ED Makes Rules ‘Temporarily Inapplicable’ Following Hurricanes

October 18, 2017 | By Jerry Ashworth | Post a Comment

if-the-time-comes-1388770Thanks to the Department of Education (ED), we have included a new phrase — “temporarily inapplicable” — to our vernacular. In my many years of covering federal government regulatory actions, this is the first time I’ve seen an agency use this authority in response to global conditions.

According to an issuance in today’s Federal Register pertaining to federal student aid programs at foreign institutions affected by natural disasters, ED states that it is “identifying as temporarily inapplicable certain regulatory provisions determining whether an educational institution qualifies in whole or in part as an eligible institution of higher education under the Higher Education Act of 1965, as amended, to provide relief to foreign institutions affected by Hurricane Irma and Hurricane Maria.” These provisions are inapplicable from Oct. 18, 2017, through the earlier of June 30, 2019, or the date that an affected foreign institution can resume operation in its home country.

Making existing regulations inapplicable is allowed under ED regulations at 34 C.F.R. 600.51(c), which states that “a foreign institution must comply with all requirements for eligible and participating institutions except when made inapplicable by the HEA or when the ED secretary identifies specific provisions as inapplicable to foreign institutions.” Using this authority, ED has temporarily made inapplicable nine regulatory provisions from 34 C.F.R. Part 600, which determines whether an educational institution qualifies in whole or in part as an eligible institution of higher education under Higher Education Act, as amended.

ED further adds: “This action allows a foreign institution that can no longer operate in its home country due to the effects of Hurricane Irma or Hurricane Maria to temporarily operate in another country, contingent upon the foreign institution receiving approval from the secretary for the relocation after providing: (1) the plan and timeline for the temporary relocation, including details of the program offerings and an agreement with any institution at which the affected institution will temporarily relocate; (2) approval of the plan and timeline for the temporary relocation from the foreign institution’s accrediting body, including an agreement by that accrediting body to visit and monitor operations at the temporary location; (3) documentation from the government of the country where the temporary campus will be located that the foreign institution will be allowed to operate the temporary location for the period of time specified in the timeline; and (4) any additional information the secretary requires for approval.”

In addition, ED can revoke the approval of a foreign institution for relocation upon evidence of waste, fraud or abuse. The Federal Register announcement then lists the nine regulations as temporarily inapplicable under 34 C.F.R. §§600.52-600.55.

This is an interesting course of action and we’ll watch to see if other agencies follow suit with some of their regulations pertaining to these areas crippled by recent hurricanes.

What is your reaction to these temporarily inapplicable regulations? We’d love to hear from you.

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