 3% and 7% discount rates. This table
$12.5 billion, with a minimum of $6.25
initial amounts to eligible institutions. provides our best estimate of the
billion required to be spent on
We anticipate that $12.5 billion will changes in monetized transfers in 2020
emergency financial aid grants to
ultimately be disbursed in 2020, and as a result of these final regulations. We
students and not spent on institutional
therefore estimate $12.5 billion in note that transfers below flow from the
expenses. The final rule does not impact
transfers in 2020 relative to a pre- Federal Government to eligible students
the Federal budget because it clarifies
statutory baseline.
which students are eligible to receive and are processed through institutions.
emergency relief provided by the Accounting Statement
CARES Act but do not change the
As required by OMB Circular A–4
amount available for such grants. As
(available at www.whitehouse.gov/sites/
khammond on DSKJM1Z7X2PROD with RULES
12 Based on BLS 2019 median hourly wage rate education-administrators.htm. Last accessed May 14 www2.ed.gov/about/offices/list/ope/
for postsecondary education administrators in the 20, 2020. caresact.html.
15 Available at www2.ed.gov/about/offices/list/
BLS Occupational Outlook Handbook. Available at 13 Available at www2.ed.gov/about/offices/list/
www.bls.gov/ooh/management/postsecondary- ope/allocationstableinstitutionalportion.pdf. ope/
heerf90percentformulaallocationexplanation.pdf.
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
36502 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations
TABLE 3—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED IMPACTS IN 2020
[In millions]
Category Benefits
Assistance may support students continuing in their programs ............................................................................. Not Quantified
Costs
Paperwork burden on institutions to administer funds and on students to apply ................................................... 7% 3%
$5.9 $5.9
Category .................................................................................................................................................................. Transfers
Relief for eligible students and institutions to help with additional expenses due to disruption of campus activi-
ties ........................................................................................................................................................................ 7% 3%
$12,500 $12,500
Regulatory Flexibility Act Certification governmental jurisdictions (that are considered to be small entities, as
The Regulatory Flexibility Act does comprised of cities, counties, towns, shown in Table 4. We described this
not apply to this rulemaking because townships, villages, school districts, or size classification in the NPRM
there is good cause to waive notice and special districts), with a population of published in the Federal Register on
comment under the Administrative less than 50,000. July 31, 2018 for the proposed borrower
Procedure Act (5 U.S.C. 553). However, as noted in several of the defense rule (83 FR 37242, 37302). The
The Secretary certifies that this final Department’s recent regulations, we Department discussed the proposed
rule will not have a significant believe that an enrollment-based standard with the Chief Counsel for
economic impact on a substantial standard for small entity status is more Advocacy of the Small Business
number of small entities. The U.S. Small applicable to institutions of higher Administration, and while no change
Business Administration Size Standards education. The Department recently has been finalized, the Department
define ‘‘small entities’’ as for-profit or proposed a size classification based on continues to believe this approach better
nonprofit institutions with total annual enrollment using IPEDS data that reflects a common basis for determining
revenue below $7,000,000 or, if they are established the percentage of size categories that is linked to the
institutions controlled by small institutions in various sectors provision of educational services.
TABLE 4—SMALL ENTITIES UNDER ENROLLMENT BASED DEFINITION
Level Type Small Total Percent
2-year .............................................................. Public .............................................................. 342 1,240 28
2-year .............................................................. Private ............................................................ 219 259 85
2-year .............................................................. Proprietary ...................................................... 2,147 2,463 87
4-year .............................................................. Public .............................................................. 64 759 8
4-year .............................................................. Private ............................................................ 799 1,672 48
4-year .............................................................. Proprietary ...................................................... 425 558 76
Total ......................................................... ......................................................................... 3,996 6,951 57
This rule will benefit those small entities will benefit from those administrators to administer the
institutions of higher education that are revenues. They will also have to distribution of the relief.
small entities by allowing them to use establish a process for determining Table 5 shows the allocations of funds
a familiar existing eligibility framework which of their students should receive to small entities by sector, with any
to determine who should receive and disburse the funds accordingly. We institution for which there was no small
emergency financial aid grants under expect that the 2,586 estimated small business indicator available considered
HEERF. As described in the Regulatory entities allocated funds for this purpose
Impact Analysis, institutions may a small entity. As for all institutions, the
under the CARES Act will spend a total allocations of funds to specific small
benefit from applying no more than 50 of 5,172 hours totaling $237,240 at a
percent of their allocation of HEERF institutions is available on the
wage rate of $45.87 11 for postsecondary Department’s CARES website.12
funds to institutional costs, so some
TABLE 5—SUMMARY OF ALLOCATIONS TO SMALL ENTITIES BY SECTOR
khammond on DSKJM1Z7X2PROD with RULES
Sum of minimum
allocation to be
Sum of total
Sector awarded for emer-
allocation gency financial aid
grants to students
Private Non-Profit <2 Yrs ............................................................................................................................ 8,274,977 4,137,498
Private Non-Profit 2–3 Yrs ........................................................................................................................... 20,417,294 10,208,669
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations 36503
TABLE 5—SUMMARY OF ALLOCATIONS TO SMALL ENTITIES BY SECTOR—Continued
Sum of minimum
allocation to be
Sum of total
Sector awarded for emer-
allocation gency financial aid
grants to students
Private Non-Profit 4 Yrs or More ................................................................................................................. 266,608,121 133,304,213
Proprietary <2 Yrs ....................................................................................................................................... 239,330,457 119,665,488
Proprietary 2–3 Yrs ...................................................................................................................................... 177,306,399 88,653,273
Proprietary 4 Yrs or More ............................................................................................................................ 84,269,294 42,134,681
Public <2 Yrs ............................................................................................................................................... 29,196,455 14,598,279
Public 2–3 Yrs ............................................................................................................................................. 28,278,395 14,139,221
Public 4 Yrs or More .................................................................................................................................... 56,909,101 28,454,561
Grand Total ........................................................................................................................................... 910,590,493 455,295,883
As institutions control the Department’s interpretation of receiving an allocation of funds is
distribution of the funds to eligible ‘‘student,’’ meaning a person who is 25,680 hours (5,136 institutions × 5
students and have flexibility to establish eligible under section 484 of the HEA to hours).
a process suitable to their receive title IV aid, as suggested by the Using the unique number of title IV
circumstances, no alternatives were references to title IV in the context of aid recipients 10,319,154 (both Federal
considered specifically for small section 18004. grant and Federal student loan) for the
entities. We believe that most institutions will Award Year 2019–2020 we estimate that
Paperwork Reduction Act of 1995 expand their current financial aid 15 percent, or 1,547,873, of those
As part of its continuing effort to appeals process and utilize that recipients will request additional aid
reduce paperwork and respondent framework to receive requests for from their institution based on changed
burden, the Department provides the COVID–19 assistance from eligible circumstances due to the coronavirus.
general public and Federal agencies students. We estimate that each We estimate approximately 20 minutes
with an opportunity to comment on institution that received an allocation per students to complete the request for
proposed and continuing collections of would require five hours to set up any additional aid for a total new burden of
information, in accordance with the new form for students to complete and 510,798 hours (.33 hours × 1,547,873).
Paperwork Reduction Act of 1995 (PRA) establish review and recordkeeping
procedures to be able to comply with This is a new information collection
(44 U.S.C. 3506(c)(2)(A)). This helps
ensure that: The public understands the the separate reporting requirements in with a total burden assessment of
Department’s collection instructions, the Certification and Agreement 536,478 hours for 1,553,009 respondents
respondents can provide the requested between the institutions and the with a single response. The Department
data in the desired format, reporting Secretary. The estimated burden for the has requested an emergency clearance to
burden (time and financial resources) is 1,651 private institutions is 8,255 hours allow for the immediate collection of
minimized, collection instruments are (1,651 × 5 hours). The estimated burden this information. The public will be
clearly understood, and the Department for the 1,641 proprietary institutions is provided the ability to comment on the
can properly assess the impact of 8,205 hours (1,641 × 5 hours). The proposed burden assessment through
collection requirements on respondents. estimated burden for the 1,844 public the standard information collection
In determining eligibility for these institutions is 9,220 (1,844 × 5 hours). process with notice requesting comment
funds, IHEs are being directed to use the The total new burden to all institutions being published in the Federal Register.
1840–NEW—ELIGIBILITY OF STUDENTS AT INSTITUTIONS OF HIGHER EDUCATION FOR FUNDS UNDER THE CARES ACT
Estimate
costs
Number of Number of Hours per Total student
Affected entity respondents responses response burden $17.89
institutions
$45.87
Individual Student ................................................................ 1,547,873 1,547,873 .33 510,798 $9,138,176
Private Institution ................................................................. 1,651 1,651 5 8,255 378,657
Proprietary Institution ........................................................... 1,641 1,641 5 8,205 376,363
Public Institution ................................................................... 1,844 1,844 5 9,220 422,921
Total .............................................................................. 1,553,009 1,553,009 ........................ 536,478 10,316,117
khammond on DSKJM1Z7X2PROD with RULES
Intergovernmental Review: This strengthened federalism. The Executive This document provides early
program is subject to Executive Order order relies on processes developed by notification of our specific plans and
12372 and the regulations in 34 CFR State and local governments for actions for this program.
part 79. One of the objectives of the coordination and review of proposed
Executive order is to foster an Federal financial assistance.
intergovernmental partnership and a
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
36504 Federal Register / Vol. 85, No. 117 / Wednesday, June 17, 2020 / Rules and Regulations
Federalism PART 668—STUDENT ASSISTANCE cause’’ exemption in the Administrative
GENERAL PROVISIONS Procedure Act (APA) which, upon
Executive Order 13132 requires us to finding ‘‘good cause,’’ authorizes an
ensure meaningful and timely input by ■ 1. The authority citation for part 668 agency to make an action effective
State and local elected officials in the continues to read as follows: immediately.
development of regulatory policies that
Authority: 20 U.S.C. 1001–1003, 1070a,
have federalism implications. DATES: This action is effective June 17,
1070g, 1085, 1087b, 1087d, 1087e, 1088,
‘‘Federalism implications’’ means 1091, 1092, 1094, 1099c, and 1099c–1,
2020.
substantial direct effects on the States, 1221e–3, and 3474; Pub. L. 111–256, 124 ADDRESSES: The EPA has established a
on the relationship between the Stat. 2643; unless otherwise noted. docket for this action under Docket ID
National Government and the States, or ■ 2. Section 668.2 is amended by adding No. EPA–R06–OAR–2020–0229. All
on the distribution of power and the definition ‘‘Student,’’ in alphabetical documents in the docket are listed on
responsibilities among the various order to read as follows: the http://www.regulations.gov website.
levels of government. This interim final Although listed in the index, some
regulation may have federalism § 668.2 General definitions. information is not publicly available,
implications. We encourage State and * * * * * e.g., Confidential Business Information
local elected officials to review and Student, for purposes of the phrases or other information whose disclosure is
provide comments on this interim final ‘‘grants to students’’ and ‘‘emergency restricted by statute. Certain other
regulation. financial aid grants to students’’ in material, such as copyrighted material,
Accessible Format: Individuals with sections 18004(a)(2), (a)(3), and (c) of is not placed on the internet and will be
disabilities can obtain this document in the Coronavirus Aid, Relief, and publicly available only in hard copy
an accessible format (e.g., braille, large Economic Security (CARES) Act, is form. Publicly available docket
print, audiotape, or compact disc) on defined as an individual who is, or materials are available electronically
request to the person listed under FOR could be, eligible under section 484 of through http://www.regulations.gov.
FURTHER INFORMATION CONTACT. the HEA, to participate in programs
FOR FURTHER INFORMATION CONTACT: Jeff
Electronic Access to This Document: under title IV of the HEA.
Riley, 214–665–8542, riley.jeffrey@
The official version of this document is (Authority: 20 U.S.C. 1221e–3 3474) epa.gov. Out of an abundance of caution
the document published in the Federal * * * * * for members of the public and our staff,
Register. You may access the official [FR Doc. 2020–12965 Filed 6–15–20; 4:15 pm] the EPA Region 6 office may be closed
edition of the Federal Register and the BILLING CODE 4000–01–P to the public to reduce the risk of
Code of Federal Regulations at transmitting COVID–19. Please call or
www.govinfo.gov. At this site you can email the contact listed above if you
view this document, as well as all other need alternative access to material
documents of this Department ENVIRONMENTAL PROTECTION
AGENCY indexed but not provided in the docket.
published in the Federal Register, in
text or portable document format PDF. SUPPLEMENTARY INFORMATION: Under
40 CFR Part 52 Clean Air Act (CAA) section 176(c)(8),
To use PDF, you must have Adobe
Acrobat Reader, which is available for [EPA–R06–OAR–2020–0229; FRL 10009–40– States are allowed to substitute TCMs in
free on the site. Region 6] approved SIPs for replacement TCMs
You may also access documents of the which achieve equivalent or greater
Air Plan Approval; Texas; Approval of emissions reductions without having to
Department published in the Federal
Substitution for Dallas-Fort Worth Area undertake the standard SIP revision
Register by using the article search
Transportation Control Measures process.1 The DFW area metropolitan
feature at www.federalregister.gov.
Specifically, through the advanced AGENCY: Environmental Protection
planning organization, the North Central
search feature at this site, you can limit Agency (EPA). Texas Council of Governments
your search to documents published by (NCTCOG),2 identified for substitution
ACTION: Final rule; notice of
the Department. three TCMs originally approved as
administrative change. High-Occupancy Vehicle (HOV) lanes
List of Subjects in 34 CFR Part 668 SUMMARY: The Environmental Protection into the DFW SIP as follows:
Administrative practice and Agency (EPA) is making an
1 The Safe, Accountable, Flexible, Efficient
procedure, Aliens, Colleges and administrative change to update the
Transportation Equity Act: A Legacy for Users
universities, Consumer protection, Code of Federal Regulations (CFR) to (SAFETEA–LU) transportation funding and
Grant programs—education, Loan reflect a change made to the Texas State authorization bill, which was signed into law on
programs—education, Reporting and Implementation Plan (SIP) on February August 10, 2005, revised the CAA’s section 176(c)
recordkeeping requirements, Selective 21, 2020, as a result of EPA’s transportation conformity provisions to allow states
concurrence on substitute transportation to substitute or add TCMs into approved SIPs
Service System, Student aid, Vocational without the standard SIP revision process. These
education. control measures (TCMs) for the Dallas- revisions facilitate compliance with the
Fort Worth (DFW) 8-hour ozone transportation conformity rule’s requirements for
Betsy DeVos, nonattainment area portion of the Texas timely implementation of TCMs (40 CFR 93.113) by
Secretary of Education. SIP. EPA has determined that the expediting the TCM substitution process.
khammond on DSKJM1Z7X2PROD with RULES
2 As the Metropolitan Planning Organization for
For the reasons discussed in the substitution of the TCMs is consistent
the DFW area, NCTCOG is delegated authority
preamble, the Secretary amends title 34 with the Clean Air Act and EPA’s under 30 Texas Administrative Code § 114.270 to
of the Code of Federal Regulations as national guidance on such substitutions, implement SIP-approved TCMs for the DFW ozone
follows: and therefore falls within the ‘‘good nonattainment area.
VerDate Sep<11>2014 17:27 Jun 16, 2020 Jkt 250001 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 E:\FR\FM\17JNR1.SGM 17JNR1
File and source
- File
- FR-2020-06-17_2020-12965.pdf
- Size
- 281,048 bytes
- SHA-256
- 587918fe49a26209a95a42304fdb3ad878cda4fce8b6d33d6148f4523fc8b262
- Our copy
- FR-2020-06-17_2020-12965.pdf
- Original
- www.govinfo.gov