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Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Rules and Regulations
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assistance under the title IV programs and relocating the revised definition to 34 CFR part 677, which governs the HEERF programs.
Waiver of Notice and Comment Rulemaking and Delayed Effective Date Under the Administrative Procedure Act This final rule defines student for purposes of the HEERF programs, which include funding from the CARES Act, CRRSAA and ARP. Congress enacted the CARES Act, as well as CRRSAA and ARP, to help the nation cope with the urgent economic and health crises created by the COVID19 pandemic and created the HEERF programs to provide emergency financial aid grants to students. CRRSAA and ARP build on the framework for HEERF programs originally created by the CARES Act by allocating money into the same programs, and it is logical to apply the same definition of student for provisions in those two statutes as for the CARES Act. We believe that the public would reasonably have anticipated that this final rule would apply to all HEERF funding. In addition, the purpose of notice and comment has been fulfilled in this case. Here, the IFR
adequately framed the subjects for discussion. Natl Rest. Assn v. Solis, 870 F. Supp. 2d 42, 51 D.D.C. 2012
quoting Conn. Light & Power Co. v.
Nuclear Reg. Commn, 673 F.2d 525, 533 D.C. Cir. 1982. Application of these rules to CRRSAA and ARP
funding was a reasonable development of the original proposal. See id. Further, the Department has responded to the public comments received in response to the IFR in this final rule, and the position taken in this final rule with respect to CRRSAA and ARP funding is consistent with the position many commenters advocated with respect to the CARES Act.
Nevertheless, out of an abundance of caution and because CRRSAA and ARP
were enacted after the closing of the public comment period for the IFR, we are including this waiver of rulemaking in this final rule. We believe that, in the event the inclusion of CRRSAA and ARP is not a logical outgrowth, such waiver is both justified and necessary, based on the circumstances.
In light of the urgent economic challenges facing many students as a result of the crisis, the Department has determined that there is good cause for promulgating this final rule without additional notice and comment and that it would be contrary to the public interest to engage in notice and comment rulemaking. The public comments summarized throughout this
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preamble underscore the importance of this aid to students. For example, as noted earlier in this preamble, the Department now agrees with the numerous commenters who provided evidence to support the conclusion that students who are ineligible for title IV
aid are among those with the most exceptional needs. This final rule will enable institutions to distribute these emergency funds to all eligible students in an expedient manner. Delay of these critical funds to engage in notice and comment rulemaking would be directly contrary to the public interest at issue, addressing exigent need due to the national pandemic.
Under the APA 5 U.S.C. 553, the Department generally offers interested parties the opportunity to comment on proposed rules. 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. While we are responding to public comments received in response to the IFR in this final rule, we also believe that, if needed, a waiver of notice and comment rulemaking with respect to this final rule is warranted by the circumstances and is appropriate to encompass the full scope of the final rule. In light of the current national emergency and the importance of institutions distributing as quickly as possible the HEERF
allocations, including those from CRRSAA and ARP, via emergency financial aid grants to students to help with their expenses related to the disruption of campus operations due to COVID19, the normal rulemaking process would be impracticable and contrary to the public interest.
Therefore, we believe that good cause exists for waiving the notice and comment requirements of the APA.
The Department is not required to conduct negotiated rulemaking for this rule. The requirement in HEA section 492 that requires the Department to obtain public involvement in the development of proposed regulations for title IV of the HEA does not apply to this final rule, because it implements the CARES Act, not title IV. Moreover, even if it did apply, section 492b2 of the HEA provides that negotiated rulemaking may be waived for good cause when doing so would be impracticable, unnecessary, or contrary to the public interest. Section 492b2
of the HEA also requires the Secretary to publish the basis for waiving negotiations in the Federal Register at the same time as the regulations in
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question are first published. Even if section 492 applied to this rule, good cause would exist to waive the negotiated rulemaking requirement, since, as explained above, notice and comment rulemaking is not practicable or in the public interest in this case.
The master calendar requirement in section 482 of the HEA likewise does not apply to this rule, because the rule does not relate to the delivery of student aid funds under title IV.
Additionally, the APA generally requires that regulations be published at least 30 days before their effective date, except as otherwise provided by the agency for good cause found and published with the rule 5 U.S.C.
553d3. As described above, good cause exists for this rule to be effective upon publication in light of the current national emergency and the importance of institutions properly distributing the HEERF allocations via emergency financial aid grants to students to help with their expenses related to the disruption of campus operations due to COVID19. Under the CRA, a major rule may take effect no sooner than 60
calendar days after an agency submits a CRA report to Congress or the rule is published in the Federal Register, whichever is later. 5 U.S.C. 801a3A.
However, the CRA creates limited exceptions to this requirement. See 5
U.S.C. 801 c, 808. An agency may invoke the good cause exception under section 8082 in the case of rules for which the agency has found good cause under the APA standard in section 553bB, to issue the rule without providing the public with an advance opportunity to comment. As stated above, the Department has found good cause to issue this rule without additional notice and comment rulemaking, and thus we are not including the 60-day delayed effective date in this rule.
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, if so, 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 State, local, or Tribal governments or
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