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Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations prevention of waste, fraud, and abuse were insufficient causes for waiving notice and comment rulemaking. They said that grounds for the waiver were undermined by the three-month period between enactment of the CARES Act and issuance of the IFR, and that the Department could make such an argument with respect to any funding it administers. Commenters also pointed to case law stating that a desire to provide immediate guidance does not constitute good cause. One commenter said the Department failed to provide evidence that the one-time emergency HEERF funds would be subject to fraud or waste.
Several commenters stated that the current national emergency was also an insufficient basis for the waiver. They said that the length of time between the CARES Acts enactment and issuance of the IFR, and the fact that guidance on this topic was issued in April 2020, also undermined this argument. They said that any emergency was now of the Departments own making, which case law holds is not justification for a waiver of notice and comment rulemaking. In fact, one commenter pointed out that the need for public comment was great, given the expansiveness of the IFR and its effect of denying emergency relief to students during a pandemic and economic recession.
In addition, commenters argued that, for the same reasons they asserted the Department did not have good cause to waive notice and comment rulemaking, it also did not have good cause to waive the 30-day delayed effective date required by the APA and Congressional Review Act.
Finally, one commenter contrasted the process for the associated information collection with the process for this IFR. They noted that, despite the Departments claims that it was acting for reasons of urgency, it issued an information collection request in relation to its distribution of the HEERF
funds that was subject to a longer notice and comment period 60 days than the IFR 30 days, which they claimed suggested it treated the same set of facts with different levels of urgency.
Discussion: We appreciate the concerns raised by commenters on these topics, including good cause to waive notice and comment rulemaking and delays of effective dates. However, whether or not the IFR met the standard for good cause to waive notice and comment rulemaking, the Department has now considered the comments received in response to the IFR, and is issuing this final rule which responds to them. We greatly value those comments
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and appreciate the value that public comment provides, especially with respect to a rule of this nature. As explained elsewhere throughout this preamble, the Department is now, with the benefit of comments received, revising the rule set forth in the IFR to better effectuate the purposes of the CARES Act, as well as CRRSAA and ARP. See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140
S. Ct. 2367, 2385 2020.
With respect to the Departments information collection request, notice and comment rulemaking under the APA 5 U.S.C. 553 and information collection approval process under the Paperwork Reduction Act 44 U.S.C.
3501, et seq. are separate processes.
The Department requested an emergency clearance under the Paperwork Reduction Act to allow for the immediate collection of this information. Following that, the public was then provided the ability to comment on the proposed burden assessment through the standard information collection process with notice requesting comment being published in the Federal Register.
However, in both instances, the Department pursued the accelerated procedures provided for in applicable law, due to the exigency of the situation.
Changes: None.
Change in Policy; Arbitrary and Capricious Comments: Commenters argued that the IFR was arbitrary and capricious because it changed the Departments policy position without acknowledgment or explanation, and did not examine relevant data, consider effects on students, or provide a satisfactory explanation for the choices it made. Commenters pointed out what they viewed as various inconsistencies between the IFR and previous Department statements, including an April 9, 2020, letter sent by Secretary DeVos to college and university presidents. They also referenced a television appearance by Secretary DeVos. More specifically, commenters stated that the April 9, 2020, letter indicated that each institution may develop its own system and process for determining how to allocate CARES Act funds. Commenters pointed to the Funding Certification and Agreement issued by the Department, which they said initially characterized individual emergency financial aid grants as not constituting Federal financial aid under title IV of the HEA. According to one commenter, this position was more logical and consistent with the CARES
Act and other funding, but it was
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reversed by the IFR without displaying awareness of the change or explaining it. Another commenter pointed to what they said were other inconsistencies in the way the Department interpreted or applied different statutory sections, including interpretations of section 18004c, the application of 8 U.S.C.
1611, and the way funds were allocated when compared with the eligibility criteria.
Discussion: In these final regulations, we are fully explaining our revision of the position taken in the IFR. To the extent this is a departure from our prior policy, all changes are fully explained as required by applicable case law, including cases cited by commenters, such as F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 2009, and Encino Motorcars, LLC v. Navarro, 136
S. Ct. 2117 2016. In addition, we believe that the revisions and explanations throughout this document address the points raised by commenters. As discussed above, the revised definition of student also resolves the disparity the commenter referenced with respect to funding allocation.
Changes: Changes are discussed in applicable sections throughout this preamble.
Comments: None.
Discussion: With respect to student program eligibility, the current definition of student in section 668.2
solely refers to the CARES Act. Given the passage of CRRSAA and ARP, which also allocate funds for the HEERF
programs, the Department believes that this revised definition of student should encompass student eligibility for these programs as well. Thus, the new definition of student refers to student eligibility for the CARES Act, CRRSAA, and ARP under the umbrella of the HEERF programs. We also have added the phrase financial aid grants to students as one of the specific purposes for which student is defined because that language was introduced in section 314c of CRRSAA.
Changes: We have removed the requirement that a student must be eligible for title IV aid to receive financial assistance under the HEERF
programs and clarified in the definition of student that any individual who is or was enrolled at an eligible institution on or after the date the national emergency was declared for COVID19
may qualify for assistance under the HEERF programs. Because an individual is no longer required to be title IV
eligible to receive a HEERF student grant, we are removing the definition of student from the general provisions regulations that apply to student
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