[Congressional Record Volume 169, Number 52 (Wednesday, March 22, 2023)]
[Senate]
[Pages S903-S906]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GOVERNMENT ACCOUNTABILITY OFFICE LEGAL OPINION
Mr. CASSIDY. Madam 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:
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
[[Page S904]]
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/
factsheet-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 Ranking Members
Fox and Burr, Senators Cassidy and Cornyn, and Members of
Congress Good and 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.
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, GA0-06-1064SP (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.
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. 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. 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. 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. 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 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.
[[Page S905]]
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 ``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 carveouts because neither HEA, nor GEPA, nor APA
references the HEROES Act. 5 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
[[Page S906]]
``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 B-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); B-
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/qp/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.
____________________