[Congressional Record Volume 169, Number 51 (Tuesday, March 21, 2023)]
[Senate]
[Pages S853-S856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             GOVERNMENT ACCOUNTABILITY OFFICE LEGAL OPINION

  Mr. CASSIDY. Mr. President, I rise today to formally enter a legal 
opinion from the Government Accountability Office into the Record. The 
contents of this legal opinion confirms that the Biden administration's 
reckless student loan scheme has gone too far, violated process, and 
must be submitted to Congress as a rule, subject to the Congressional 
Review Act.
  The Biden administration proposes to transfer the burden of $400 
billion in Federal student loans onto taxpayers, citing COVID-19. The 
administration continues to charge the U.S. Treasury $5 billion per 
month to extend the loan pause, preventing any return to repayment on 
student loans while it works to cancel them. Meanwhile, Americans who 
chose not to attend college or already sacrificed to pay off their 
loans will be forced to carry the burden of the student debt from those 
who willingly took on these loans.
  GAO's determination means that the Biden administration is not 
playing by the laws of this land in attempting to implement their mass 
student loan scheme and extend the payment pause via executive fiat.
  This GAO legal opinion will allow Congress to exercise its oversight 
prerogative and move forward with a Congressional Review Act resolution 
of disapproval, while we await a Supreme Court decision on the 
constitutionality of the policy.
  I implore all of my colleagues to join me in support of a 
Congressional Review Act resolution of disapproval to stand for the 87 
percent of Americans

[[Page S854]]

who chose not to take student loans or paid off their debt responsibly.
  Mr. President, I ask unanimous consent that the following letter from 
the Government Accountability Office be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the U.S. Government Accountability Office]

                                Decision

     Matter of: U.S. Department of Education--Applicability of the 
         Congressional Review Act to the Department of Education's 
         Student Loan Debt Relief Website and Accompanying Federal 
         Register Publication.
     File: B-334644.
     Date: March 17, 2023.


                                 DIGEST

       The U.S. Department of Education (ED) announced actions to 
     extend a pause on federal student loan repayment and to 
     cancel certain loan debts on a website titled ``One-Time 
     Federal Student Loan Debt Relief.'' ED also publicized these 
     actions in a Federal Register document titled Federal Student 
     Aid Programs (Federal Perkins Loan Program, Federal Family 
     Education Loan Program, and William D. Ford Federal Direct 
     Loan Program). GAO received a request for a decision as to 
     whether ED's actions announced on its website and in the 
     Federal Register (collectively ED's ``Waivers and 
     Modifications'') are a rule for purposes of the Congressional 
     Review Act (CRA). CRA incorporates the Administrative 
     Procedure Act's (APA) definition of a rule and requires that 
     before a rule can take effect, an agency must submit the rule 
     to both the House of Representatives and the Senate, as well 
     as to the Comptroller General. ED did not submit a CRA report 
     to Congress or the Comptroller General on its Waivers and 
     Modifications.
       We conclude that ED's Waivers and Modifications meet the 
     definition of a rule under CRA and that no exception applies. 
     Therefore, ED's Waivers and Modifications are subject to the 
     requirement that they be submitted to Congress. If ED finds 
     for good cause that normal delays in the effective date of 
     the rule are impracticable, unnecessary, or contrary to the 
     public interest, then its rule may take effect at such time 
     as the agency determines, consistent with CRA.


                                DECISION

       On August 24, 2022, President Biden announced that the U.S. 
     Department of Education (ED) would take action to extend a 
     then-current ``pause on federal student loan repayment,'' as 
     well as to provide ``debt cancellation'' for certain federal 
     student loan recipients. The White House, Fact Sheet: 
     President Biden Announces Student Loan Relief for Borrowers 
     Who Need It Most (Aug. 24, 2022), available at https://
www.whitehouse.gov/briefing-room/statements-releases/2022/08/
24/fact-sheet-president-biden-announces-student-loan-relief-
for-borrowers-who-need-it-most/ (last visited Mar. 10, 2023). 
     After President Biden's announcement, ED outlined the 
     referenced actions on a website titled ``One-Time Federal 
     Student Loan Debt Relief.'' ED, Federal Student Aid, One-Time 
     Federal Student Loan Debt Relief, available at https://
studentaid.gov/manage-loans/forgiveness-cancellation/debt-
relief-info (last visited Mar. 10, 2023). ED also provided 
     notice of these actions through a Federal Register document 
     titled Federal Student Aid Programs (Federal Perkins Loan 
     Program, Federal Family Education Loan Program, and William 
     D. Ford Federal Direct Loan Program). 87 Fed. Reg. 61512 
     (Oct. 12, 2022). For ease of reference, we refer collectively 
     to ED's actions in the above-referenced website and Federal 
     Register document as ED's ``Waivers and Modifications.'' GAO 
     received a request for a decision as to whether ED's Waivers 
     and Modifications are a rule for purposes of the 
     Congressional Review Act (CRA). Letter from Chairwoman 
     Virginia Foxx, Senators Bill Cassidy and John Cornyn, and 
     Representatives Bob Good and Mariannette Miller-Meeks, to the 
     Comptroller General (Sept. 23, 2022). As discussed below, we 
     conclude that ED's Waivers and Modifications meet the 
     definition of a rule under CRA and that no exception applies. 
     Therefore, ED's Waivers and Modifications are subject to 
     CRA's submission requirement. Consistent with CRA, ED may 
     forgo the normal delay in a rule's effective date for good 
     cause. 5 U.S.C. Sec. 808(2).
       Our practice when rendering decisions is to contact the 
     relevant agencies to obtain their legal views on the subject 
     of the request. GAO, Procedures and Practices for Legal 
     Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: 
     Sept. 2006), available at https://www.gao.gov/products/gao-
06-1064sp. Accordingly, we reached out to ED to obtain the 
     agency's legal views. Letter from Assistant General Counsel, 
     GAO, to General Counsel, ED (Oct. 17, 2022). We received ED's 
     response on February 22, 2023. Letter from General Counsel, 
     ED, to Assistant General Counsel, GAO (Feb. 22, 2023) 
     (Response Letter).


                               BACKGROUND

     Federal Student Loans and the HEROES Act
       ED currently administers federal student loans pursuant to 
     at least four programs: the William D. Ford Federal Direct 
     Loan Program, the Federal Family Education Loan (FFEL) 
     Program, the Federal Perkins Loan Program, and the Health 
     Education Assistance Loan (HEAL) Program. See 20 U.S.C. 
     Sec. Sec. 1087a-1087j, 1071-1087-4, 1087aa-1087ii; ED, Health 
     Education Assistance Loan Program, 82 Fed. Reg. 53374 (Nov. 
     15, 2017). For each of these programs, Congress set forth 
     relevant terms and conditions in title IV of the Higher 
     Education Act of 1965 (HEA). 20 U.S.C. Sec. 1070 et seq. 
     Among other things, HEA outlines the responsibility of 
     borrowers to repay their loans, the consequences of failing 
     to do so, and the possibility that ED may cancel loans under 
     certain circumstances. See 20 U.S.C. Sec. Sec. 1078-10, 1078-
     11, 1080, 1087j, 1087e, 1087dd, 1087ee. ED also implements 
     HEA through its own regulations. See, e.g., 34 C.F.R. parts 
     674, 681, 682, and 685.
       In the Higher Education Relief Opportunities for Students 
     Act of 2003 (HEROES Act), Congress gave ED the power to 
     ``waive or modify'' HEA provisions and regulations under 
     limited emergency circumstances. Specifically, the Act states 
     that:
       ``Notwithstanding any other provision of law, unless 
     enacted with specific reference to this section, the 
     Secretary of Education . . . may waive or modify any 
     statutory or regulatory provision applicable to the student 
     financial assistance programs under title IV of [HEA] . . . 
     as the Secretary deems necessary in connection with a war or 
     other military operation or national emergency . . . .''

     20 U.S.C. Sec. 1098bb(a)(1). As a prerequisite to providing 
     waivers or modifications under the above-quoted provision, ED 
     must find them ``necessary to ensure'' certain objectives 
     listed in the HEROES Act. Id. Sec. 1098bb(a)(2). The first 
     listed objective is to ensure that ``recipients of [loans] 
     under title IV of [HEA] . . . are not placed in a worse 
     position . . . in relation to [such loans] because of their 
     status as affected individuals.'' Id. The second listed 
     objective is to ensure that ``administrative requirements 
     placed on affected individuals . . . are minimized, to the 
     extent possible without impairing the integrity of the 
     [federal student loan] programs . . . to ease the burden on 
     such students.'' Id.
       The HEROES Act outlines processes for ED to inform the 
     public about waivers and modifications. Id. Sec. 1098bb(b). 
     In addition, the HEROES Act requires ED to provide certain 
     information to Congress about waivers and modifications. Id. 
     Notwithstanding section 437 of the General Education 
     Provisions Act (GEPA) and section 553 of APA, the HEROES Act 
     says that ED must ``by notice in the Federal Register, 
     publish the waivers or modifications of statutory and 
     regulatory provisions that [it] deems necessary'', as well as 
     ``the terms and conditions to be applied in lieu of such 
     [waived or modified] provisions.'' Id. Additionally, ED must 
     provide Congress with an ``impact report'' no later than 15 
     months after it provides any waiver or modification. Id. 
     Sec. 1098bb(c). This report must discuss the impact of ED's 
     waivers or modifications ``on affected individuals'' and 
     ``programs under title IV of the [HEA],'' as well as ED's 
     ``recommendations for changes'' to provisions waived or 
     modified. Id.
       Finally, the HEROES Act speaks to the timing of ED's 
     waivers and modifications. In a subsection titled ``no delay 
     in waivers and modifications,'' the Act says ``Sections 
     482(c) and 492 of the [HEA] shall not apply'' to ED's waivers 
     and modifications. Id. Sec. 1098bb(d). Ordinarily, those 
     provisions require ED to delay the effective date of certain 
     regulations, and to engage in a ``negotiated rulemaking'' 
     process--including the input of students, institutions of 
     higher education, and other affected entities--for 
     regulations concerning federal student loans. See id. 
     Sec. Sec. 1089(c), 1098a.
     ED's Waivers and Modifications
       In its Waivers and Modifications, ED invoked the HEROES Act 
     to take emergency actions in view of the COVID-19 pandemic. 
     As ED explained, President Trump had declared a national 
     emergency concerning the COVID-19 pandemic on March 13, 2020, 
     and it remained in effect at the time of ED's actions. 87 
     Fed. Reg. 61512, 61513. As ED further explained, because the 
     COVID-19 emergency declaration encompassed all areas in the 
     United States, ``any person with a Federal student loan under 
     title IV of the HEA'' was an ``affected individual'' under 
     the HEROES Act. Id. In light of ``the financial harm caused 
     by the COVID-19 pandemic,'' ED said that certain ``waivers 
     and modifications [were] necessary to ensure that affected 
     individuals [were] not placed in a worse position financially 
     with respect to their student loans.'' Id. ED ``further 
     determined'' that these Waivers and Modifications would 
     ``help minimize the administrative burdens placed on affected 
     individuals.'' Id.
       In sum, ED's Waivers and Modifications amounted to two 
     specific actions:
       First, ED extended a then-current ``automatic suspension of 
     payment and application of a zero percent interest rate'' for 
     all individuals with federal direct loans or federally-held 
     FFEL, Perkins, or HEAL loans. Id. ED explained how an 
     automatic suspension of payment and zero percent interest 
     rate originated with the Coronavirus Aid, Relief, and 
     Economic Security (CARES) Act, Pub. L. No. 116-136 (Mar. 27, 
     2020), and how the President and ED had extended these 
     measures through August 2022. Id. at 61513-61514. ED now 
     announced that it was further extending these measures 
     through December 31, 2022. Id. at 61513.
       Second, ED announced that it would ``discharge certain 
     amounts'' of federal direct loans and federally-held FFEL and 
     Perkins loans. Id. Subject to specified income limitations 
     and individual borrowers' submission of applications, ED 
     announced that it would discharge up to $20,000 for borrowers 
     who had

[[Page S855]]

     received a Pell Grant, and up to $10,000 for borrowers who 
     had not received a Pell Grant. Id. ED explained that it was 
     ``modif[ying] the provisions of'' HEA and its implementing 
     regulations in order to make these discharges permissible. 
     Id. at 61514.
       ED indicated that the Waivers and Modifications were 
     effective as of October 12, 2022 (i.e., immediately upon 
     publication in the Federal Register), and that, except where 
     otherwise indicated, they would ``expire at the end of the 
     award year in which the COVID-19 national emergency expires . 
     . . .'' Id. at 61513.
     The Congressional Review Act
       CRA, enacted in 1996 to strengthen congressional oversight 
     of agency rulemaking, requires federal agencies to submit a 
     report on each new rule to both houses of Congress and to the 
     Comptroller General for review before a rule can take effect. 
     5 U.S.C. Sec. 801(a)(1)(A). The report must contain a copy of 
     the rule, ``a concise general statement relating to the 
     rule,'' and the rule's proposed effective date. Id. CRA 
     allows Congress to review and disapprove federal agency rules 
     for a period of 60 days using special procedures. 5 U.S.C. 
     Sec. 802. If a resolution of disapproval is enacted, then the 
     new rule has no force or effect. 5 U.S.C. Sec. 801(b)(1).
       CRA adopts the definition of rule under the Administrative 
     Procedure Act (APA), 5 U.S.C. Sec. 551 (4), which states that 
     a rule is ``the whole or a part of an agency statement of 
     general or particular applicability and future effect 
     designed to implement, interpret, or prescribe law or policy 
     or describing the organization, procedure, or practice 
     requirements of an agency.'' 5 U.S.C. Sec. 804(3). However, 
     CRA excludes three categories of rules from coverage: (1) 
     rules of particular applicability; (2) rules relating to 
     agency management or personnel; and (3) rules of agency 
     organization, procedure, or practice that do not 
     substantially affect the rights or obligations of non-agency 
     parties. Id.
       ED did not submit a CRA report to Congress or the 
     Comptroller General on its Waivers and Modifications. ED 
     contends that the Waivers and Modifications do not meet the 
     definition of a rule under CRA. In addition, ED relies on a 
     provision of the HEROES Act allowing ED to modify student 
     loan requirements ``notwithstanding any other provision of 
     law.'' Response Letter at 1-2 (quoting 20 U.S.C. 
     Sec. 1098bb(a)(1)-(2)).


                               DISCUSSION

       At issue here is whether ED's Waivers and Modifications 
     meet the definition of a rule under CRA. As explained below, 
     we conclude that they do.
       ED's Waivers and Modifications meet CRA's definition of 
     ``rule'' as an agency statement of future effect designed to 
     implement, interpret, or prescribe law or policy. They are an 
     agency statement because ED published them as such on its 
     webpage and in the Federal Register. 87 Fed. Reg. 61513. They 
     have future effect because they temporarily extended a 
     suspension of payment and interest terms, and because they 
     invite borrowers to apply prospectively for the discharge of 
     certain debt amounts. Id. And they implement law and policy 
     by ``waiv[ing]'' and ``modif[ying] the provisions of'' HEA 
     and its implementing regulations. Id.
       Additionally, none of CRA's three statutory exceptions are 
     applicable:
       First, the Waivers and Modifications are not a rule of 
     particular applicability. A rule of particular applicability 
     is one addressed to specific, identified entities. See B-
     333732, Jul. 28, 2022 (explaining that a rule of general 
     applicability is one with an open class but a rule of 
     particular applicability is limited to those named). By 
     contrast, ED's Waivers and Modifications suspended payment 
     obligations and modified interest rates for all individuals 
     with federal direct loans or federally-held student loans. 87 
     Fed. Reg. 61513. They also offer to discharge certain debt 
     amounts for all such individuals meeting specified income 
     limitations. Id.
       Second, the Waivers and Modifications are not a rule 
     relating to agency management or personnel. A rule relates to 
     agency management or personnel if it applies to agency 
     employees and not to outside parties. See e.g., B-331324, 
     Oct. 22, 2019 (determining that 5 U.S.C. Sec. 804(3)(b) does 
     not apply when the rule deals with actions regulated parties 
     should take and not agency management or personnel). But 
     here, the Waivers and Modifications relate to the student 
     loan obligations of all ``affected individuals,'' which ED 
     has defined broadly to include ``any person with a Federal 
     student loan under title IV of the HEA.'' 87 Fed. Reg. 61512, 
     61513.
       Third, and finally, the Waivers and Modifications 
     substantially impact the rights and obligations of non-agency 
     parties because they allow student borrowers to forego 
     ordinary loan-repayment obligations and apply to have certain 
     amounts of debt discharged.
     ED's Response
       ED asserts that the Waivers and Modifications are not 
     subject to CRA because they are ``not a rulemaking, but a 
     one-time, fact-bound application of existing and statutorily 
     prescribed waiver and modification authority.'' Response 
     Letter at 4. ED also states that its Waivers and 
     Modifications are not subject to CRA because the HEROES Act 
     allows ED to modify student loan requirements 
     ``notwithstanding any other provision of law.'' Id. at 1-2 
     (quoting 20 U.S.C. Sec. 1098bb(a)(1)-(2)).
       ED bases its first assertion upon Goodman v. FCC, 182 F.3d 
     987, 993-94 (D.C. Cir. 1999), as well as similar cases 
     finding that an agency's action was an ``order'' or another 
     type of action other than a ``rule'' within the meaning of 
     APA's definitions that CRA incorporates. Id. However, those 
     cases are distinguishable here. In Goodman, the Federal 
     Communications Commission (FCC) took action to resolve 
     several outstanding issues related to Specialized Mobile 
     Radio (SMR) licensees. Id. at 990. The D.C. Circuit found 
     that FCC's action was an ``order'' and ``not a rulemaking'' 
     because it addressed the ``temporary waiver'' of existing FCC 
     rules for already-issued licenses, whereas a rule would have 
     had ``legal consequences `only for the future.' '' Id. at 994 
     (quoting Bowen v. Georgetown University Hospital, 488 U.S. 
     204, 216-17 (1988) (Scalia, J., concurring)). GAO has applied 
     Goodman to find other agency actions beyond CRA's coverage, 
     including most recently in B-334400, Feb. 9, 2023. In that 
     case, we found that the Environmental Protection Agency's 
     resolution of 69 small refinery petitions was an order, not a 
     rule, because the at-issue petitions concerned specific 
     requests for ``statutory exemptions,'' which the APA 
     recognizes as a type of ``license'' and order. B-334400, Feb. 
     9, 2023.
       Here, unlike in the above cases, ED's Waivers and 
     Modifications are oriented generally toward the future and 
     have potentially broad consequences for all loan holders, not 
     just a specifically-identified subset thereof. They do not 
     address existing requests from particular licensees or 
     petitioners, as was the case in Goodman and in B-334400, nor 
     do they apply existing law to the facts of any particular 
     claim or request. To the contrary, ED's Waivers and 
     Modifications substitute new benefits and requirements across 
     the board. See 87 Fed. Reg. 61513. ED asserts that it has not 
     previously submitted rules under the CRA process when using 
     its HEROES Act authority. Those prior HEROES Act actions, 
     however, are not before us and we do not interpret those 
     instances as Congress or GAO finding that CRA did not apply. 
     Instead, we have been asked to assess whether the current 
     Waivers and Modifications are subject to CRA.
       With regard to ED's second assertion, the Supreme Court has 
     recognized that statutory ``notwithstanding any other 
     provision of law'' clauses signal Congress's general intent 
     to ``override conflicting provisions of any other [laws].'' 
     Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993). To 
     determine the scope of any particular ``notwithstanding'' 
     clause, we construe the particular language and ``the design 
     of the statute as a whole.'' See K. Mart Corp v. Cartier, 
     Inc., 486 U.S. 281, 291 (1988); see also B-290125.2, B-
     290125.3, Dec. 18, 2002 (``In expounding a statute, we must . 
     . . look to the provisions of the whole law, and to its 
     object and policy.'') (quoting Maestro Plastics Corp. v. 
     National Labor Relations Board, 350 U.S. 270, 285 (1956)). 
     Generally, laws that are not contrary to the design of a 
     ``notwithstanding'' clause will continue to apply despite 
     that clause. Thus, in B-290125.2, B-290125.3, Dec. 18, 2002, 
     an appropriation act directed the Department of Energy (DOE) 
     to award a construction contract and, ``notwithstanding any 
     other provision of law,'' to negotiate with the awardee and 
     make contract modifications as necessary to ensure that 
     groundbreaking occurred by a specified date. DOE argued that 
     this ``notwithstanding'' clause overrode GAO's authority to 
     decide bid protests under the Competition in Contracting Act 
     of 1984 (CICA), 31 U.S.C. Sec. 3551-3556 (2000). Id. However, 
     GAO rejected DOE's argument because we found that our CICA 
     authority did not ``interfere'' with and ``would not 
     prevent'' DOE from performing the specific time-delimited 
     tasks with which DOE's appropriation was concerned. Id. See 
     also District of Columbia Federation of Civic Assn's v. 
     Volpe, 459 F.2d 1231, 1265 (D.C. Cir. 1971), cert. denied, 
     405 U.S. 1030 (1972) (provision of Federal-Aid Highway Act 
     directing construction of a bridge ``notwithstanding any 
     other provision of law'' did not render inapplicable certain 
     federal statutes regarding protection of historic sites).
       By contrast, where a law cannot be reconciled with the 
     intent of a ``notwithstanding'' clause, it is overridden. For 
     example, in United States v. Novak, the Ninth Circuit 
     considered a Mandatory Victims Restitution Act (MVRA) 
     provision indicating that ``notwithstanding any other Federal 
     law,'' a judgment imposing a fine ``may be enforced against 
     all property or rights to property of the person fined . . . 
     .'' 476 F.3d 1041, 1045, 1046 (9th Cir. Feb. 22, 2007) 
     (quoting 18 U.S.C. Sec. 3613A(d)). The Court found that this 
     provision overrode sections of the Employee Retirement Income 
     Security Act of 1974 (ERISA) prohibiting the ``alienation'' 
     of retirement savings. Id. In doing so, the Court noted the 
     ``breadth of Congress's reference to ``all property or rights 
     to property,'' as well as its use of express language to 
     override a similar ``anti-alienation'' provision in the 
     Social Security Act of 1935 (SSA), among other things. Id. at 
     1047; see also, e.g., Schneider v. United States, 27 F.3d 
     1327 (8th Cir. 1994) (judicial review precluded by Military 
     Claims Act provision stating that agency determinations were 
     final and conclusive ``notwithstanding any other provision of 
     law.'').
       Here, the ``notwithstanding'' clause in the HEROES Act does 
     not exempt ED's Waivers and Modifications from CRA. CRA does 
     not contain a ``specific reference'' to the HEROES Act. See 5 
     U.S.C. Sec. 801; 20 U.S.C. Sec. 1098bb(a)(1). As a basic 
     matter, however, following CRA does not conflict with the 
     design or policy of the HEROES Act. Congress in the HEROES 
     Act empowered ED to address

[[Page S856]]

     ``emergency'' situations. It did this by directing ED to 
     waive or modify student loan provisions that it found 
     necessary to ``ease the burden'' on loan recipients and to 
     ``ensure'' that the emergency did not place them in a ``worse 
     position,'' among other things. Id. Sec. 1098bb(a)(2). It 
     also did this by directing ``no delay'' in the implementation 
     of ED's waivers and modifications. Id. Sec. 1098bb(d).
       Consistent with these aims, CRA also specifically 
     contemplates the possibility of emergency actions requiring 
     immediate implementation. As a general matter, rules subject 
     to CRA may not become effective for 60 days pending 
     Congress's review and potential enactment of a disapproval 
     measure. 5 U.S.C. Sec. 801, 802. But Congress in CRA allowed 
     agencies to find for ``good cause'' that normal delays are 
     ``impracticable, unnecessary, or contrary to the public 
     interest,'' and the agency's rule may then take effect at 
     such time as the agency determines. 5 U.S.C. Sec. 808(2). As 
     in B-290125.2, then, applying CRA's requirements does not 
     ``interfere'' with and ``would not prevent'' ED from carrying 
     out emergency actions under the HEROES Act. B-290125.2, B-
     290125.3, Dec. 18, 2002. If ED believes that its Waivers and 
     Modifications must take immediate effect-as appears to be the 
     case--then it need only make a ``good cause'' finding 
     consistent with CRA's requirements.
       Context considerations provide additional support for our 
     conclusion that Congress did not mean to exempt HEROES Act 
     actions from CRA. First, CRA itself contains a clause 
     indicting that it should apply ``notwithstanding any other 
     provision of law.'' 5 U.S.C. Sec. 806(a). While this alone is 
     not definitive, Congress in the HEROES Act took express 
     action to override certain other provisions without taking 
     comparable action on CRA. Specifically, Congress said that 
     HEA's negotiated rulemaking requirements ``shall not apply,'' 
     and that the HEROES Act's public-reporting requirement would 
     apply ``notwithstanding'' the normal reporting requirements 
     applicable to ED under GEPA and APA (which GEPA references). 
     20 U.S.C. Sec. 1098bb(d). If we interpret the 
     ``notwithstanding'' clause literally, as ED urges us to do, 
     then it was not necessary for Congress to make any of these 
     additional carve-outs because neither HEA, nor OEPA, nor APA 
     references the HEROES Act. U.S.C. Sec. 553, 20 U.S.C. 
     Sec. Sec. 1089(c), 1098a, 1232. Clearly, then, Congress 
     contemplated that procedural requirements like those in HEA, 
     GEPA, and APA could continue in force without presenting any 
     conflict with the ``notwithstanding'' clause; the HEROES Act 
     needed to address these provisions specifically to exempt ED 
     from their requirements.
       ED also asserts that the HEROES Act speaks definitively 
     ``to the role of Congress vis-a-vis waivers and 
     modifications'' with ``its own mechanism of congressional 
     reporting.'' Response Letter at 6. As described above, the 
     HEROES Act requires ED to provide Congress with an ``impact 
     report'' no later than 15 months after it provides any waiver 
     or modification. Id. Sec. 1098bb(c). On its face, this 
     reporting requirement does not displace the purpose of CRA 
     and its requirements, which trigger before an agency takes 
     action. It would be wholly consistent with both CRA and the 
     HEROES Act for an agency to first submit a CRA report (and 
     find ``good cause'' to forego the normal requirements), and 
     then to take action pursuant to the HEROES Act, and then to 
     report on the impact of such actions within 15 months. See 8-
     333501, Dec. 14, 2021 (finding that the Centers for Disease 
     Control and Prevention (CDC) had to submit a CRA report in 
     connection with new masking requirements, but that it could 
     address the need for emergency implementation through a good 
     cause waiver); 8-333732, Jul. 28, 2022 (``While CRA does not 
     provide an emergency exception from its procedural 
     requirements . . . (it] addresses an agency's need to take 
     emergency action without delay.''). Indeed, over the course 
     of the COVID-19 public health emergency, several agencies 
     have submitted rules for congressional review while waiving 
     the delay in effective date by invoking CRA's good cause 
     exception. See, e.g., B-33486, Aug. 10, 2021; B-333381, Jul. 
     9, 2021; B-332918, Feb. 5,2021.
     Issues before the Supreme Court
       With this decision, we are not addressing the questions 
     currently before the Supreme Court in Biden v. Nebraska, 
     which include whether ED's Waivers and Modifications 
     ``exceed[ed] the Secretary [of Education]'s statutory 
     authority or [were] arbitrary and capricious.'' See Supreme 
     Court Docket No. 22-506, Questions Presented (Dec. 1, 2022), 
     available at https://www.supremecourt.gov/docket/docketfiles/
html/gp/22-00506qp.pdf. For present purposes, we treat the 
     Waivers and Modifications as an exercise of the HEROES Act 
     authority that ED invoked to support them. We hold only that 
     a valid exercise of authority under the HEROES Act is subject 
     to CRA We need not reach the more specific conclusion about 
     the substantive validity of ED's Waivers and Modifications at 
     issue in the Supreme Court's decision in Biden v. Nebraska in 
     order to reach a conclusion under CRA.


                               CONCLUSION

       ED's Waivers and Modifications meet the definition of a 
     rule under CRA and no exception applies. Therefore, ED's 
     Waivers and Modifications are subject to the requirement that 
     they be submitted to Congress. If ED finds for good cause 
     that normal delays are impracticable, unnecessary, or 
     contrary to the public interest, then its rule may take 
     effect at whatever date ED chooses, consistent with CRA. 5 
     U.S.C. Sec. 808(2).
                                            Edda Emmanuelli Perez,
     General Counsel.

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