60-day FRN

Federal Register / Vol. 87, No. 167 / Tuesday, August 30, 2022 / Notices

khammond on DSKJM1Z7X2PROD with NOTICES

Two substantively identical versions of that
memorandum were posted to the website of
the Office of Postsecondary Education, dated
January 12 and January 18 (collectively, the
‘‘January 2021 memorandum’’). Having
reviewed the memorandum in consultation
with the Office of Legal Counsel, we have
determined that although it accurately
describes the core features of the HEROES
Act, its ultimate conclusions are unsupported
and incorrect.5 As such, it should be
rescinded.
As an initial matter, the bulk of the January
2021 memorandum’s discussion of HEROES
Act authority describes and quotes the key
provisions of the HEROES Act. The
memorandum explains that the HEROES Act
provides the Secretary ‘‘authority to provide
specified [6] waivers or modifications to Title
IV federal financial student aid program
statutory and regulatory requirements
because of the declared National
Emergency,’’ identifies that declared
emergency as the COVID–19 national
emergency declared on March 18, 2020, and
characterizes this authority as ‘‘narrowly
cabined’’ to achieving five enumerated
purposes, including ‘‘ensur[ing] that . . .
recipients of student financial assistance
under title IV of the Act who are affected
individuals are not placed in a worse
position financially in relation to that
financial assistance because of their status as
affected individuals.’’ Jan. 2021 Mem. at 5–
6.
The memorandum goes on to read in
purported limitations on the scope of relief
that may be afforded that are contrary to the
clear text of the Act. The memorandum
5 In addition to determining that the conclusions
contained in the January 2021 memorandum were
substantively incorrect, we have determined that
the memorandum was issued in contravention of
then-effective Department processes for issuing
significant guidance. An Interim Final Rule issued
by the Department on October 5, 2020, pursuant to
Executive Order 13,891, established additional
procedures for the issuance of guidance documents.
See Rulemaking and Guidance Procedures, 85 FR
62,597 (Oct. 5, 2020); see also Exec. Order No.
13,891, 84 FR 55,235 (Oct. 9, 2019). That rule
established new requirements for the issuance of
guidance and ‘‘significant guidance,’’ defining the
latter term to include guidance documents that
‘‘[r]aise novel, legal, or policy issues arising out of
legal mandates [or] the President’s priorities.’’ 85
FR at 62,608. The public dissemination of the
January 2021 memorandum violated a number of
provisions of this rule, including that guidance
must be ‘‘accessible through the Department’s
guidance portal,’’ and that, barring compelling
cause, all significant guidance may be published
only after a 30-day public comment period and
review by the Office of Management and Budget
under Executive Order 12,866 of September 30,
1993. Id. That rule was rescinded in September
2021, 86 FR 53,863 (Sept. 29, 2021), but it was in
effect at the time of the January 2021
memorandum’s publication. Thus, OGC has
determined that the January 2021 memorandum
was not properly promulgated.
6 We read the term ‘‘specified’’ as acknowledging
statutory limits on HEROES Act authority,
including the enumerated purposes of 20 U.S.C.
1098bb(b)(1), and not as suggesting any atextual
limitations on the Act’s clear grant of authority to
waive or modify ‘‘any’’ statutory or regulatory
provision applicable to student aid programs,
provided other HEROES Act requirements are met.

VerDate Sep<11>2014

17:24 Aug 29, 2022

Jkt 256001

advances three primary arguments in support
of a conclusion that ‘‘Congress never
intended the HEROES Act as authority for
mass cancellation, compromise, discharge, or
forgiveness of student loan principal
balances, and/or to materially modify
repayment amounts or terms.’’ Jan. 2021
Mem. at 6.
First, the memorandum recites certain
statutory limits on the Secretary’s authority,
including the HEROES Act’s statutory
definition of individuals eligible for relief, 20
U.S.C. 1098ee(2), and the enumerated
purposes for which waivers or modifications
may be issued, id. § 1098bb(a)(2).
The memorandum is correct that such
statutory provisions exist but provides no
support for the suggestion that these
provisions impose limitations beyond their
clear terms. See Jan. 2021 Mem. at 6.
Second, the memorandum points to the
HEROES Act’s references to avoiding
‘‘defaults’’ and a ‘‘cross-cite’’ to a separate
provision of the Higher Education Act
relating to the ‘‘return’’ of student loan funds,
concluding that these provisions ‘‘provide a
strong textual basis for concluding Congress
intended loans to be repaid.’’ Id. But these
provisions—which identify as allowable
purposes issuing waivers or modifications to
avoid defaults and granting relief from
certain requirements that borrowers return
certain payments—in no way impose a
requirement that any exercise of HEROES Act
authority must ensure that every borrower is
left with a remaining balance on their loan.
The reference to ‘‘defaults’’ authorizes the
Secretary to ‘‘avoid’’ defaults; it does not
require that he preserve their possibility. And
the Higher Education Act provisions
regarding the ‘‘return’’ of overpayments relate
only to specific processes and calculations
under which students are required to return
grant and loan assistance if they withdraw
from their school, see 20 U.S.C. 1091b; there
is no conceivable reading of this provision
that reflects a congressional intent that all
borrowers, including those not covered by
the section 1091b overpayment provisions,
are required to repay their loans in full.
Third, the memorandum concludes that
the authority to ‘‘waive or modify any
statutory or regulatory provision’’ is limited
to the definition of ‘‘modify’’ that was
adopted for an unrelated telecommunications
statute, and ‘‘does not authorize major
changes.’’ Jan. 2021 Mem. at 6. The
memorandum draws its definition of modify
from MCI Telecomms. Corp. v. Am.
Telephone & Telegraph Co., 512 U.S. 218,
225 (1994). In that case, the statutory
provisions under review applied no clear
limiting principle to a grant of modification
authority to the FCC; the statute allowed
modifications ‘‘in [the FCC’s] discretion and
for good cause shown.’’ Id. at 224 (quoting 47
U.S.C. 203 (1988 ed. and Supp. IV)). Here,
the HEROES Act itself clearly speaks to the
scope of modification authority: the Secretary
may make those modifications as may be
‘‘necessary to ensure’’ specific enumerated
purposes. 20 U.S.C. 1098bb. The Secretary
may not make modifications going beyond
that limit, but nor is he restricted to a degree
of modifications that would fall short of
‘‘ensur[ing]’’ the enumerated purposes are

PO 00000

Frm 00045

Fmt 4703

Sfmt 4703

52945

achieved. Moreover, the HEROES Act
broadly authorizes the Secretary to act as he
‘‘deems necessary’’ to ‘‘waive or modify’’ any
statutory or regulatory provision applicable
to the student aid program. The January 2021
memorandum’s interpretation of ‘‘modify’’
would read the Act to authorize the Secretary
to waive entirely or to make non-major
changes in the relevant statutory or
regulatory provisions, but not authorize the
Secretary to do anything in between. That
interpretation is illogical, and nothing in the
HEROES Act’s broad grant of authority
supports such a reading.
We have discussed these and other aspects
of the January 2021 memorandum with the
Office of Legal Counsel, and we further find
persuasive the discussion of the January 2021
memorandum offered in the Office of Legal
Counsel’s memorandum, which will be
published in tandem with this
memorandum’s recommended publication.
Conclusion
For the reasons detailed above, I
recommend that you (1) determine that the
January 2021 memorandum is formally
rescinded as substantively incorrect and (2)
authorize publication in the Federal Register
and public posting of this memorandum as
the Department’s interpretation of the
HEROES Act.
[FR Doc. 2022–18731 Filed 8–29–22; 8:45 am]
BILLING CODE 4000–01–P

DEPARTMENT OF ENERGY
Proposed Agency Information
Collection
Bonneville Power
Administration, Department of Energy.
ACTION: Submission for Office of
Management and Budget (OMB) review;
comment request.
AGENCY:

The Department of Energy
(DOE), Bonneville Power
Administration (BPA), invites public
comment on a collection of information
that BPA is developing for submission
to OMB pursuant to the Paperwork
Reduction Act of 1995. The proposed
collection, Contractor Safety, will be
used to manage portions of the Safety
program that are related to contractors.
These collection instruments allow for
compliance with Occupational Safety
and Health Administration (OSHA)
requirements.
DATES: Comments regarding this
proposed information collection must
be received on or before October 31,
2022. If you anticipate any difficulty in
submitting comments within that
period, contact the person listed in the
SUMMARY:

FOR FURTHER INFORMATION CONTACT

section as soon as possible.
Written comments and
recommendations for the proposed
information collection should be sent

ADDRESSES:

E:\FR\FM\30AUN1.SGM

30AUN1

khammond on DSKJM1Z7X2PROD with NOTICES

52946

Federal Register / Vol. 87, No. 167 / Tuesday, August 30, 2022 / Notices

within 60 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
‘‘Currently under 60 day Review—Open
for Public Comments’’ or by using the
search function. Written comments may
be sent to Bonneville Power
Administration, Attn: Stephanie Noell,
Privacy Program, CGI–7, PO Box 3621,
Portland, OR 97208–3621, or by email at
[email protected].
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to Attn: Stephanie Noell,
Privacy Program, by email at privacy@
bpa.gov, or by phone at (503) 230–3881.
SUPPLEMENTARY INFORMATION: Comments
are invited on: (a) Whether the
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
or other forms of information
technology.
This information collection request
contains:
(1) OMB No.: New;
(2) Information Collection Request
Titled: Contractor Safety;
(3) Type of Review: New;
(4) Purpose: This information
collection will be used to manage BPA
safety programs that relate to
contractors: BPA F 5480.28e,
Excavation/Trenching Permit, BPA F
6410.15e, Contractor’s Report of Injury
or Illness, BPA F 6410.18e, Contractor’s
Report of Incident/Near-Hit, BPA F
6410.42e, Contract Energized Electrical
Work Permit;
(5) Annual Estimated Number of
Respondents: 190;
(6) Annual Estimated Number of
Total Responses: 190;
(7) Annual Estimated Number of
Burden Hours: 50;
(8) Annual Estimated Reporting and
Recordkeeping Cost Burden: $0.
Statutory Authority: The Bonneville
Project Act of 1937, 16 U.S.C 832a; and
the following additional authorities: 42
U.S.C. 7101; 5 U.S.C. 301; E.O. 12009;
29 U.S.C. 657 and 29 CFR part 1926.

VerDate Sep<11>2014

17:24 Aug 29, 2022

Jkt 256001

Signing Authority
This document of the Department of
Energy was signed on August 8, 2022,
by Candice D. Palen, Information
Collection Clearance Manager, pursuant
to delegated authority from the
Secretary of Energy. That document
with the original signature and date is
maintained by DOE. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DOE Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
the Department of Energy. This
administrative process in no way alters
the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on August 25,
2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
[FR Doc. 2022–18716 Filed 8–29–22; 8:45 am]
BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY
Extension of a Currently Approved
Information Collection for the
Weatherization Assistance Program
Office Energy Efficiency and
Renewable Energy, U.S. Department of
Energy.

AGENCY:

Notice and request for
comments.

ACTION:

The Department of Energy
(DOE or the Department), pursuant to
the Paperwork Reduction Act of 1995),
intends to extend for three years, an
information collection request with the
Office of Management and Budget
(OMB). The information collection
request, Historic Preservation for Energy
Efficiency Programs, was initially
approved on December 1, 2010, under
OMB Control No. 1910–5155 and
expired on September 30, 2015. The
information collection request was
previously approved on February 24,
2020 under OMB Control No. 1910–
5155 and its current expiration date is
February 28, 2023. This extension will
allow DOE to continue data collection
on the status of the Weatherization
Assistance Program (WAP), the State
Energy Program (SEP), and the Energy
Efficiency and Conservation Block Grant
(EECBG) Program. Program activities
will ensure compliance with the
National Historic Preservation Act
(NHPA).

SUMMARY:

PO 00000

Frm 00046

Fmt 4703

Comments regarding this
propose information collection must be
received on or before October 31, 2022.
If you anticipate difficulty in submitting
comments within that period, contact
the person listed FOR FURTHER
INFORMATION CONTACT section as soon as
possible.
ADDRESSES: Written comments may be
sent to Michael Tidwell by email to the
following address: michael.tidwell@
ee.doe.gov with the subject line
‘‘Historic Preservation for Energy
Efficiency Programs (OMB No. 1910–
5155)’’ included in the message. Submit
electronic comments in WordPerfect,
Microsoft Word, PDF, or ASCII file
format, and avoid the use of special
characters or any form of encryption. No
telefacsimiles (faxes) will be accepted.
For detailed instructions on submitting
comments, see ADDRESSES section of
this document. Although DOE has
routinely accepted public comment
submissions through a variety of
mechanisms, including postal mail and
hand delivery/courier, the Department
has found it necessary to make
temporary modifications to the
comment submission process in light of
the ongoing Covid–19 pandemic. DOE is
currently accepting only electronic
submissions at this time. If a commenter
finds that this change poses an undue
hardship, please contact the DOE staff
person listed in this notice.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to Michael Tidwell, EE–5W,
U.S. Department of Energy, 1000
Independence Ave. SW, Washington,
DC 20585–0121 or by email or phone at
[email protected], (240) 285–
8937.
Additional information and reporting
guidance concerning the Historic
Preservation reporting requirement for
the WAP, SEP, and EECBG programs are
available for review at: www.energy.gov/
eere/wipo/downloads/wpn-10-12historic-preservation-implementation.
SUPPLEMENTARY INFORMATION: Comments
are invited on: (a) Whether the extended
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
DATES:

Sfmt 4703

E:\FR\FM\30AUN1.SGM

30AUN1