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Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations
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regulations that apply to student assistance under the title IV programs and relocating the revised definition to 34 CFR part 677, which governs the HEERF programs.
No Delegation of Authority to the Department Comments: Several commenters challenged the Departments IFR as being in excess of the rulemaking authority delegated to the Department.
These commenters argued that section 18004 contains no evidence that Congress intended to delegate rulemaking authority to the Department.
Thus, these commenters stated that, while Congress could have chosen to delegate authority to the Department to set eligibility criteria for the receipt of grant funds, it did not. Other commenters acknowledged that the Department does hold general authority to promulgate regulations governing the programs it administers, 20 U.S.C.
1221e3, but that the Department lacks express authority in the context of the CARES Act and that, such a broad interpretation would be antithetical to the concept of a formula grant. City of Los Angeles v. Barr, 941 F.3d 931, 942
9th Cir. 2019. Another commenter stated that the Supreme Court has also noted that a clear basis for delegation is particularly important when the rule directly concerns matters of vast economic . . . significance. The CARES Act ostensibly includes no clear basis for the delegation of the authority that the Department assumes through the promulgation of this rule.
As a result, these comments also argued that the IFR would fail at Chevron step zero for lacking a delegation of authority to act in this manner.
Discussion: The Department maintains its position that it has the necessary authority to engage in rulemaking with respect to the programs that it administers, including the HEERF
programs. Specifically, as acknowledged by some commenters, 20 U.S.C. 1221e 3 confers on the Secretary the authority to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of operation of, and governing the applicable programs administered by, the Department. The HEERF programs were clearly given to the Department to administer, as originally enacted in the CARES Act, and continued through the additional monies appropriated for these programs within CRRSAA and ARP. For example, the CARES Act appropriated funding to carry out the Education Stabilization Fund emphasis added, of which the HEERF funds are a part. The primary funding stream under section
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18004a1 of the HEERF program more broadly provides that the Secretary of Education shall allocate funding, thus indicating that all funds in HEERF are within the purview of the Department.
The final rule clarifies ambiguity as to the administrative scope of coverage of HEERF programs i.e., timing of student enrollment, so that institutions may manage HEERF program funds effectively and efficiently. In specifying the administrative scope of that coverage, the Department is guided by the purpose of the HEERF grants to students, which are to cover expenses related to the disruption of campus operations due to coronavirus under the CARES Act and for any component of the students cost of attendance or for emergency costs that arise due to coronavirus under CRRSAA and ARP.
This text provides the necessary framework for the expenses for which HEERF grants to students may be used while leaving ambiguity as to what point in time students must have been enrolled in order to receive HEERF
funding. The Department is mindful that many students who were enrolled during the pandemic have been forced to pause their education by withdrawing, and that institutional debt is one of the primary barriers to students re-enrolling and finishing their education.4 By adopting a definition of student that allows students who were enrolled since the declaration of the national emergency to receive HEERF grants, the Department seeks to provide clarity as to which students may receive HEERF funding consistent with Congressional intent.
The Department has authority to interpret ambiguity in the statute. The Supreme Court has emphasized that if Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority. . . . Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. See Chevron, 467
U.S. at 84344, 104 S. Ct. at 278182.
In this instance, the Departments use of notice-and-comment rulemaking procedures required by the Administrative Procedure Act APA, 5
U.S.C. 551, et seq., has allowed the Department to receive important public input on the burden that results from an overly restrictive definition of student and has informed the Departments changes within this final rule. The Department received several comments as part of its notice and comment process indicating that commenters desired additional clarity on the 4 https www.newamerica.org/education-policy/
reports/comeback-story/recommendations/.

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eligibility of students for HEERF grants based on their enrollment status, while some commenters advocated for an expansive interpretation of which students could be considered enrolled. These comments informed and underpinned our regulating on the relationship between eligibility and student timing of enrollment.
Additionally, the revised definition of student in this final rule reflects our current position that the text of the statute which uses students without any qualification, viewed in context, clearly speaks to all students, regardless of immigration status. And although the Department now believes Congresss intent is clear on this issue, it has explained its position in this final rule in light of the Departments previous assumption about the application of section 1611 to HEERF funds, as well as to address comments on the applicability of section 1611. This final rule thus clarifies that the unqualified statutory term students means just what it saysit encompasses all students, regardless of immigration status. And, because the statutory term students is clear on that issue, the use of that termas explained more fully aboveindicates that section 1611 does not apply.
Therefore, the Department believes that this final rule is consistent with the APA and its rulemaking authority granted by Congress.
Changes: None.
Notice and Comment; Delay of Effective Date Comments: Some commenters argued that the Departments grounds for waiving notice and comment rulemaking in the IFR were insufficient, and therefore that the Department did not fulfill its obligations under the APA.
Commenters disputed that the waiver served the public interest. One commenter claimed that the Department did not explain how issuance of the IFR, which made previous guidance enforceable, would lead to quicker distribution of HEERF funds, or how the waiver was in the public interest. They also pointed out that the Departments desire to make previous guidance on the use of HEERF funds legally binding cannot establish good cause, specifically citing United States v. Reynolds, 710
F.3d 498 3d Cir. 2013, for this purpose.
Commenters also noted that the IFR was issued during pending litigation, which one commenter pointed out called into question the level of certainty it would provide.
Commenters stated that the importance of institutions properly distributing the HEERF allocations and
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