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Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations Additionally, as noted above, the Department invited comment regarding implementation of the requirement to provide services or assistance to nonpublic schools that enroll a significant percentage of students from lowincome families and are most impacted by the COVID19 emergency as part of the Notice Inviting Applications and Announcing Allocations for the Emergency Assistance to Non-Public Schools Program Under the American Rescue Plan Act of 2021, issued on April 12, 2021. The Department reviewed and considered the comments received in response to that notice in the development of these final requirements. That prior comment process and the Departments responsiveness to those comments mitigate the need for notice-andcomment rulemaking in this context.
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.
Again, because the ARP EANS funds are needed to address the immediate needs of students, educators, and schools due to the COVID19 emergency, 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.
Under the Congressional Review Act 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. 801c, 808.
Section 8082 provides that any rule which an agency for good cause finds and incorporates the finding and a brief statement of reasons therefor in the rule issued that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the Federal agency promulgating the rule determines. As stated above, the Department has found good cause to issue these final requirements without notice-and-comment rulemaking, and thus we are not including the 60-day delayed effective date in this document.
Executive Orders 12866 and 13563
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Regulatory Impact Analysis Under Executive Order 12866, the Secretary must determine whether this regulatory action is significant and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and
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Budget 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 the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or 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 entitlements, 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., OMBs 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 these regulations 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 Select, in choosing among alternative regulatory approaches, 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 providing economic incentivessuch as user fees or marketable permitsto encourage the
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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 has emphasized that these techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.
The Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action, and we are issuing these final requirements only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows and the reasons stated elsewhere in this document, the Department believes that the final requirements are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, or Tribal governments in the exercise of their governmental functions.
In this regulatory impact analysis, we discuss the need for regulatory action, the potential costs and benefits, and net budget impacts.
Elsewhere, under Paperwork Reduction Act of 1995, we identify and explain burdens specifically associated with information collection requirements.
Need for Regulatory Action These final requirements are intended to clarify the provision of services or assistance to eligible non-public schools under the ARP EANS program. As discussed elsewhere in this document, the ARP EANS program provides significant resources to SEAs through each respective Governor to provide such services or assistance to respond to the unprecedented educational disruptions caused by the COVID19
emergency. The Department believes this regulatory action is needed to ensure that SEAs provide services or assistance to non-public schools in a manner consistent with statutory requirements. In particular, the Department believes it is important to clarify the continued applicability of EANS requirements under the CRRSA
Act, except as otherwise provided in the ARP Act. Additionally, the Department believes clarification is needed to
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