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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
nondiscrimination practices, voluntarily or because of new or newly enforced state or local laws. The Department reaches that conclusion because, to the extent that grantees knew about the nonstatutory nondiscrimination requirements imposed by the 2016 rule at the time it was promulgated and had any concerns about them, such grantees or prospective grantees would most likely have taken a wait and see approach to the Departments interpretation and enforcement of such provisions. They would thus have fallen within the category described in the previous bullet. The same would likely be the case with respect to such grantees that learned of the 2016 rule only after the factfor example, as a result of coverage of the State of South Carolinas February 2018 request for a deviation from certain requirements in 75.300c and d. Absent specific concerns about complying with those nonstatutory requirements, the Department sees little reason that grantees would change course yet again.
Thus, apart from the familiarization costs, the Department concludes that there will be no economic impact associated with 75.300c and d.
For significant regulatory actions, Executive Order 12866 requires an assessment, including the underlying analysis, of benefits and costs anticipated from the regulatory action. Executive Order 12866, 6a3C, 3f1. The Department provides such an assessment here and provided one in the proposed rule.
Furthermore, the APA requires agencies to base their decisions on consideration of the relevant factors, State Farm, 463 U.S. 29, 42 1983, but it does not require them to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value, Michigan v.
EPA, 135 S. Ct. 2699, 2711 2015, or assess the relevant factors in quantitative terms, Ranchers Cattlemen Action Legal Fund v. USDA, 415 F.3d 1078, 109697 9th Cir. 2005. The Department noted in the proposed rule that it would harmonize and streamline rules and promote flexibility by removing unnecessary burdens. It similarly noted that most of the provisions of the proposed rule have been operational since 2016, and that where the Department proposed to amend the 2016 provisions, grantees were already subject to the requirements that were proposed, so grantees would not need to make any changes to their current practice in response to the rulemaking. Although the Department received comments asserting that
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particular harmsfor example, discrimination against particular groups of beneficiarieswould flow from the removal of the provisions, the Department did not identify such problems prompting its promulgation of 75.300c and d in 2016, and the commenters did not provide evidence to suggest that such problems would occur after promulgation of this final rule.
Finally, the Department believes that this final rule will impose only de minimis costs, if any, on covered entities. This final rule relieves regulatory burdens by removing requirements on recipients and subrecipients in 75.300c that are not imposed by statute, and eliminate the burden imposed on faith-based organizations that participate in the Departments programs to seek an exception from certain nonstatutory nondiscrimination imposed by the 2016
rule through litigation or the exception process in 75.102b, as well as the expenses that the Department would incur in addressing such litigation or exceptions requests. Therefore, as a qualitative matter, the final rule could be seen as relieving burdens and costs rather than imposing them. Because the final rule does not impose any new regulatory requirements, recipients and subrecipients should not incur any new or additional compliance costs. Nor does the Department believe covered entities would necessarily incur any more than de minimis costs to review this rule. Recipients are already required by 75.300a and b and other regulatory provisions to comply with statutory nondiscrimination requirements and ensure their subrecipients and their programs are in compliance. Pursuant to 75.300a, the Departments grantmaking agencies are required to inform applicants for grants and recipients in notices of funding opportunities and award notices of applicable statutory and regulatory requirements, including, specifically, the nondiscrimination requirements applicable to the grant program.
Therefore, as a practical matter, grantees and recipients may rely on these communications to inform them of the legal and regulatory requirements applicable to the programs in which they participate.
However, as a standard practice, the Department considers regulatory familiarization costs in its regulatory impact analyses. Although the Department issues many grants on an annual basis, many recipients receive multiple grants. Thus, based on information in the Departments Tracking Accountability in Government Grant Spending TAGGS system, the
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Department estimates that it has a total of 12,202 grantees.35 Depending on the grantee, the task of familiarization could potentially fall to the equivalent of 1
a lawyer hourly rate: Median $59.11, mean $69.86; 2 a general/operations manager hourly rate: Median $48.45, mean $59.15; 3 a medical and health services manager hourly rate: Median $48.55, mean $55.37; 4 a compliance officer hourly rate: Median $33.02, mean $35.03; or 5 a social and community service manager hourly rate: Median $32.28, mean $35.05.36
Averaging these rates leads to a median hourly rate of $44.28 and mean hourly rate of $50.89. The Department assumes that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200% of the wage rate, or $88.56 median and $101.78
mean. The changes made by the final rule are straight forward and easy to understandand the Department anticipates that professional organizations, trade associations and other interested groups may prepare summaries of the rule. Accordingly, the Department estimates that it would take a grantee approximately an hour to become familiar with the final rules requirements. The Department, thus, concludes that the cost for grantee familiarization with the final rule would total $1,080,609.12 median or $1,241,919.56 mean.
The Department does not believe that covered entities will incur training costs under 75.300c and d of this rule.
Section 75.300c only applies requirements to the extent imposed by statute, and recipients and subrecipients are already required to comply with such statutory requirements under 75.300a and b and other statutes and regulations. Section 75.300d does not impose requirements that recipients or subrecipients need to review, but makes a general statement about the Departments compliance with applicable Supreme Court cases in its award programs, without requiring familiarity with any particular case on the part of recipients or subrecipients.
In both respects, 75.300c and d of this final rule impose requirements that may be simpler and easier to understand than the current regulation.37
35 Based on unique DUNS numbers, the Department had 11,749 recipients in 2017, 12,333
recipients in 2018, and 12,523 recipients in 2019, for an average of 12,202.
36 U.S. Bureau of Labor Statistics, May 2019
National Occupational Employment and Wage Estimates United States, available at https
www.bls.gov/oes/current/oes_nat.htm.
37 The Department notes that Executive Order 12866 is intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or
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