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Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations
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identified by each LEA relative to all LEAs in the State, using the greater of the number of homeless children and youth in either the 201819 or 201920
school year in each LEA.
2 An SEA may not make a subgrant to an LEA under paragraph c1 if the amount of such subgrant would be less than $5,000. An LEA that does not meet this minimum allocation requirement may receive a subgrant only as part of a consortium with other LEAs if the total of their combined allocations is at least $5,000.
3 For the purpose of paragraph c, a consortium means a subgrantee that consists of more than one LEA.
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. 553bB.
Here, there is good cause to waive notice and comment rulemaking due to the urgent needs of children and youth experiencing homelessness in light of the national pandemic, as going through the full rulemaking process would delay the awarding of these grants to SEAs and LEAs.
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 proceduresgenerally 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 ARPHCY funds are intended to support the specific and urgent needs of homeless children and youth due to the extraordinary impact of the pandemic on students experiencing homelessness, including reduced identification of such students, decreased enrollment in school, interrupted classroom instruction, and challenges navigating services for shelter/housing, clothing and school supplies, food, and child care. Due to the emergency nature of this situation, there is not time for public notice and comment. By establishing these requirements now,
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SEAs and LEAs may more quickly and effectively plan for and use ARPHCY
funds to address the needs of homeless children and youth. Establishing the final rule now will give SEAs the opportunity to award ARP Homeless II
funds to LEAs by the start of the 2021
22 school year which can be early August in some States. During the school closures following March 2020, many students experiencing homelessness became disengaged, stopped attending regularly or submitting assignments, became chronically absent, or dropped out.
Those students will need intensive educationally related support services beginning from the first day of the new school year. A delay of even two months to the final requirement and disbursement of funds for ARP
Homeless II will prolong the interruptions in learning for hundreds of thousands of students experiencing homelessness during the pandemic. The beginning of the school year is a critical time for identifying and connecting students experiencing homelessness to remediation and support services. For example, if funds are not awarded to LEAs before September, it will be difficult for schools to place students who are identified as experiencing homelessness in classes at the appropriate grade level, delaying access to critical support services and prolonging interruption in learning caused by the pandemic.
The APA also 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. 553d3.
As discussed above, because the ARP
HCY funds are needed to address the immediate needs of homeless children and youth, the Secretary also has good cause to waive the 30-day delay in the effective date of these requirements under 5 U.S.C. 553d3.
Executive Orders 12866 and 13563
Regulatory Impact Analysis Under Executive Order 12866, the Office of Management and Budget OMB must determine whether this regulatory action is significant and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3f 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
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State, local, or Tribal governments or communities in a material way also referred to as economically significant regulations;
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 Presidents priorities, or the principles stated in the Executive order.
This regulatory action is an economically significant regulatory action subject to review by OMB under section 3f of Executive Order 12866.
Pursuant to the Congressional Review Act 5 U.S.C. 801 et seq., the Office of Information and Regulatory Affairs designated this rule as a major rule, as defined by 5 U.S.C. 8042.
We have also reviewed this 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 upon 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 incentivessuch as user fees or marketable permitsto encourage the desired behavior, or providing 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
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