[Federal Register Volume 85, Number 158 (Friday, August 14, 2020)]
[Notices]
[Pages 49642-49645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17872]


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DEPARTMENT OF EDUCATION


Statewide Family Engagement Centers Program

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

ACTION: Final requirement.

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SUMMARY: The Department of Education (Department) amends program 
requirement (a) in the Fiscal Year (FY) 2018 notice inviting 
applications (NIA) for the Statewide Family Engagement Centers (SFEC) 
program, Catalog of Federal Domestic Assistance (CFDA) number 84.310A. 
This final requirement provides current grantees the opportunity to 
request, on an annual basis, a reduction in their required 15 percent 
matching contribution in a project year due to economic circumstances 
related to the Novel Coronavirus Disease 2019 (COVID-19) pandemic.

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DATES: August 14, 2020.

FOR FURTHER INFORMATION CONTACT: Ms. Beth Yeh, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3E335, Washington, DC 20202. 
Telephone: (202) 205-5798. 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.

SUPPLEMENTARY INFORMATION:
    Purpose of Program: The purpose of the SFEC program, authorized 
under title IV, part E of the Elementary and Secondary Education Act of 
1965, as amended (ESEA), is to provide financial support to 
organizations that provide technical assistance and training to State 
educational agencies (SEAs) and local educational agencies (LEAs) in 
the implementation and enhancement of systemic and effective family 
engagement policies, programs, and activities that lead to improvements 
in student development and academic achievement.

    Program Authority: Sections 4501-4506 of the ESEA (20 U.S.C. 
7241-46).

    Background: Section 4502(c) of the ESEA requires grantees to obtain 
non-Federal matching contributions after the first year of the grant. 
In the NIA published in the Federal Register on June 28, 2018 (83 FR 
30430), we established the specific match percentage in program 
requirement (a) under section 437(d)(1) of the General Education 
Provisions Act (GEPA). Under that requirement, each grantee must secure 
a non-Federal matching contribution of a minimum of 15 percent of its 
SFEC grant award in each of years two through five of the grant, which 
may be in cash or in-kind. The Department understands that, due to the 
national emergency caused by COVID-19, it is now very difficult for 
grantees to meet their match requirements. Many nonprofit organizations 
have lost funding or have changed their priorities to focus on the 
COVID-19 emergency. This could cause difficulties in meeting match 
requirements particularly in year two of the grant, possibly in 
subsequent years.
    The Department is therefore providing flexibility for grantees to 
request, on an annual basis, a reduction of the matching requirement in 
a project year due to economic circumstances related to the COVID-19 
pandemic. Recognizing that, in securing matching contributions, 
grantees might continue to experience the economic effects of the 
pandemic after it has subsided, the Department will consider requests 
for up to one fiscal year following the fiscal year in which the 
national emergency declaration concerning the pandemic, issued on March 
13, 2020, under the National Emergencies Act, is lifted.
    Final Requirement: (a) Matching funds for grant renewal.
    Each grantee must contribute non-Federal matching funds or in-kind 
donations equal to at least 15 percent of its SFEC grant award in 
project years two through five.
    At its discretion, in response to a request from the grantee, the 
Department may reduce the percentage of the required non-Federal 
matching contribution for a grantee for the current project year (e.g., 
for project year two in FY 2020), if requested by the grantee due to 
circumstances related to the COVID-19 pandemic. Grantees interested in 
requesting a reduction of the 15 percent match must submit a written 
request to the Department.
    The request must be addressed to Beth Yeh at [email protected], 
identify the new match percentage proposed, and explain why the 
reduction is needed, including a discussion of how COVID-19 has 
affected the grantee's ability to meet the 15 percent match. In 
addition, the grantee must demonstrate that the change in match will 
not affect achievement of the scope and objectives in the approved 
grant application.

    Note:  All information in the NIA for this grant program remains 
the same, except for the flexibility to request a reduction in the 
15 percent matching program requirement.

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 requirements. 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 grantees requesting 
a reduction of their matching requirements in year two and subsequent 
years of the grant.
    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 and financial hardship in the nonprofit sector. Some grantees 
are having trouble meeting their matching requirements in year two due 
to financial difficulties of nonprofit organizations and reprogramming 
of nonprofit funds to focus on COVID-19. They may also have 
difficulties meeting their matching requirement in subsequent years. 
Due to the emergency nature of this situation, there is not time for 
notice and comment rulemaking. By allowing grantees to request a lower 
matching requirement, they will be able to continue to address the 
objectives in their grants, which are especially important during this 
difficult time for families, including financial hardship and virtual 
learning.
    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 this requirement relieves 
restrictions on the required matching funds, 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;

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    (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 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 significant regulatory action must be fully offset by the 
elimination of existing costs through deregulatory actions. Because the 
final regulatory action is not significant, 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 this final regulatory action 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 requirement 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 regulatory action 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. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Discussion of Costs, Benefits, and Need for Regulatory Action

    The Department recognizes that SFEC grantees provide resources to 
support and improve parent and family engagement in education, which 
now more than ever is of critical importance. We also understand that 
matching requirements serve the significant purpose of leveraging non-
Federal resources to increase the impact of Federal grantmaking. 
However, given the extraordinary economic circumstances surrounding the 
COVID-19 pandemic, the Department believes we must provide flexibility 
to SFEC grantees to request and implement a reduced matching 
contribution where needed. Absent this regulatory action, the 
Department would be obligated to take appropriate enforcement action 
against a grantee that fails to comply with the 15 percent matching 
requirement, which could include reducing the grantee's continuation 
award or terminating its grant. Such actions if taken would inflict 
greater harm on program beneficiaries than would adjustments to the 
provision of project services occasioned by a reduced matching 
contribution.
    Based on currently available information, the Department estimates 
that two of the 12 SFEC grantees will request a match reduction for the 
current fiscal year (project year two), to one percent.\1\ Using an 
average project year two continuation award of approximately $900,000, 
a reduction from 15 percent to one percent would mean that matching 
contributions would be reduced from $135,000 to $9,000, or by $126,000, 
per grantee, for a total reduction of $252,000 in FY 2020 if each 
request is approved. While this estimated reduction in matching 
contributions might be considered a cost attributable to this 
regulatory action, it is in any case minor relative to program funding 
(2.5 percent of $10 million in FY 2020). Moreover, we note that, 
consistent with the final requirement, no reduction to a matching 
contribution may result in a change to the scope and objectives of a 
grantee's project. Lastly, we believe any costs associated with this 
action are outweighed by the benefits to stakeholders discussed in the 
previous paragraph.
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    \1\ Given uncertainty in the persistence of widespread economic 
impacts of the COVID-19 pandemic in FY 2021 and (if applicable) 
future years, the Department does not believe it can estimate with 
confidence the number of SFEC grantees that will request a match 
reduction in those years nor the reduction amounts.
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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

    This final regulatory action does not create any new information 
collection requirements.
    Accessible Format: 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 
under FOR FURTHER INFORMATION CONTACT.
    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 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF, you must have Adobe Acrobat Reader, which is available free at 
the site.

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    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Betsy DeVos,
Secretary of Education.
[FR Doc. 2020-17872 Filed 8-13-20; 8:45 am]
BILLING CODE 4000-01-P