The Department of Education (ED) last Thursday ended its attempt
to put in place on an emergency basis new requirements for foreign gift and
contract reporting under Section 117 of the Higher Education Act. However on
Monday, the department resubmitted a proposal for an expanded information
collection request (ICR) with just one change: It removes the request for
unredacted “true copies” of contracts and gift agreements from covered
institutions.
ED and the Office of Management and Budget have agreed that
the department will use the notice and comment rulemaking process to address
the desire to collect these true copies.
This revision, combined with other changes made earlier in
the process, has resulted in a new ICR that is somewhat improved over what ED
initially submitted Sept. 6. ACE responded
in November to that proposal, stressing that the original ICR was a dramatic
enlargement of federal oversight that reached well beyond the scope of the law.
Since September, ED has backed away from some of the more problematic
provisions in the original ICR. For instance, it clarified that colleges and
universities don’t have to report contracts with foreign entities that involve
the purchasing of goods and services or the leasing of facilities and that
institutions do not have to report tuition payments from foreign students. ED also
deleted a question about whether foreign funding has a direct or indirect
influence on a program or curriculum, and removed another one asking institutions
to certify compliance with certain anti-terrorism requirements.
After ED released a revised ICR on Dec. 17 along with a
request for emergency processing, ACE submitted two comment letters—one opposing the emergency processing request as
unnecessary in the absence of an actual emergency, and one opposing the revised
ICR because it continued to seek information without statutory authority.
The new ICR released Monday still includes the requirement
to submit the names and addresses of anonymous individual donors, a provision
ACE and others in the higher education community oppose. ED says it will
protect the identity of such donors, but it is not clear that promise of
confidentiality can be kept once the documents are in federal possession. ACE
also opposes the requirement of supplying to ED true copies of contract and
gift agreements that ED will now address under a separate rulemaking process,
due to concerns over maintaining the confidentiality of these documents. ACE
and other associations will be submitting comments about these remaining
concerns.
Since 1986, higher education institutions have been required
by Section 117 to report gifts from or contracts entered into with a
foreign government or nongovernmental foreign source with a value of at least
$250,000. Until recently, Section 117 did not appear to be a priority for ED
enforcement. But with increased scrutiny by Congress and the administration
over potential foreign interference in U.S. research efforts—particularly from
China—the department has stepped up efforts to monitor whether institutions are
in compliance.
ED likely will try to have the new ICR procedure in place in
time for the next reporting deadline, July 31, 2020. However, the notice and comment
process for true copies of gift agreements and contracts may take longer.