Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 25893 

two impacts on its business. First, the 

BPYC expects the NATO conference to 

severely limit the BPYC’s income 

stream, which is normally generated 

from the aforementioned services. 

Second, the BPYC expects the NATO 

conference to have an impact on the 

BPYC’s membership development, 

which typically occurs in mid April. In 

light of these impacts, the BPYC asked 

to meet with an agent of the Coast Guard 

to discuss the BPYC’s expected losses 

and to arrive at a reasonable 

compensation. On April 20, 2012, a 

member of the Coast Guard’s offices in 

Cleveland, OH, on behalf of the Captain 

of the Port, Sector Lake Michigan, 

telephoned the BPYC and confirmed the 

above understanding of the BPYC’s 

comment and its request. 

In light of the BPYC’s comment, the 

Coast Guard will not change the TFR 

published on April 13, 2012. Although 

the BPYC raised concerns about the 

economic impact of the Coast Guard’s 

security zones, the BPYC’s comment did 

not directly speak to the design, the 

establishment, or the enforcement of 

these security zones. The BPYC did not 

ask the Coast Guard to modify the 

security zones or to reconsider the 

manner in which they are enforced. 

Rather, the BPYC simply asked to meet 

with the Coast Guard to discuss 

compensation. While the Coast Guard 

takes seriously the economic impact 

that its rules might have on small 

entities, the Coast Guard is unable to 

provide compensation to small entities 

so impacted. 

Although the Coast Guard is unable to 

directly compensate small entities for 

the economic impacts of its rules, the 

BPYC is encouraged to contact CWO Jon 

Grob via the contact information 

provided above to discuss the Coast 

Guard’s enforcement of the security 

zones discussed herein and options for 

compliance. 

Dated: April 24, 2012. 

C.W. Tenney, 

Commander, U.S. Coast Guard Captain of 

the Port, Sector Lake Michigan, Acting. 

[FR Doc. 2012–10549 Filed 5–1–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF EDUCATION 

34 CFR Part 690 

[Docket ID ED–2012–OPE–0006] 

RIN 1840–AD11 

Federal Pell Grant Program 

AGENCY: Office of Postsecondary 

Education, Department of Education. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Secretary amends four 

sections of the Federal Pell Grant 

Program regulations to make them 

consistent with recent changes in the 

law that prohibit a student from 

receiving two consecutive Pell Grants in 

a single award year. 

DATES: This interim final rule is 

effective May 2, 2012. We must receive 

your comments on or before June 18, 

2012. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via U.S. mail, commercial delivery, or 

hand delivery. We will not accept 

comments by fax or by email. Please 

submit your comments only once in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

• Federal eRulemaking Portal: Go to 

www.regulations.gov to submit your 

comments electronically. Information 

on using regulations.gov, including 

instructions for accessing agency 

documents, submitting comments, and 

viewing the docket, is available on the 

site under ‘‘How To Use This Site.’’ 

• U.S. Mail, Commercial Delivery, or 

Hand Delivery: If you mail or deliver 

your comments about these interim final 

regulations, address them to Jacquelyn 

Butler, U.S. Department of Education, 

1990 K Street NW., Room 8053, 

Washington, DC 20006–8542. 

Privacy Note: The Department’s 

policy is to make all comments received 

from members of the public available for 

public viewing in their entirety on the 

Federal eRulemaking Portal at 

www.regulations.gov. Therefore, 

commenters should be careful to 

include in their comments only 

information that they wish to make 

publicly available. 

FOR FURTHER INFORMATION CONTACT: 

Jacquelyn Butler, U.S. Department of 

Education, 1990 K Street NW., Room 

8053, Washington, DC 20006–8542. 

Telephone: (202) 502–7890 or via 

Internet at: Jacquelyn.Butler@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD), 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: 

Invitation To Comment 

Although the Secretary has decided to 

issue these interim final regulations 

without first publishing proposed 

regulations for public comment, we are 

interested in whether you think we 

should make any changes in these 

regulations. We invite your comments. 

We will consider these comments in 

determining whether to revise these 

interim final regulations. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Orders 12866 

and 13563 and their overall requirement 

of reducing regulatory burden that 

might result from these interim final 

regulations. Please let us know of any 

further ways we could reduce potential 

costs or increase potential benefits 

while preserving the effective and 

efficient administration of the Federal 

Pell Grant Program. 

During and after the comment period, 

you may inspect all public comments 

about these interim final regulations by 

accessing www.regulations.gov. You 

may also inspect the comments in 

person in Room 8083, 1990 K Street 

NW., Washington, DC, between 8:30 

a.m. and 4 p.m. Washington, DC time, 

Monday through Friday of each week, 

except Federal holidays. 

Assistance to Individuals With 

Disabilities in Reviewing the 

Rulemaking Record 

On request, we will provide an 

appropriate accommodation or auxiliary 

aid to an individual with a disability 

who needs assistance to review the 

comments or other documents in the 

public rulemaking record for these 

interim final regulations. If you want to 

schedule an appointment for this type of 

accommodation or auxiliary aid, please 

contact the person listed under FOR

FURTHER INFORMATION CONTACT. 

Background 

Two Federal Pell Grants in One Award 

Year (§§ 690.63(g)(1), 690.63(h), 690.64, 

690.65(c), 690.65(f), and 690.67) 

In August of 2008, the Higher 

Education Opportunity Act (HEOA), 

Public Law 110–315, added section 

401(b)(5) to the Higher Education Act of 

1965, as amended (HEA), which 

provided that a student enrolled in a 

certificate, associate degree, or 

baccalaureate degree program at least 

half-time for more than one academic 

year may receive up to two consecutive 

Federal Pell Grant Scheduled Awards 

during a single award year. Although 

the addition of section 401(b)(5) was 

effective beginning with the 2009–2010 

award year, we did not publish final 


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25894 Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 

regulations until October 29, 2009 (74 

FR 55902). Those regulations were 

effective beginning with the 2010–2011 

award year. Prior to the publication of 

the October 29, 2009, final regulations, 

we provided guidance to institutions on 

how to implement the provisions of 

section 401(b)(5) to allow certain 

students to receive two Pell Grants in 

one award year for the 2009–2010 award 

year. 

Subsequently, section 1860(a)(2) of 

division B of the Department of Defense 

and Full-Year Continuing 

Appropriations Act, 2011 (Pub. L. 112– 

10) repealed section 401(b)(5) of the 

HEA. The repeal of this provision 

became effective with the 2011–2012 

award year. 

Because there is no longer an 

opportunity for a student to receive a 

second Federal Pell Grant Scheduled 

Award, we are amending current 

§§ 690.63(g)(1), 690.63(h), 690.64, 

690.65(c), 690.65(f), and 690.67. 

Significant Regulations 

We discuss substantive issues under 

the sections of the regulations to which 

they pertain. Generally, we do not 

address regulatory provisions that are 

technical or otherwise minor in effect. 

Part 690—Federal Pell Grant Program 

Two Federal Pell Grants in an Award 

Year (§§ 690.63(g)(1), 690.63(h), 690.64, 

690.65(c), 690.65(f), and 690.67) 

Statute: Section 401(b)(5) of the HEA, 

as amended by the HEOA, provided that 

a student may receive up to two 

consecutive Federal Pell Grant 

Scheduled Awards during a single 

award year if the student is enrolled at 

least half-time for more than one 

academic year, more than two 

semesters, or the equivalent time during 

a single award year. The student must 

also be enrolled in a certificate, 

associate degree, or baccalaureate degree 

program. Section 484(s)(3) of the HEA 

provides the authority to waive this 

provision for students with intellectual 

disabilities who enroll in a 

comprehensive transition and 

postsecondary program. Section 

1860(a)(2) of division B of the 

Department of Defense and Full-Year 

Continuing Appropriations Act, 2011 

(Pub. L. 112–10) repealed section 

401(b)(5) of the HEA. 

Calculation of a Federal Pell Grant for 

a Payment Period (§ 690.63(g)(1)) 

Current Regulations: Current 

§ 690.63(g)(1) provides that the amount 

of a student’s award for the award year 

may not exceed his or her Scheduled 

Federal Pell Grant award for the award 

year unless the student is eligible to 

receive a second Scheduled Federal Pell 

Grant award in the same award year 

under current § 690.67. 

New Regulations: We are revising 

current § 690.63(g)(1) to remove the 

reference to § 690.67. 

Reasons: With the repeal of section 

401(b)(5) of the HEA, it is no longer 

necessary to have procedures for 

awarding a student his or her second 

Scheduled Award in an award year. 

Therefore, these interim final 

regulations remove § 690.67, and we 

remove the unnecessary reference to 

§ 690.67 from current § 690.63(g)(1). 

Payment From Two Scheduled Awards 

(§ 690.63(h)) 

Current Regulations: Under current 

§ 690.63(h), if a student is eligible for 

the remaining portion of a first 

Scheduled Award in an award year and 

for a payment from the second 

Scheduled Award, the student’s 

payment is calculated using the annual 

award for his or her enrollment status 

for the payment period. The student’s 

payment is the remaining amount of the 

first Scheduled Award being completed 

plus an amount from the second 

Scheduled Award in the award year up 

to the total amount of the payment for 

the payment period. 

New Regulations: Current § 690.63(h) 

is removed. 

Reasons: With the repeal of section 

401(b)(5) of the HEA, which provided 

that an otherwise eligible student could 

receive more than one Federal Pell 

Grant in an award year, it is no longer 

necessary to provide regulations that 

calculate a student’s Federal Pell Grant 

payment when the student is eligible to 

receive a payment from his or her first 

and second Scheduled Awards in a 

payment period. Therefore, we are 

removing current § 690.63(h). 

Payment Period in Two Award Years 

(§ 690.64) 

Current Regulations: Under current 

§ 690.64, if a payment period is 

scheduled to occur in two award years, 

an institution must consider this 

‘‘crossover’’ payment period to occur 

entirely in one award year and pay the 

student with funds from the award year 

to which the payment period is 

assigned. An institution must assign the 

payment period to that award year in 

which the student would receive the 

greater payment for the payment period 

based on the information available at 

the time that the student’s Federal Pell 

Grant is initially calculated. If the 

institution subsequently receives 

information that the student would 

receive a greater payment for the 

payment period by reassigning the 

payment to the other award year, the 

institution is required to reassign the 

payment to the award year providing 

the greater payment. 

New Regulations: Under new 

§ 690.64(a) and (a)(1) of these interim 

final regulations, if a student enrolls in 

a payment period that is scheduled to 

occur in two award years, the entire 

payment period must be considered to 

occur within one award year. 

New § 690.64(a)(2) provides that the 

institution must determine for each 

Federal Pell Grant recipient the award 

year in which the payment period will 

be placed. 

New § 690.64(a)(3) and (4) require an 

institution to pay a student with funds 

from the same award year to which the 

payment period was assigned. 

New § 690.64(b) provides that an 

institution may not make a payment that 

will result in the student receiving more 

than his or her Scheduled Federal Pell 

Grant for an award year. 

Reasons: These interim final 

regulations amend § 690.64 to conform 

to the change in the law that repealed 

section 401(b)(5) of the HEA. 

We have retained most of current 

§ 690.64 with the exception of 

§ 690.64(b) which requires an institution 

to assign a crossover payment period to 

the award year in which the student 

receives the greater Federal Pell Grant 

award. The purpose of current 

§ 690.64(b) was to maximize the 

student’s eligibility over the two award 

years in which the payment period was 

scheduled to occur in anticipation of a 

student receiving a second Federal Pell 

Grant Scheduled Award. Since a 

student may not receive a second 

Federal Pell Grant Scheduled Award, it 

is no longer necessary to require that the 

student’s award for the payment period 

be based on the higher Federal Pell 

Grant payment. Therefore we are 

removing current § 690.64(b). Instead, 

under new § 690.64(a)(2), institutions 

have the ability to assign a crossover 

payment period in a way that meets the 

need of its students and maximizes a 

student’s eligibility over the two award 

years in which the crossover payment 

period may occur. New § 690.64(b) is 

necessary to clarify that an institution 

may not make a payment that will result 

in the student receiving more than his 

or her Scheduled Federal Pell Grant for 

an award year. 

Transfer Student: Attendance at More 

Than One Institution During an Award 

Year (§ 690.65(c) and (f)) 

Current Regulations: Current 

§ 690.65(c) provides that a student who 

receives a Federal Pell Grant at one 

institution and subsequently enrolls at a 


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Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 25895 

second institution within the same 

award year may only be paid at the 

second institution for the period of time 

the student is enrolled at that 

institution. The institution must adjust 

the student’s grant to ensure that funds 

received by the student for the award 

year do not exceed the student’s 

Scheduled Federal Pell Grant for that 

award year, unless the student is 

eligible for a second Scheduled Federal 

Pell Grant during that same award year. 

Current § 690.65(f) provides that a 

transfer student must repay any amount 

received in an award year that exceeds 

his or her first or second Scheduled 

Federal Pell Grant. 

New Regulations: We are revising 

current § 690.65(c) and (f) to remove the 

references to § 690.67. 

Reasons: With the removal of § 690.67 

by these interim final regulations in 

accordance with the repeal of section 

401(b)(5) of the HEA, it is no longer 

necessary to provide regulations that 

establish procedures for awarding a 

student his or her second Scheduled 

Award in an award year. Therefore the 

references to § 690.67 are removed from 

current § 690.65(c) and (f). 

Receiving Up to Two Scheduled Awards 

During a Single Award Year (§ 690.67) 

Current Regulations: Current 

§ 690.67(a) provides that an institution 

participating in the Federal Pell Grant 

Program shall award a payment of a 

second Scheduled Award to a student in 

an award year if an otherwise eligible 

student is enrolled for credit or clock 

hours that are attributable to the 

student’s second academic year in the 

award year. 

Current § 690.67(b) provides the 

methods by which an institution must 

determine the credit or clock hours that 

a transfer student has earned at other 

institutions during the award year. 

Current § 690.67(c) provides that a 

financial aid administrator may waive 

the requirement that a student complete 

the credit or clock hours in the student’s 

first academic year in the award year if 

the administrator determines that the 

student was unable to complete those 

clock or credit hours due to 

circumstances beyond the student’s 

control. In this situation, the financial 

aid administrator is required to make 

and document the determination on an 

individual basis. 

Current § 690.67(d) provides that in 

determining a student’s eligibility for a 

second Scheduled Award in an award 

year, an institution may not use credit 

or clock hours that the student received 

based on Advanced Placement (AP) 

programs, International Baccalaureate 

(IB) programs, testing out, life 

experience, or similar competency 

measures. 

New Regulations: Current § 690.67 is 

removed. 

Reasons: With the repeal of section 

401(b)(5) of the HEA, which provided 

that an otherwise eligible student could 

receive more than one Federal Pell 

Grant in an award year, it is no longer 

necessary to provide regulations that 

establish procedures for awarding a 

student his or her second Scheduled 

Award in an award year. Therefore, we 

are removing current § 690.67. 

Executive Orders 12866 and 13563 

Regulatory Impact Analysis 

Under Executive Order 12866, the 

Secretary must determine 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 entitlement 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. 

The statutory elimination of the two 

Pell Grant option as reflected in this 

regulatory action is economically 

significant subject to review by OMB 

under section 3(f)(1) of Executive Order 

12866. 

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 these regulations only 

on a reasoned determination that their 

benefits justify their 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 these 

regulations are consistent with the 

principles in Executive Order 13563. 

We also have determined that this 

regulatory action would 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 of this 

regulatory action. The potential costs 

associated with this regulatory action 

are those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering this program effectively 

and efficiently. 

In assessing the potential costs and 

benefits—both quantitative and 

qualitative—of this regulatory action, 

we have determined that the benefits 

justify the costs. 

1. Summary of Potential Costs and 

Benefits 

These interim final regulations 

remove the regulatory provisions related 


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25896 Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 

to the option of receiving two Pell 

Grants in one year, an option that was 

eliminated by section 1860(a)(2) of 

division B of the Department of Defense 

and Full-Year Continuing 

Appropriations Act, 2011. This option 

was originally authorized by the HEOA 

and was first available in the 2009–2010 

award year. These interim final 

regulations generally restore the longstanding policy related to the timing 

and availability of Pell Grants within an 

award year as it existed before the 2009– 

2010 award year. In the following 

sections, the Department summarizes 

the effects these interim final 

regulations are likely to have on the 

Federal student aid programs, 

institutions of higher education, and 

students. 

Federal Government: Because Pell 

Grants are an entitlement to eligible 

recipients, any changes to the program 

that reduce eligibility will result in 

reduced costs of the Pell Grant Program. 

According to the Department’s 

estimates, the elimination of the option 

for two Pell Grants in one year will 

remove the eligibility of about 1.9 

million students annually and reduce 

costs in the program by approximately 

$24.3 billion over five years. When 

discounted at a 3 percent rate and a 7 

percent rate, this reduces costs in the 

Pell Grant Program over 5 years by $22.2 

billion and $19.7 billion, respectively. 

These reduced costs were attributed to 

the passage of the Department of 

Defense and Full-Year Continuing 

Appropriations Act, 2011, and these 

interim final regulations make the 

regulatory changes to give effect to the 

statute but do not generate any further 

cost reductions. 

Institutions: The effect of the statutory 

change reflected in these interim final 

regulations on institutions will depend 

on the extent to which the availability 

of two Pell Grants in one year induced 

students to pursue additional credits. 

The availability of two Pell Grants in 

one award year was meant to accelerate 

students’ academic programs and 

hopefully lead to more completions in 

a timely period. If this occurred and 

students who received two Pell Grants 

were induced to take more courses and 

progress further in their academic 

pursuits, the institutions will lose some 

tuition and fee revenue from the 

statutory change related to these interim 

final regulations. To the extent students 

took classes they otherwise would have 

taken anyway, the availability of two 

Pell Grants just substituted one source 

of tuition and fee revenue for another 

and may have shifted the timing of 

when the institutions received those 

funds. The limited time the two Pell 

Grants option was available, however, 

makes it difficult to determine the 

extent to which revenues will be 

reduced or shifted to other sources. As 

shown in Table 1, approximately 10 

percent of Pell Grant recipients received 

a second Pell Grant in Award Year (AY) 

2009–2010, and that was expected to 

increase to 20 percent by AY 2012– 

2013. Given projected use of the two 

Pell Grants option, the estimated 

maximum revenue loss to institutions 

would be approximately $24.3 billion 

over 5 years from AY 2011–2012 to AY 

2015–2016. However, as stated earlier in 

this discussion, it is likely that a 

significant portion of this revenue 

would be shifted to other sources or be 

captured over a different time period, so 

the cost to institutions from the 

statutory changes should be much less. 

The institutions’ potential loss of 

revenue related to the elimination of the 

two Pell option will depend on tuition 

reductions institutions choose to grant 

and the students’ response in finding 

alternative sources of funding or 

reducing credits taken. The exact effect 

on institutions cannot be quantified, but 

it is likely to be substantially lower than 

the $24.3 billion discussed above. 

Students: The effect of the statutory 

change reflected in these interim final 

regulations on students is the loss of 

grant aid and potential academic delay 

or decreased likelihood of completion. 

Students will have to replace the 

reduced grant aid with savings, 

earnings, increased debt, or tuition 

reductions granted by institutions. By 

AY 2012–2013 approximately 20 

percent of Pell Grant recipients were 

expected to receive two Pell Grants in 

one year, and they could lose grant aid 

up to the Pell Grant maximum 

depending on their eligibility and 

anticipated credits. The mandatory 

money available from this statutory 

change was directed to the Pell Grant 

Program to maintain the maximum 

grant, to the benefit of all Pell Grant 

recipients. According to the 

Department’s estimates, approximately 

$5 billion in grant aid to almost 2 

million students annually would need 

to be made up through other sources. It 

is not clear if the option for a second 

Pell Grant in one year had a significant 

effect on completion rates, but this is 

another possible cost to some student 

recipients of a second Pell Grant. 

The Department welcomes comments 

about the costs and benefits of the 

changes implemented in these interim 

final regulations. 

Accounting Statement 

As required by OMB Circular A–4 

(available at www.whitehouse.gov/sites/ 

default/files/omb/assets/omb/circulars/ 

a004/a-4.pdf), in the following table we 

have prepared an accounting statement 

showing the classification of the 

expenditures associated with the 

provisions of these interim final 

regulations. This table provides our best 

estimate of the changes in annual 


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Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 25897 

monetized transfers as a result of the 

statutory elimination of the two Pell 

Grant option as reflected in these 

interim final regulations. Expenditures 

are classified as transfers from 

recipients of a second Pell Grant to the 

Federal Government. 

ACCOUNTING STATEMENT CLASSIFICATION OF ESTIMATED EXPENDITURES

[In millions] 

Category Transfers 

Annualized Monetized 

Transfers.

$4,813 (7%). 

$4,838 (3%). 

From Whom To 

Whom? 

From recipients of a 

second Pell Grant 

to the Federal Government. 

2. Clarity of the Regulations 

Executive Order 12866 and the 

Presidential memorandum on ‘‘Plain 

Language in Government Writing’’ 

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these regulations easier to 

understand, including answers to 

questions such as the following: 

• Are the requirements in the 

regulations clearly stated? 

• Do the regulations contain technical 

terms or other wording that interferes 

with their clarity? 

• Does the format of the regulations 

(grouping and order of sections, use of 

headings, paragraphing, etc.) aid or 

reduce their clarity? 

• Would the regulations be easier to 

understand if we divided them into 

more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol 

‘‘§ ’’ and a numbered heading; for 

example, § 690.64.) 

• Could the description of the 

regulations in the SUPPLEMENTARY

INFORMATION section of this preamble be 

more helpful in making the regulations 

easier to understand? If so, how? 

• What else could we do to make the 

regulations easier to understand? 

Send any comments that concern how 

the Department could make these 

regulations easier to understand to the 

person listed in the ADDRESSES section 

of the preamble. 

Waiver of 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 procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest. 5 U.S.C. 553(b)(B). 

There is good cause here for waiving 

rulemaking under the APA. Notice and 

comment to amend current § 690.64 is 

contrary to the public interest because, 

as discussed in more detail in the 

following paragraphs, delay in making 

this regulatory change will cause some 

students to lose some of their Pell Grant 

eligibility. Notice and comment to 

amend §§ 690.63, 690.65, and 690.67 are 

unnecessary because we are merely 

updating these sections to reflect 

statutory changes in Public Law 112–10 

that prohibit a student from receiving 

two Pell Grants in a single award year. 

The APA’s rulemaking exception 

‘‘ ‘Contrary to the public interest’ 

requires that public rule-making 

procedures shall not prevent an agency 

from operating.’’ Riverbend Farms, Inc. 

v. Madigan, 958 F.2d 1479, 1484 n.2 

(9th Cir. 1992), quoting Levesque v. 

Block, 723 F.2d 175, 184 (1st Cir. 1983), 

quoting S. Rep. No. 752, 79th Cong., 1st 

Sess. 14 (1945), reprinted in Senate 

Judiciary Committee, 79th Cong., 2d 

Sess., Administrative Procedure Act 

Legislative History 185, 200 (1946). It 

‘‘connotes a situation in which the 

interest of the public would be defeated 

by any requirement of advance notice, 

as when announcement of a proposed 

rule would enable the sort of financial 

manipulation the rule sought to 

prevent.’’ 

Rulemaking is ‘‘unnecessary’’ when 

the agency is issuing a minor rule in 

which the public is not particularly 

interested. It applies in those situations 

in which ‘‘the administrative rule is a 

routine determination, insignificant in 

nature and impact, and inconsequential 

to the industry and to the public.’’ 

Utility Solid Waste Activities Group v. 

EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), 

quoting U.S. Department of Justice, 

Attorney General’s Manual on the 

Administrative Procedure Act 31 (1947) 

and South Carolina v. Block, 558 F. 

Supp. 1004, 1016 (D.S.C. 1983). 

The statutory change to prohibit a 

student from receiving two Pell Grants 

in a single award year results in 

unintended adverse effects on students 

under current § 690.64. Some students 

may lose Pell Grant eligibility under this 

provision. For example, under current 

§ 690.64, in the summer of 2012, if a 

student had remaining eligibility from 

the 2011–2012 award year, he or she 

would not receive those funds. Instead, 

the student would receive funds under 

the 2012–2013 award year because the 

2012–2013 Pell Grant would be greater. 

This would also reduce the amount of 

Pell Grant funds that would remain 

available to the student for the balance 

of the 2012–2013 award year. 

Assuming a student had $1,500 in 

remaining eligibility for the 2011–2012 

award year, the following table shows 

the student’s eligibility under current 

§ 690.64 and under the changes made by 

these interim final regulations: 

Current rule 

Interim 

final 

regulations 

Award Year 2011–2012 Summer 2012 ................................................................................................................... ........................ $1,500 

Award Year 2012–2013 Summer 2012 ................................................................................................................... $2,775 ........................

Fall 2012 .................................................................................................................................................................. 2,775 2,775 

Spring 2013 ............................................................................................................................................................. ........................ 2,775 

In this example, under the current 

regulations, a student would not receive 

an additional $1,500 of the remaining 

Pell Grant award and would exhaust 

eligibility by the Spring of 2013. These 

interim final regulations avoid this 

result. The student receives an 

additional $1,500 of his or her 

remaining eligible Pell Grant award and 

has not exhausted his or her eligibility 

by the Spring of 2013. It is precisely to 

avoid this harm to students that we are 

waiving rulemaking for the change to 

§ 690.64. 

With respect to §§ 690.63, 690.65, and 

690.67, because these interim final 

regulations merely reflect statutory 

changes and remove obsolete regulatory 

provisions, notice and comment are 

unnecessary. The amendments reflect 

the statutory change to the HEA that 

prohibits a student from receiving two 

Pell Grants in a single award year. 

Accordingly, the Secretary has good 

cause to waive rulemaking with respect 

to the removal of these regulatory 

provisions. 


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25898 Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 

The APA also generally requires that 

regulations be published at least 30 days 

before their effective date, unless the 

agency has good cause to implement its 

regulations sooner. (5 U.S.C. 553(d)(3)). 

Because these interim final regulations 

merely reflect statutory changes and 

remove obsolete regulatory provisions 

and, in the case of new § 690.64, protect 

students from receiving reduced 

amounts of Pell Grant funds, there is 

good cause to make them effective on 

the day they are published. 

Regulatory Flexibility Act Certification 

Initial Regulatory Flexibility Analysis 

These interim final regulations affect 

institutions that participate in Title IV, 

HEA programs, and individual Pell 

Grant recipients. The effect of the 

elimination of two Pell Grants in one 

year will depend on the extent students 

replace the funds from other sources or 

change their academic plans, the 

distribution of recipients of a second 

Pell Grant, and the alternative use of the 

funds. This Initial Regulatory Flexibility 

Analysis presents an estimate of the 

effect on small institutions of the 

statutory changes implemented through 

these interim final regulations. The 

Department welcomes comments and 

information related to this analysis. 

Succinct Statement of the Objectives of, 

and Legal Basis for, These Interim Final 

Regulations 

These interim final regulations 

remove regulatory provisions related to 

the availability of two Pell Grants in one 

year to comply with section 1860(a)(2) 

of division B of the Department of 

Defense and Full-Year Continuing 

Appropriations Act, 2011 (Pub. L. 112– 

10), which repealed section 401(b)(5) of 

the HEA under which an otherwise 

eligible student could receive more than 

one Federal Pell Grant in an award year. 

Description of and, Where Feasible, an 

Estimate of the Number of Small 

Entities to Which These Interim Final 

Regulations Will Apply 

These interim final regulations affect 

institutions that participate in Title IV, 

HEA programs and loan borrowers. The 

definition of ‘‘small entity’’ in the 

Regulatory Flexibility Act encompasses 

‘‘small businesses,’’ ‘‘small 

organizations,’’ and ‘‘small 

governmental jurisdictions.’’ The 

definition of ‘‘small business’’ comes 

from the definition of ‘‘small business 

concern’’ under section 3 of the Small 

Business Act as well as regulations 

issued by the U.S. Small Business 

Administration (SBA). The SBA defines 

a ‘‘small business concern’’ as one that 

is ‘‘organized for profit; has a place of 

business in the U.S.; operates primarily 

within the U.S. or makes a significant 

contribution to the U.S. economy 

through payment of taxes or use of 

American products, materials or labor 

* * *’’ ‘‘Small organizations’’ are 

further defined as any ‘‘not-for-profit 

enterprise that is independently owned 

and operated and not dominant in its 

field.’’ The definition of ‘‘small entity’’ 

also includes ‘‘small governmental 

jurisdictions,’’ which includes ‘‘school 

districts with a population less than 

50,000.’’ 

Data from the Integrated 

Postsecondary Education Data System 

(IPEDS) indicate that roughly 3,448 

institutions representing approximately 

63 percent of those institutions 

participating in the Federal student 

assistance programs meet the definition 

of ‘‘small entities’’ when all private 

nonprofit institutions are classified as 

small because none is dominant in the 

field. If the $7 million in revenue 

requirement were applied to private 

nonprofit institutions, the number of 

small entities would be reduced to 2,386 

or 43.6 percent of institutions. Table 2 

summarizes small institutions and their 

percent of AY 2008–2009 Pell Grant 

recipients and amounts by sector. 


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Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 25899 

Using the distribution of Pell Grant 

recipients and amounts at small 

institutions from Table 2 and the 

Department’s estimated two Pell Grant 

recipients and amounts, the estimated 

maximum cost to small institutions 

across all sectors for the period from 

2011–2012 to 2015–2016 is 

approximately $1.67 billion. The 

estimated recipients and amounts by 

type of institution are summarized in 

Table 3. The amount of grant aid lost for 

any individual institution will depend 

on the extent the second Pell Grant 

option was utilized at that school. If 

distributed evenly across all small 

entities, with nonprofit institutions 

subject to the $7 million revenue 

requirement for a more uniform profile 

of institutions, an annual average of 

$150,000 would not be available from 

second Pell Grants in one award year. 

As discussed in the Summary of 

Potential Cost and Benefits section, 

much of this revenue will be available 

from other sources including the 

preservation of the maximum grant level 

in the Pell Grant Program, student 

earnings or savings, and increased 

student debt. 


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25900 Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 

Description of the Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements of These Interim Final 

Regulations, Including an Estimate of 

the Classes of Small Entities That Will 

Be Subject to the Requirement and the 

Type of Professional Skills Necessary for 

Preparation of the Report or Record 

These interim final regulations do not 

impose any new reporting, record 

keeping, or other compliance 

requirements on institutions. 

Identification, to the Extent Practicable, 

of All Relevant Federal Regulations 

That May Duplicate, Overlap or Conflict 

With These Interim Final Regulations 

These interim final regulations are 

unlikely to conflict with or duplicate 

existing Federal regulations. 

Alternatives Considered 

No alternatives were considered for 

the amendments to §§ 690.63(g)(1), 

690.63(h), 690.65(c), 690.65(f), and 

690.67 because these changes 

implement changes to the HEA enacted 

by Congress and the Department did not 

exercise discretion in developing these 

amendments. With respect to § 690.64, 

the Department could have left the 

current regulations in place. However, 

such an action would have led to 

potentially serious adverse effects on 

students, as described in the Waiver of 

Rulemaking and Delayed Effective Date 

section of this preamble. 

Paperwork Reduction Act of 1995 

These interim final regulations do not 

create any information collection 

requirements. With the removal of 

§§ 690.63(h) and 690.67 and the revision 

of § 690.64, due to the statutory changes, 

the paperwork burden associated with 

those sections are also removed. This 

change results in the discontinuation of 

information collection 1845–0098 and, 

therefore, the elimination of 109,605 

burden hours associated with that 

collection. 

Intergovernmental Review 

This program is not subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. 

Assessment of Educational Impact 

In accordance with section 411 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, the Secretary 

particularly requests comments on 

whether these regulations require 

transmission of information that any 

other agency or authority of the United 

States gathers or makes available. 

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 program 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. Free Internet access to the 

official edition of the Federal Register 


emcdonald on DSK29S0YB1PROD with RULESER02MY12.010</GPH>
Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules and Regulations 25901 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: www.gpo.gov/fdsys. 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 Adobe Portable Document 

Format (PDF). To use PDF, you must 

have Adobe Acrobat Reader, which is 

available free at the site. 

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. 

You may also view this document in 

text or PDF at the following site: 

www.ifap.ed.gov/. 

(Catalog of Federal Domestic Assistance 

Number: 84.063 Federal Pell Grants) 

List of Subjects in 34 CFR Part 690 

Colleges and universities, Elementary 

and secondary education, Grant 

programs—education, Student aid. 

Dated: April 27, 2012. 

Anne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary amends part 

690 of title 34 of the Code of Federal 

Regulations as follows: 

PART 690—FEDERAL PELL GRANT 

PROGRAM 

■ 1. The authority citation for part 690 

continues to read as follows: 

Authority: 20 U.S.C. 1070a, 1070g, unless 

otherwise noted. 

§ 690.63 [Amended] 

■ 2. Amend 690.63: 

■ a. In paragraph (g)(1), by removing the 

words and citation, ‘‘except as provided 

in § 690.67’’; and 

■ b. By removing paragraph (h). 

■ 3. Section 690.64 is revised to read as 

follows: 

§ 690.64 Determining the award year for a 

Federal Pell Grant payment period that 

occurs in two award years. 

(a) If a student enrolls in a payment 

period that is scheduled to occur in two 

award years— 

(1) The entire payment period must be 

considered to occur within one award 

year; 

(2) The institution must determine for 

each Federal Pell Grant recipient the 

award year in which the payment 

period will be placed; 

(3) If an institution places the 

payment period in the first award year, 

it must pay a student with funds from 

the first award year; and 

(4) If an institution places the 

payment period in the second award 

year, it must pay a student with funds 

from the second award year. 

(b) An institution may not make a 

payment which will result in the 

student receiving more than his or her 

Scheduled Federal Pell Grant for an 

award year. 

(Authority: 20 U.S.C. 1070a) 

■ 4. Section 690.65 is amended: 

■ a. In paragraph (c), by removing the 

words and citation, ‘‘except as provided 

under § 690.67’’; and 

■ b. By revising paragraph (f) to read as 

follows: 

§ 690.65 Transfer student: attendance at 

more than one institution during an award 

year. 

* * * * * 

(f) A transfer student shall repay any 

amount received in an award year that 

exceeds his or her Scheduled Federal 

Pell Grant. 

* * * 

§ 690.67 [Removed and Reserved] 

■ 5. Section 690.67 is removed and 

reserved. 

[FR Doc. 2012–10559 Filed 5–1–12; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0271; FRL–9664–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Removal of the 1980 

Consent Order for the Maryland Slag 

Company 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve a revision to the 

Maryland State Implementation Plan 

(SIP). The revision removes a 1980 

Consent Order issued to the Maryland 

Slag Company (now known as 

MultServ). The 1980 Consent Order is 

no longer required to satisfy any 

applicable Federal regulations and the 

Clean Air Act (CAA). EPA is approving 

this revision in accordance with the 

requirements of the CAA. 

DATES: This rule is effective on July 2, 

2012 without further notice, unless EPA 

receives adverse written comment by 

June 1, 2012. If EPA receives such 

comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0271 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: spink.marcia@epa.gov. 

C. Mail: EPA–R03–OAR–2012–0271, 

Marcia L. Spink, Associate Director for 

Policy and Science, Air Protection 

Division, Mailcode 3AP00, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2012– 

0271. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 


emcdonald on DSK29S0YB1PROD with RULES