Federal Register Vol. 86, No. 76, Thursday, April 22, 2021, Rules and Regulations (FR Doc. 2021–08379)
Summary
These pages of the Federal Register for Thursday, April 22, 2021 (Vol. 86, No. 76) carry the Department of Education’s final regulations adding 34 CFR Part 677, effective April 22, 2021, on the endowment factor used to allocate Coronavirus Response and Relief Supplemental Appropriations Act, 2021 funds to Historically Black Colleges and Universities. The Department says the statutory formula could not be applied to the nine of 97 eligible institutions that reported an endowment value of zero. New § 677.1 treats any institution with a total endowment of less than $1,000,000 as having an endowment of $1,000,000. The pages also carry the end of a Homeland Security notification limiting travel through U.S.-Mexico land ports of entry to “essential travel” and the start of interim final requirements for the ARP ESSER Fund.
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21190 Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations
and over 2.2 million confirmed cases in below. Given the definition of ‘‘essential circumstances associated with the
Mexico.6 travel’’ below, this temporary alteration specific threat.8
in land ports of entry operations should The Commissioner of U.S. Customs
Notice of Action
not interrupt legitimate trade between and Border Protection (CBP) is hereby
Given the outbreak and continued the two nations or disrupt critical directed to prepare and distribute
transmission and spread of COVID–19 supply chains that ensure food, fuel, appropriate guidance to CBP personnel
within the United States and globally, medicine, and other critical materials on the continued implementation of the
the Secretary has determined that the reach individuals on both sides of the temporary measures set forth in this
risk of continued transmission and border. Notification. The CBP Commissioner
spread of the virus associated with For purposes of the temporary may determine that other forms of
COVID–19 between the United States alteration in certain designated ports of travel, such as travel in furtherance of
and Mexico poses an ongoing ‘‘specific entry operations authorized under 19 economic stability or social order,
threat to human life or national U.S.C. 1318(b)(1)(C) and (b)(2), travel constitute ‘‘essential travel’’ under this
interests.’’ through the land ports of entry and ferry Notification. Further, the CBP
U.S. and Mexican officials have terminals along the United States- Commissioner may, on an
mutually determined that non-essential Mexico border shall be limited to individualized basis and for
travel between the United States and ‘‘essential travel,’’ which includes, but humanitarian reasons or for other
Mexico poses additional risk of is not limited to— purposes in the national interest, permit
transmission and spread of the virus • U.S. citizens and lawful permanent the processing of travelers to the United
associated with COVID–19 and places residents returning to the United States; States not engaged in ‘‘essential travel.’’
the populace of both nations at • Individuals traveling for medical
increased risk of contracting the virus purposes (e.g., to receive medical
Alejandro N. Mayorkas,
associated with COVID–19. Moreover, treatment in the United States); Secretary, U.S. Department of Homeland
given the sustained human-to-human • Individuals traveling to attend
Security.
transmission of the virus, returning to educational institutions; [FR Doc. 2021–08485 Filed 4–21–21; 8:45 am]
previous levels of travel between the • Individuals traveling to work in the BILLING CODE 9112–FP–P
two nations places the personnel United States (e.g., individuals working
staffing land ports of entry between the in the farming or agriculture industry
United States and Mexico, as well as the who must travel between the United DEPARTMENT OF EDUCATION
individuals traveling through these States and Mexico in furtherance of
ports of entry, at increased risk of such work); 34 CFR Part 677
exposure to the virus associated with • Individuals traveling for emergency RIN 1840–AD63
COVID–19. Accordingly, and consistent response and public health purposes
with the authority granted in 19 U.S.C. (e.g., government officials or emergency Calculation of the Endowment Factor
1318(b)(1)(C) and (b)(2),7 I have responders entering the United States to for Allocations to Historically Black
determined that land ports of entry support federal, state, local, tribal, or Colleges and Universities Under
along the U.S.-Mexico border will territorial government efforts to respond Section 314(a)(2)(A) of the Coronavirus
continue to suspend normal operations to COVID–19 or other emergencies); Response and Relief Supplemental
and will only allow processing for entry • Individuals engaged in lawful cross- Appropriations Act, 2021
into the United States of those travelers border trade (e.g., truck drivers
engaged in ‘‘essential travel,’’ as defined AGENCY: Office of Postsecondary
supporting the movement of cargo
Education, Department of Education.
6 Id.
between the United States and Mexico);
• Individuals engaged in official ACTION: Final regulations.
7 19 U.S.C. 1318(b)(1)(C) provides that
‘‘[n]otwithstanding any other provision of law, the government travel or diplomatic travel;
SUMMARY: The Department of Education
Secretary of the Treasury, when necessary to • Members of the U.S. Armed Forces,
respond to a national emergency declared under the (Department) issues this final rule so
and the spouses and children of
National Emergencies Act (50 U.S.C. 1601 et seq.) that it may determine final allocations
members of the U.S. Armed Forces,
or to a specific threat to human life or national to Historically Black Colleges and
interests,’’ is authorized to ‘‘[t]ake any . . . action returning to the United States; and
Universities (HBCUs) awarded under
that may be necessary to respond directly to the • Individuals engaged in military-
national emergency or specific threat.’’ On March section 314(a)(2) of the Coronavirus
related travel or operations.
1, 2003, certain functions of the Secretary of the Response and Relief Supplemental
The following travel does not fall
Treasury were transferred to the Secretary of Appropriations Act, 2021 (CRRSAA).
Homeland Security. See 6 U.S.C. 202(2), 203(1). within the definition of ‘‘essential
Under 6 U.S.C. 212(a)(1), authorities ‘‘related to travel’’ for purposes of this DATES: These regulations are effective
Customs revenue functions’’ were reserved to the Notification— April 22, 2021.
Secretary of the Treasury. To the extent that any
authority under section 1318(b)(1) was reserved to
• Individuals traveling for tourism FOR FURTHER INFORMATION CONTACT:
the Secretary of the Treasury, it has been delegated purposes (e.g., sightseeing, recreation, Karen Epps, Office of Postsecondary
to the Secretary of Homeland Security. See Treas. gambling, or attending cultural events). Education, U.S. Department of
Dep’t Order No. 100–16 (May 15, 2003), 68 FR At this time, this Notification does not Education, 400 Maryland Ave. SW,
28322 (May 23, 2003). Additionally, 19 U.S.C. Room 2B133, Washington, DC 20202.
1318(b)(2) provides that ‘‘[n]otwithstanding any
apply to air, freight rail, or sea travel
other provision of law, the Commissioner of U.S. between the United States and Mexico, Telephone: (202) 453–6337. Email:
Customs and Border Protection, when necessary to but does apply to passenger rail, Karen.Epps@ed.gov.
respond to a specific threat to human life or passenger ferry travel, and pleasure boat If you use a telecommunications
national interests, is authorized to close temporarily device for the deaf (TDD) or a text
any Customs office or port of entry or take any other
travel between the United States and
lesser action that may be necessary to respond to Mexico. These restrictions are telephone (TTY), call the Federal Relay
the specific threat.’’ Congress has vested in the temporary in nature and shall remain in
Secretary of Homeland Security the ‘‘functions of 8 DHS is working closely with counterparts in
effect until 11:59 p.m. EDT on May 21,
all officers, employees, and organizational units of Mexico and Canada to identify appropriate public
the Department,’’ including the Commissioner of
2021. This Notification may be amended health conditions to safely ease restrictions in the
CBP. 6 U.S.C. 112(a)(3). or rescinded prior to that time, based on future and support U.S. border communities.
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Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations 21191
Service (FRS), toll-free, at (800) 877– 10 percent of funds based on an inverse indicates a technical oversight in
8339. proportion of an institution’s share of developing the endowment factor.
SUPPLEMENTARY INFORMATION:
the total endowment funding at all In response to the inability to
eligible institutions. In other words, implement this formula in a manner
Background institutions with the smallest consistent with the statutory text for
The CRRSAA was enacted on endowments receive the largest share of certain eligible entities, the Department
December 27, 2020, to help Americans funds. This inverse proportion formula consulted with Congress to determine
cope with the ongoing economic and reflects the intent of Congress to direct options for calculating awards to HBCUs
health crises created by the novel additional funding to institutions under section 314(a)(2) of the CRRSAA.
coronavirus disease (COVID–19) unable to tap endowment resources to These discussions were focused on two
outbreak. Section 314 of the CRRSAA meet needs arising from the COVID–19 goals: (1) Ensuring that all eligible
authorizes supplemental awards to pandemic. Such institutions often have institutions with relatively low
institutions of higher education (IHEs) smaller enrollments or serve highly endowment values benefited from the
through the Higher Education disadvantaged populations; endowment factor, and (2) ensuring that
Emergency Relief Fund (HEERF) consequently, they have not been able to the endowment factor operated as
initially established by section 18004 of build up significant endowment funds intended, delivering significantly
the Coronavirus Aid, Relief, and over time that might have been used to greater amounts of funding to those
Economic Security (CARES) Act (March respond to the COVID–19-related institutions with the smallest
27, 2020). Section 314 of the CRRSAA disruptions to teaching and learning on endowments rather than to those
also authorizes, in paragraph (a)(2)(A), campus. institutions with the largest
additional awards to HBCUs eligible to In fact, some institutions reported an endowments. This consultation took on
receive assistance under two programs endowment value of zero, which additional urgency because of the
authorized by the Higher Education Act contributed to the circumstances possibility that additional HEERF
of 1965, as amended (HEA): The requiring this final rule. Specifically, appropriations for HBCUs would be
Strengthening HBCUs program endowment data collected by the provided on the basis of the formula in
authorized by part B of title III of the Department for the purpose of section 314(a)(2)(A) of the CRRSAA as
HEA, and the HBCU Masters program determining the allocation of funds part of the American Rescue Plan Act of
authorized by subpart 4 of part A of title through the endowment factor showed 2021 (ARP).
VII of the HEA. Section 314 further that, of 97 eligible institutions, nine Ultimately, Congress provided such
specifies, in paragraph (a)(2), the reported an endowment value of zero. additional appropriations in the ARP
amounts available for these additional While it seems clear that Congress and directed IHEs to make allocations in
awards and, in paragraph (a)(2)(A), the intended for such institutions to receive accordance with the same terms and
three-part formula for determining the the largest share of endowment factor conditions as those provided in section
allocations to each eligible HBCU. funding because of their complete lack 314 of the CRRSAA, with several
This formula calls for the allocation of endowment resources to call upon in exceptions. Of relevance here, Congress
of— responding to the COVID–19 pandemic, established a ‘‘floor’’ on the endowment
(1) 70 percent of funds according to a it is not possible to generate the value used when allocating the ARP-
ratio equivalent to the number of Pell endowment ratios described in section provided HEERF funds based on the
Grant recipients in attendance at the 314(a)(2)(A)(iii) of the CRRSAA for endowment factor. Section 2003(3) of
institution at the end of the school year these schools due to the mathematic the ARP specifies that an institution
preceding the beginning of the most principle that division by zero yields an ‘‘that has a total endowment size of less
recent fiscal year and the total number undefined result and thus has no than $1,000,000 (including an
of Pell Grant recipients at all such meaning. Therefore, it would be institution that does not have an
institutions; impossible to implement this formula in endowment) shall be treated by the
(2) 20 percent of funds according to a a manner consistent with the statutory Secretary as having a total endowment
ratio equivalent to the total number of text for certain eligible entities. size of $1,000,000’’ for the purposes of
students enrolled at the institution at Excluding these schools entirely from section 314(a)(2)(A)(iii) of the CRRSAA,
the end of the school year preceding the the endowment factor calculation would which is used to determine allocations
beginning of that fiscal year and the seem contrary to the plain language of under the ARP. However, this provision
number of students enrolled at all such the statute, as the Act does not expressly does not apply to the HEERF funds
institutions; and exclude these entities and is meant to appropriated in the CRRSAA.
(3) 10 percent of funds according to a include all eligible institutions under Consequently, the Department
ratio equivalent to the total endowment part B of title III and subpart 4 of part determined that the best course of
size at all eligible institutions at the end A of title VII of the HEA. Moreover, action would be to issue regulations on
of the school year preceding the even if the nine HBCUs with zero the endowment factor under section
beginning of that fiscal year and the endowments could be excluded from 314(a)(2). In the interim, on February
total endowment size at the institution. the formula, there is a large enough gap 26, 2021, the Department awarded 90
The first two elements for between the institution with the lowest percent of the funds provided to HBCUs
determining allocations to HBCUs under non-zero endowment and other under section 314(a)(2) of the
section 314(a)(2)(A) of the CRRSAA institutions with non-zero endowments CRRSAA—the funds allocated on the
reflect a familiar and straightforward that the institution with the lowest non- basis of factors 1 and 2 of the formula
methodology: Institutions receive a zero endowment would garner nearly all in section 314(a)(2)(A).
share of funds commensurate with their of the program funding ($72.8 million) In considering alternatives for refining
respective shares of Pell Grant allocable through the endowment factor. the methodology for implementing the
recipients and total overall enrollment The Department does not believe such endowment factor, the Department
at all eligible institutions. However, the an inequitable outcome would be relied on analyses of options developed
third element, also known as the consistent with the design of the both prior to and during consultation
endowment factor, calls for allocating endowment factor formula; rather, it with Congress regarding the challenges
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21192 Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations
presented by the endowment factor endowment factor—effectively factor that allocates 10 percent of the
under the CRRSAA. increasing its endowment-based available funding according to a ratio
We considered exclusion of the nine resources to $3,100,000—while another equivalent to the total endowment size
entities that reported an endowment institution with a reported endowment at all eligible institutions at the end of
position of zero. As stated above, we of $1,000,000 received $500,000 from the school year preceding the beginning
determined this was inconsistent with the endowment factor, effectively of that fiscal year and the total
the plain language of the statute. ending up with just half ($1,500,000) of endowment size at the institution.
Further, it would exclude the the endowment-based resources as the Current Regulation: None.
institutions with the greatest need—i.e., first institution. In other words, no New Regulation: In new § 677.1, we
those institutions reporting endowment institution’s allocation from the provide that, for the purpose of
amounts of zero—while allocating endowment factor should exceed the calculating allocations under section
virtually all funds apportioned to the resources available to any other 314(a)(2)(A)(iii) of the CRRSAA, an
endowment factor to just two of the 88 institution based on the sum of its institution that has a total endowment
eligible institutions with non-zero allocation from the endowment factor of less than $1,000,000, including an
endowments. Such an outcome would and its reported endowment. The institution that does not have an
be contrary to the purpose of any Department’s preliminary modeling of endowment, will be treated by the
funding formula based on an option based on this principle Secretary as having an endowment of
proportionality, which is to provide produced an appropriately graduated $1,000,000.
benefits to all eligible entities in distribution of endowment factor Reasons: The Department is making
proportion to one or more allocations to all 97 institutions, while this regulatory change to remedy a
characteristics of those entities, and not directing 72 percent of funds to the technical defect in the statute; allocate
to merely direct all or nearly all bottom quartile of institutions ranked by funds consistent with its best
applicable funding to a few such endowment size, a result that the interpretation of the statutory purpose
entities. Department deemed both equitable and of the endowment factor; make the
Given that we cannot implement the consistent with the core purpose of the allocation methodology related to
formula in a manner consistent with the endowment factor. endowment size under the CRRSAA
statutory text for certain eligible entities, Importantly, for the purposes of this consistent with the refined methodology
we considered a variety of approaches. final rule, the $1,000,000 floor under the ARP; and ensure that the
A rule that imputed a small dollar endowment amount set by Congress for endowment factor operates to equitably
amount to the nine eligible institutions use in calculating endowment factor deliver funding to eligible institutions
reporting zero endowment funding, allocations under the ARP yields an based on the relative size of their
such as $1, would result in the equitable distribution of funds nearly endowments. See the Background
allocation of nearly all funding to those identical to that of the Department’s section for a more detailed discussion of
institutions, effectively preventing the ‘‘imputed endowment size’’ model. our reasons for this regulatory change.
accrual of any benefits from the Specifically, applying the ARP’s Waiver of Proposed Rulemaking and
endowment factor to any other eligible $1,000,000 endowment floor to the Delayed Effective Date Under the
institutions (approximately $8.1 million endowment factor in the CRRSAA Administrative Procedure Act
would be awarded to each of the nine would allocate $54.3 million, or 75
institutions with zero endowments and percent of funds, to the bottom quartile Under the Administrative Procedure
a balance of less than $1,500 would be of institutions ranked by endowment Act (APA) (5 U.S.C. 553), the
distributed among the remaining size. Department generally offers interested
eligible institutions). Again, such an Consequently, the Department has parties the opportunity to comment on
outcome would not, in the Department’s concluded that the equitable impact of proposed rules. However, the APA
view, be consistent with the basic equity the $1,000,000 floor endowment provides that an agency is not required
principles that generally underlie the threshold adopted by Congress for the to conduct notice and comment
funding formulas enacted by Congress purpose of calculating endowment rulemaking when the agency, for good
for the many formula grant programs factor allocations under the ARP, cause, finds that notice and public
administered by the Department. combined with its simplicity and the comment thereon are impracticable,
The Department also explored an benefits of a uniform approach to unnecessary, or contrary to the public
option that considered the relationship determining endowment factor interest (5 U.S.C. 553(b)(B)).
between the amount institutions receive allocations across the ARP and the Congress enacted the CRRSAA to help
through the endowment factor and the CRRSAA, make that same $1,000,000 Americans cope with the urgent
sum of that value in combination with endowment floor the most appropriate economic and health crises created by
the institution’s reported (or imputed, in manner to implement the endowment the COVID–19 outbreak and created the
the case of the institutions reporting $0 factor formula in section HEERF to provide emergency financial
endowments) endowment. The 314(a)(2)(A)(iii) of the CRRSAA, which aid grants to students and institutions.
underlying principle of this approach cannot otherwise be implemented in a Section 314(b)(2)(B) of the CRRSAA
was that while the endowment factor manner consistent with the statutory requires the Secretary, to the extent
was to direct additional funding to text for certain eligible entities. practicable, to make awards to HBCUs
institutions with the smallest under section 314(a)(2) by February 25,
endowments, such institutions should Significant Regulations 2021. In the absence of this final rule,
not benefit disproportionately when Statute: Section 314 of the CRRSAA the Department would be unable to
compared to other institutions with (division M of Public Law 116–260, timely award the final 10 percent of
small endowments. For example, it December 27, 2020) provides for funds appropriated by Congress to
would be both inequitable and funding for eligible HBCUs. HBCUs under section 314(a)(2) of the
inconsistent with the design of the Specifically, section 314(a)(2)(A) CRRSAA in a manner that equitably
endowment factor if an institution with specifies a three-part formula for benefits those HBCUs with limited
a reported endowment of $100,000 determining the allocations to each endowments serving large numbers or
received $3,000,000 from the eligible HBCU, including an endowment percentages of students from low-
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Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations 21193
income families. In light of the urgent Regulatory Affairs designated this rule Need for Regulatory Action
economic challenges facing IHEs as a as not a ‘‘major rule’’, as defined by 5 The Department is issuing this final
result of the current national emergency U.S.C. 804(2). rule to clarify the methodology for
and the importance of awarding all We have also reviewed these calculating allocations to HBCUs in
available emergency funds appropriated regulations under Executive Order accordance with the endowment factor
by Congress as quickly as possible, 13563, which supplements and described in section 314(a)(2)(A)(iii) of
particularly to those institutions explicitly reaffirms the principles, the CRRSAA. The endowment factor is
without access to much-needed structures, and definitions governing intended to provide additional funding
resources that can help address the regulatory review established in to institutions with limited endowment
disruption to teaching and learning Executive Order 12866. To the extent resources available to address
caused by the COVID–19 pandemic, it permitted by law, Executive Order institutional and student needs arising
would be impracticable and contrary to 13563 requires that an agency— from the COVID–19 pandemic. This
the public interest to conduct notice- (1) Propose or adopt regulations only final rule addresses a defect in the
and-comment rulemaking. Accordingly, upon a reasoned determination that statutory allocation formula and permits
there is good cause to waive the notice their benefits justify their costs the allocation of all available funds to
and comment requirements of the APA. (recognizing that some benefits and eligible institutions as quickly as
Moreover, the APA generally requires costs are difficult to quantify); possible.
that regulations be published at least 30 (2) Tailor its regulations to impose the As detailed in the preamble of this
days before their effective date, unless least burden on society, consistent with final rule, in light of the current national
the agency has good cause to implement obtaining regulatory objectives and emergency and the importance of
its regulations sooner (5 U.S.C. taking into account—among other things delivering HEERF awards to institutions
553(d)(3)). As described above, good and to the extent practicable—the costs as soon as possible, notice-and-
cause exists for this rule to be effective of cumulative regulations; comment rulemaking would be
upon publication in light of the current (3) In choosing among alternative impracticable and contrary to the public
national emergency and the importance regulatory approaches, select those interest. Absent immediate
of awarding HEERF allocations to approaches that maximize net benefits implementation of this final rule, the
eligible institutions in a timely manner (including potential economic, Department would be unable to timely
consistent with statutory intent. environmental, public health and safety, award the remaining HBCU funding in
Executive Orders 12866 and 13563 and other advantages; distributive a manner consistent with the intent to
impacts; and equity); provide funding to eligible HBCUs
Regulatory Impact Analysis (4) To the extent feasible, specify based on relative endowment size, with
Under Executive Order 12866, the performance objectives rather than the a potentially serious negative impact on
Office of Management and Budget behavior or manner of compliance a both institutions and the students they
(OMB) must determine whether this regulated entity must adopt; and serve.
regulatory action is ‘‘significant’’ and, (5) Identify and assess available
therefore, subject to the requirements of alternatives to direct regulation, Costs, Benefits, and Transfers
the Executive order and subject to including economic incentives—such as As noted elsewhere in this final rule,
review by OMB. Section 3(f) of user fees or marketable permits—to this regulatory change affects only the
Executive Order 12866 defines a encourage the desired behavior, or allocation of funding under the HEERF
‘‘significant regulatory action’’ as an provide information that enables the program. It does not impose or relieve
action likely to result in a rule that public to make choices. any regulatory or compliance burden on
may— Executive Order 13563 also requires regulated entities. In general, we do not
(1) Have an annual effect on the an agency ‘‘to use the best available anticipate this final rule to impose any
economy of $100 million or more, or techniques to quantify anticipated net costs on affected entities. However,
adversely affect a sector of the economy, present and future benefits and costs as to the extent that the receipt of funding
productivity, competition, jobs, the accurately as possible.’’ The Office of under this program affects the marginal
environment, public health or safety, or Information and Regulatory Affairs of cost of administering funds, there may
State, local, or Tribal governments or OMB has emphasized that these be some effects on participating
communities in a material way (also techniques may include ‘‘identifying institutions, but given the overall
referred to as an ‘‘economically changing future compliance costs that amount of funding administered under
significant’’ rule); might result from technological this program and the relatively small
(2) Create serious inconsistency or innovation or anticipated behavioral amount implicated by this rule, we
otherwise interfere with an action taken changes.’’ expect those effects to be de minimis.
or planned by another agency; We are issuing this final rule only on As noted above, this final rule will
(3) Materially alter the budgetary a reasoned determination that its allow the Department to operationalize
impacts of entitlement grants, user fees, benefits would justify its costs. In the statutory requirements of the
or loan programs or the rights and choosing among alternative regulatory CRRSAA relative to the endowment
obligations of recipients thereof; or approaches, we selected those factor and limit unintended
(4) Raise novel legal or policy issues approaches that would maximize net consequences. Since this rule is only
arising out of legal mandates, the benefits. Based on the analysis that intended to implement existing
President’s priorities, or the principles follows, the Department believes that statutory requirements, we assess the
stated in the Executive order. these regulations are consistent with the impacts of this final rule relative to a
This final regulatory action is a principles in Executive Order 13563. pre-statutory baseline. In the absence of
significant regulatory action subject to We have also determined that this passage of the CRRSAA, none of the
review by OMB under section 3(f) of regulatory action would not unduly affected entities would have received
Executive Order 12866. Pursuant to the interfere with State, local, and Tribal additional funding under the HEERF
Congressional Review Act (5 U.S.C. 801 governments in the exercise of their program. Passage of CRRSAA resulted
et seq.), the Office of Information and governmental functions. in additional funds being made
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21194 Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations
available to these entities. Specific to Under this final rule, all 97 eligible This document provides early
this final rule, approximately $72.8 entities would receive funding, with the notification of our specific plans and
million in additional funds will be smallest allocation being approximately actions for this program.
made available to affected entities $7,300. We believe that this final rule,
through the endowment factor which ensures that all entities receive at Assessment of Educational Impact
implicated by this final rule. As noted least some funding under the Based on our own review, we have
above, we do not anticipate this rule endowment factor while also heavily determined that these final regulations
resulting in any increased regulatory preferencing those entities with small or
do not require transmission of
burden for affected entities and, even if no endowments, best meets the
the additional funding provided under information that any other agency or
statutory intent.
the endowment factor did result in such authority of the United States gathers or
increased costs, those costs would be far Regulatory Flexibility Act Certification makes available.
outweighed by the additional funding This analysis, required by the Federalism
received. We do not anticipate this rule Regulatory Flexibility Act, presents an
to result in any transfers between estimate of the effect of the final Executive Order 13132 requires us to
regulated entities given that, as regulations on small entities. The U.S. ensure meaningful and timely input by
described above, the Department would Small Business Administration (SBA) State and local elected officials in the
not be able to implement the statutory Size Standards define proprietary IHEs development of regulatory policies that
requirements in a manner consistent as small businesses if they are have federalism implications.
with the statutory text for certain independently owned and operated, are ‘‘Federalism implications’’ means
eligible entities without this final rule. not dominant in their field of operation, substantial direct effects on the States,
As a result, in the absence of this rule, and have total annual revenue below on the relationship between the
no entity would have received funds $7,000,000. Nonprofit institutions are National Government and the States, or
under the endowment factor. defined as small entities if they are on the distribution of power and
Regulatory Alternatives Considered independently owned and operated and responsibilities among the various
The Department considered a wide not dominant in their field of operation. levels of government. This final
range of options to address the issues Public institutions and local educational regulation may have federalism
posed by the statutory requirements. agencies are defined as small implications.
Initially, we considered whether it was organizations if they are operated by a
Accessible Format: On request to the
possible to resolve the issue without government overseeing a population
below 50,000. program contact person listed under FOR
regulating. As described elsewhere, we FURTHER INFORMATION CONTACT,
determined that it would not be possible For purposes of this analysis, the individuals with disabilities can obtain
to allocate funds for certain eligible Department proposes to define a small this document and a copy of the
entities under the endowment factor in institution as a two-year IHE with an
application package in an accessible
a manner consistent with the statutory enrollment of less than 500 FTE or a
format. The Department will provide the
requirements because doing so would four-year IHE with an enrollment of less
requestor with an accessible format that
require the agency to divide by zero. than 1,000 FTE. Under this proposed
Alternatively, the Department could definition, we would identify 27 of the may include Rich Text Format (RTF) or
have pursued a rule where it sought to 97 affected entities as small. As noted text format (txt), a thumb drive, and
divide the entire amount of funds above, we estimate that this final rule MP3 file, braille, large print, audiotape,
equally among the nine entities with will result in benefits for all affected or compact disc, or other accessible
zero-dollar endowments. Such an entities with no regulatory burden. format.
approach would have focused resources Small institutions would, on average, Electronic Access to This Document:
on entities with smaller endowments see an increase of approximately The official version of this document is
but would have created sizable $952,400 and non-small institutions the document published in the Federal
disparities among entities. For example, receiving an increase would see an Register. You may access the official
an entity without an endowment would increase of approximately $407,900. edition of the Federal Register and the
have received approximately $8.1 Code of Federal Regulations at
As such, the Department certifies that
million, while the entity with the
this rule will not have a significant www.govinfo.gov. At this site you can
smallest non-zero endowment (with an
economic impact on a substantial view this document, as well as all other
endowment of only $6,400) would have
number of small entities. documents of this Department
received no funding.
The Department also could have Paperwork Reduction Act of 1995 published in the Federal Register, in
pursued a rule that imputed a $1 text or portable document format (PDF).
endowment for all of the entities There are no information collection To use PDF, you must have Adobe
without endowments, the minimum requirements associated with this Acrobat Reader, which is available for
required adjustment to allow for regulatory action. free on the site.
formula allocations in accordance with Intergovernmental Review: This You may also access documents of the
the statutory requirements. Using this program is subject to Executive Order Department published in the Federal
approach, approximately 55 institutions 12372 and the regulations in 34 CFR Register by using the article search
would receive funds under the part 79. One of the objectives of the feature at www.federalregister.gov.
endowment factor. Of those, 45 would Executive order is to foster an Specifically, through the advanced
receive allocations of less than $100. intergovernmental partnership and a search feature at this site, you can limit
While this approach would be more strengthened federalism. The Executive your search to documents published by
equitable than the prior alternatives, we order relies on processes developed by
the Department.
still do not believe such an approach State and local governments for
would meet the spirit of the statutory coordination and review of proposed
requirement. Federal financial assistance.
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Federal Register / Vol. 86, No. 76 / Thursday, April 22, 2021 / Rules and Regulations 21195
List of Subjects in 34 CFR Part 677 requirements for the American Rescue Jung, U.S. Department of Education, 400
Colleges and universities, Grant Plan Elementary and Secondary School Maryland Avenue SW, Room 3W113,
programs-education, Reporting and Emergency Relief (‘‘ARP ESSER’’) Fund, Washington, DC 20202.
recordkeeping requirements. under section 2001 of the American Privacy Note: The Department’s policy is
Rescue Plan (‘‘ARP’’) Act of 2021. These to make comments received from members of
Miguel Cardona, requirements are intended to promote the public available for public viewing on the
Secretary of Education. accountability, transparency, and the Federal eRulemaking Portal at
effective use of funds by: Ensuring that www.regulations.gov. Therefore, commenters
■ For the reasons discussed in the should include in their comments only
each State educational agency (‘‘SEA’’)
preamble, the Secretary adds part 677 to information that they wish to make publicly
meaningfully engages in stakeholder
title 34 of the Code of Federal available.
consultation and takes public input into
Regulations to read as follows:
account in the development of its ARP FOR FURTHER INFORMATION CONTACT: Britt
PART 677—HIGHER EDUCATION ESSER plan; ensuring that each local Jung, U.S. Department of Education, 400
EMERGENCY RELIEF FUND educational agency (‘‘LEA’’) develops a Maryland Avenue SW, Room 3W113,
PROGRAMS plan for the use of its ARP ESSER funds Washington, DC 20202. Telephone:
and engages in meaningful consultation (202) 453–5563. Email: ESSERF@ed.gov.
Subpart A—Provisions Related to and seeks public input as it develops
Historically Black Colleges and Universities If you use a telecommunications
the LEA ARP ESSER plan; and
device for the deaf (‘‘TDD’’) or a text
Sec. clarifying how an LEA must meet the
677.1 Calculations.
telephone (‘‘TTY’’), call the Federal
statutory requirement to develop a plan
677.2 [Reserved] Relay Service (‘‘FRS’’), toll free, at 1–
for the safe return to in-person
800–877–8339.
Subpart B—Reserved instruction and continuity of services.
DATES: Effective date: These interim SUPPLEMENTARY INFORMATION: Invitation
Authority: 20 U.S.C. 1221e–3; section final requirements are effective April 22, to Comment: Although the Department
314(a)(2), Pub. L. 116–260, Division M, 134 has decided to issue these interim final
2021.
Stat. 1182. requirements without first publishing
Comment due date: We must receive
your comments on or before May 24, proposed requirements for public
Subpart A—Provisions Related to comment, we are interested in whether
Historically Black Colleges and 2021.
you think we should make any changes
Universities ADDRESSES: Submit your comments
in these requirements. We invite your
through the Federal eRulemaking Portal comments. We will consider these
§ 677.1 Calculations.
or by postal mail, commercial delivery, comments in determining whether to
For the purpose of calculating or hand delivery. We will not accept
allocations under section revise the requirements.
comments submitted by fax or by email
314(a)(2)(A)(iii) of the Coronavirus To ensure that your comments may be
or those submitted after the comment
Response and Relief Supplemental most effectively considered, we urge
period. To ensure that we do not receive
Appropriations Act, 2021 (division M of you to clearly identify the specific
duplicate copies, please submit your
Pub. L. 116–260, December 27, 2020), an section or sections of the interim final
comments only once. In addition, please
institution that has a total endowment requirements that each comment
include the Docket ID at the top of your
of less than $1,000,000, including an addresses and to arrange your comments
comments.
institution that does not have an If you are submitting comments in the same order as the interim final
endowment, will be treated by the electronically, we strongly encourage requirements.
Secretary as having a total endowment you to submit any comments or We invite you to assist us in
of $1,000,000. attachments in Microsoft Word format. complying with the specific
If you must submit a comment in Adobe requirements of Executive Orders 12866
§ 677.2 [Reserved] and 13563 and their overall requirement
Portable Document Format (PDF), we
strongly encourage you to convert the of reducing regulatory burden that
Subpart B—Reserved
PDF to print-to-PDF format or to use might result from these interim final
[FR Doc. 2021–08379 Filed 4–21–21; 8:45 am] some other commonly used searchable requirements. Please let us know of any
text format. Please do not submit the further ways by which we could reduce
BILLING CODE 4000–01–P
PDF in a scanned format. Using a print- potential costs or increase potential
to-PDF format allows the Department to benefits while preserving the effective
DEPARTMENT OF EDUCATION electronically search and copy certain and efficient administration of the
portions of your submissions. Department’s programs and activities.
34 CFR Chapter II • Federal eRulemaking Portal: Go to During and after the comment period,
[Docket ID ED–2021–OESE–0061] www.regulations.gov to submit your you may inspect all public comments
comments electronically. Information about these interim final requirements
RIN 1810–AB64 on using regulations.gov, including by accessing www.regulations.gov. Due
instructions for accessing agency to the current COVID–19 public health
American Rescue Plan Act Elementary documents, submitting comments, and emergency, the Department buildings
and Secondary School Emergency viewing the docket, is available on the are not open to the public. However,
Relief Fund site under ‘‘FAQ.’’ upon reopening, you may also inspect
AGENCY: Office of Elementary and • Postal Mail, Commercial Delivery, the comments in person at 400
Secondary Education, Department of or Hand Delivery: The Department Maryland Avenue SW, Washington, DC
Education. strongly encourages commenters to 20202, between 8:30 a.m. and 4:00 p.m.,
ACTION: Interim final requirements. submit their comments electronically. Eastern Time, Monday through Friday
However, if you mail or deliver your of each week except Federal holidays.
SUMMARY: The Department of Education comments about the interim final To schedule a time to inspect
(‘‘Department’’) establishes interim final requirements, address them to: Britt comments, please contact the person
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