Indian Education Discretionary Grant Programs; Professional Development Program, 38077-38079 [2020-13286]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 85, Number 123 (Thursday, June 25, 2020)]
[Rules and Regulations]
[Pages 38077-38079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13286]


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DEPARTMENT OF EDUCATION

34 CFR Part 263

RIN 1810-AB58


Indian Education Discretionary Grant Programs; Professional 
Development Program

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final rule.

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SUMMARY: The Department of Education (Department) amends the 
regulations for the Indian Education Professional Development (PD) 
Program, under section 6122 of the Elementary and Secondary Education 
Act of 1965, as amended (ESEA). This final rule provides additional 
time for participants in current PD grant-funded programs who are 
impacted by the extraordinary circumstances related to the COVID-19

[[Page 38078]]

pandemic to find qualifying employment or to complete their work-
related payback obligation.

DATES: Effective Date: June 25, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Angela Hernandez-Marshall, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3W113, 
Washington, DC 20202. Telephone: (202) 205-1909. Email: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or compact 
disc) on request to the contact person listed in this section.

SUPPLEMENTARY INFORMATION: The PD program provides grants to train 
Indian individuals to become teachers or administrators in school 
districts that serve a high proportion of Indian students. ESEA section 
6122 (20 U.S.C. 7442). Under section 6122(h) of the ESEA, the Secretary 
must require, by regulation, that individuals who receive training 
under this program either perform work related to the training and that 
benefits Indian students in a local educational agency that serves a 
high proportion of Indian students, or repay all or a prorated part of 
the assistance received. Under the program regulations implementing 
this requirement, when participants graduate from their pre-service 
training program, they must report on their employment status every six 
months. 34 CFR 263.10(b). If they have not found qualifying employment 
in 12 months, then they are referred for cash payback. 34 CFR 
263.8(c)(1). In addition, graduates who start their work payback but 
are no longer in qualifying employment and do not submit evidence of 
such employment within a 12-month period are also referred for cash 
payback. 34 CFR 263.8(c)(1).
    The Department understands that, due to the national emergency 
caused by COVID-19, it is very difficult for graduates to find 
qualifying employment at this time and, in some cases, previously 
employed individuals have lost their jobs. The Department is therefore 
providing additional time for participants to meet these regulatory 
requirements regarding evidence of employment, by amending the 
provisions in Sec.  263.8(c). Participants who graduate from a program 
during Federal fiscal year (FY) 2020 (October 1, 2019-September 30, 
2020) will have 24 months to submit evidence of qualifying employment. 
Similarly, employed graduates in work payback during FY 2020 must 
submit evidence of continuing employment within a 24-month period, 
rather than a 12-month period. The Department is changing only the 
provision for converting students to cash payback (34 CFR 263.8(c)(1)); 
the regulatory requirements for reporting every six months remains 
unchanged (34 CFR 263.10(b)).

Waiver of Notice and Comment Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, the APA provides that an 
agency is not required to conduct notice and comment rulemaking when 
the agency for good cause finds that notice and public comment thereon 
are impracticable, unnecessary, or contrary to the public interest. 5 
U.S.C. 553(b)(B). Here, there is good cause to waive notice and comment 
rulemaking, because going through the full rulemaking process would 
delay the Department's ability to provide relief to PD program 
participants who would otherwise be referred for cash payback.
    The good cause exception is appropriate ``in emergency situations 
or where delay could result in serious harm.'' See Jifry v. FAA, 370 
F.3d 1174, 1179 (D.C. Cir. 2004) (internal citations omitted). ``The 
public interest prong of the good cause exception to the APA notice and 
comment requirement is met only in the rare circumstance when ordinary 
procedures--generally presumed to serve the public interest--would in 
fact harm that interest.'' Mack Trucks Inc. v. E.P.A., 682 F.3d 87, 95 
(D.C. Cir. 2012).
    The COVID-19 pandemic has escalated at a rapid pace and scale, 
resulting in extraordinary circumstances including widespread school 
closures. Many participants are experiencing difficulties in finding 
employment, or have lost employment, and we have received requests for 
extensions of these deadlines. The COVID-19 crisis has hit particularly 
hard in Indian Country. Some participants who graduated in 2019 are not 
able to find jobs for fall 2020, given the crisis and the lack of 
resources for many school districts. Permitting these Native American 
participants to continue to seek employment in schools that serve a 
high proportion of Native American students, rather than being forced 
into debt during this difficult time, is in the public interest. There 
are approximately 500 participants currently in work-related payback 
status who are required to submit their employment status every six 
months (see 34 CFR 263.10). For those participants who lost their job a 
number of months ago, or who graduated in spring 2019 and are still 
seeking employment, their second six-month submission may be due within 
days or weeks and would trigger the transition to cash payback under 
Sec.  263.8. Due to the emergency nature of this situation, there is 
not time for public notice and comment. By extending the timeline for 
submission of employment evidence, this final regulation ensures that 
these participants will not be forced into debt during this crisis, 
which would be contrary to the public interest. Instead they can 
continue to seek qualifying employment.
    The APA also generally requires that regulations be published at 
least 30 days before their effective date but excepts from that 
requirement rules that grant or recognize an exemption or relieve a 
restriction (5 U.S.C. 553(d)(1)). Because these regulations relieve 
restrictions on participants by providing additional time to obtain 
qualifying employment, this exception to the delayed effective date 
under the APA applies.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to

[[Page 38079]]

review by OMB under section 3(f)(1) of Executive Order 12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866 and 
that imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2020, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. Because this final rule is 
not a significant regulatory action, the requirements of Executive 
Order 13771 do not apply. Pursuant to the Congressional Review Act (5 
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not a ``major rule,'' as defined by 5 U.S.C. 
804(2).
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things, and to the extent practicable--the costs 
of cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing this final regulation only on a reasoned 
determination that its benefits justify its costs. In choosing among 
alternative regulatory approaches, we selected those approaches that 
maximize net benefits. Based on the analysis that follows, the 
Department believes that this final regulation is consistent with the 
principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    In accordance with the Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. This extension of the 
regulatory deadline for participants to find and keep qualifying 
employment is not expected to have any costs because it merely allows 
additional time for those participants to submit their evidence of 
employment in light of the extraordinary circumstances related to the 
COVID-19 pandemic. There is no additional burden on our stakeholders 
but rather a benefit, and the additional burden on the Department, if 
any, is minor.

Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act does not apply to this rulemaking 
because there is good cause to waive notice and comment under 5 U.S.C. 
553.

Paperwork Reduction Act of 1995

    The final regulations do not create any new information collection 
requirements.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
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    You may also access documents of the Department published in the 
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by the Department.

List of Subjects in 34 CFR Part 263

    Business and industry, College and universities, Elementary and 
secondary education, Grant programs--education, Grant programs--
Indians, Indians--education, Reporting and recordkeeping requirements, 
Scholarships and fellowships.

Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
title 34 of the Code of Federal Regulations as follows:

PART 263--INDIAN EDUCATION DISCRETIONARY GRANT PROGRAMS

0
1. The authority citation for part 263 continues to read as follows:

    Authority:  20 U.S.C. 7441, unless otherwise noted.


0
2. Section 263.8 is amended by adding a new paragraph (c)(5) to read as 
follows:


Sec.  263.8  What are the payback requirements?

* * * * *
    (c) * * *
    (5) Notwithstanding paragraph (c)(1) of this section, participants 
who exit or complete a grant-funded training program in Federal fiscal 
year 2020 (October 1, 2019-September 30, 2020) who do not submit 
employment verification within 24 months of program exit or completion, 
and participants with qualifying employment during Federal fiscal year 
2020 who do not submit employment verification for a 24-month period, 
will automatically be referred for a cash payback unless the 
participant qualifies for a deferral as described in Sec.  263.9.
* * * * *
[FR Doc. 2020-13286 Filed 6-24-20; 8:45 am]
BILLING CODE 4000-01-P