OMB Denies Department of Education’s Emergency Reporting Request

In response to criticism from Congress and the higher education community, among others, the Office of Management and Budget denied the Department of Education’s December request for expedited implementation of a new reporting system for the receipt of foreign gifts and contracts at institutions of higher education.
 
Instead, a revised Information Collection Request (ICR) was published in the Federal Register and includes a 30-day comment period ending March 11, 2020. (Additional materials related to the ICR are available via the regulations.gov website and include the Paperwork Reduction Act Burden Statement and Summary of Public Comments and Responses from the December collection.)
 
The responses from the Department to the public comments collected in December are particularly important.  After considering 41 public comments, the Department made the following notable changes:

• The $250,000 threshold for reporting foreign gifts has been confirmed.
• It has been clarified that institutions must report foreign gifts or contracts only if they reach a combined value of $250,000.
• Tuition will be considered a contract, and would need to be reported if it reaches the $250,000 threshold.
• The submission of “true copies” of gifts and contracts will be addressed through the negotiated rulemaking process at a later date.
• Names and addresses need to be collected, but the Department will withhold confidential business and financial information, to protect the anonymity of donors, if requested under the Freedom of information Act.
• Questions about the identification of a foreign source and whether a legal entity is owned or controlled by a foreign source have been removed.
• Vague and subjective questions about foreign influence over a program or curriculum have been removed.
• The compliance burden estimate has been doubled to 20 hours per response.

While this narrower scope and slightly slower process should give institutions time to evaluate their programs and respond to the Department, it does not mute the interest Congress and the Administration have related to foreign interest and influence on college campuses.  Both continuously reference the Senate Permanent Subcommittee on Investigations of the Committee on Homeland Security report from February 2019 that states institutions are woefully out of compliance on reporting foreign gifts.
 

For more information, please contact:
Stephanie Giesecke