[Federal Register Volume 86, Number 182 (Thursday, September 23, 2021)]
[Rules and Regulations]
[Pages 52829-52833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20304]


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DEPARTMENT OF EDUCATION

34 CFR Part 81

[Docket ID ED-2021-OFO-0121]
RIN 1880-AA91


Standardizing Filing Procedures for Administrative Appeals

AGENCY: Office of Finance and Operations, Department of Education.

ACTION: Final regulations.

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SUMMARY: The U.S. Department of Education (Department) amends the 
regulations regarding administrative hearings and appeals to require 
filing using the Office of Hearings and Appeals (OHA) electronic filing 
system (OES).

DATES: These final regulations are effective September 23, 2021.

FOR FURTHER INFORMATION CONTACT: Anthony Cummings, 400 Maryland Avenue 
SW, Room 10089, Potomac Center Plaza, Washington, DC 20202. Telephone: 
(202) 245-7185. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: As explained more fully below, the 
Department is amending its regulations in 34 CFR part 81 to require the 
use of electronic filing (e-filing) in certain cases before OHA, and in 
appeals of decisions issued by OHA to the Office of the Secretary (OS), 
involving the General Education Provisions Act (GEPA) or applying the 
procedures applicable to GEPA matters. These amendments to the 
regulations also provide an opportunity for parties to file a motion 
showing good cause that they are unable to utilize electronic filing.
    Summary of Changes: We discuss substantive issues under the 
sections of the regulations to which they pertain. Generally, we do not 
address regulatory provisions that are technical or otherwise minor in 
effect.

Part 81--General Education Provisions Act--Enforcement

    Statute: Under 20 U.S.C. 1221e-3, the Secretary is vested with 
broad authority to ``make, promulgate, issue, rescind, and amend rules 
and regulations governing the manner of operation of, and governing the 
applicable programs administered by, the Department.'' This provision 
is mirrored in 20 U.S.C. 3474, providing the Secretary authority to 
``prescribe such rules and regulations as the Secretary determines 
necessary or appropriate to administer and manage the functions of the 
Secretary or the Department.'' In particular, under 20 U.S.C. 
1234(f)(1), ``the Secretary shall prescribe by regulation'' the rules 
for conducting proceedings within the Office of Administrative Law 
Judges (OALJ). Such rules must conform to the elements of the 
Administrative Procedure Act (APA) at 5 U.S.C. 554, 556, and 557.
    Current Regulations: The current regulations in 34 CFR part 81 
govern the enforcement of legal requirements under applicable programs 
administered by the Department and implement part E of GEPA. These 
regulations primarily concern the functioning of OALJ, including its 
hearing procedures. Section 81.2 provides definitions, while Sec. Sec.  
81.11, 81.12, 81.20, and 81.42 provide procedures and requirements for 
parties filing documents with the Department in OALJ hearings. Sections 
81.41 and 81.44 provide procedures for how OALJ and the Secretary issue 
decisions. These regulations permit parties to file with the Department 
via mail, hand-delivery, or facsimile transmission. They require OALJ 
and the Secretary to issue decisions to the parties via certified mail, 
return receipt requested.
    New Regulations: The new regulations at Sec. Sec.  81.2, 81.11, 
81.12, 81.20, 81.41, 81.42, and 81.44 require e-filing by the parties 
and the Department, unless, upon motion, a party shows good cause for 
why the document cannot be filed electronically. To accommodate e-
filing, the Department is making other conforming amendments in part 
81. Specifically, we are revising Sec. Sec.  81.12(d)(1) and 81.42(g) 
to provide that the date of an e-filing is the date it is submitted to 
OES or, if the Administrative Law Judge (ALJ) has permitted a paper 
submission, the date the material is hand-delivered or mailed. We are 
revising Sec.  81.12(e) to require a party filing electronically to 
ensure that the Department receives a complete and legible copy of the 
document in a format for electronic filing permitted under OHA 
procedures. Those procedures are currently accessible at https://oha.ed.gov/online-filing/. We are also revising Sec. Sec.  81.41(c) and 
81.44(b) to generally require the Department to e-file initial and 
final

[[Page 52830]]

decisions, respectively. Under the revised regulations, if the ALJ 
permits a party to make a paper submission, upon a showing of good 
cause, the Department must send its initial and final decisions by 
certified mail, return receipt requested, or another parcel service 
with delivery confirmation. We are also removing references to 
facsimile transmission from revised Sec. Sec.  81.12, 81.20, and 81.42 
because that is an outdated practice that we no longer use. Lastly, 
revised Sec. Sec.  81.11(c), 81.20(d)(2), and 81.42(d) and (f) require 
a party to serve a copy of the submission on the other party by hand 
delivery or mail only where the party has been permitted to make a 
paper submission.
    Reasons: The Department adopts an e-Filing requirement for 
administrative litigation to align the Department's general procedures 
with existing Department processes for the submission of documents in 
administrative litigation involving enforcement and compliance under 
the student financial assistance programs authorized under title IV of 
the Higher Education Act of 1965, as amended (HEA), as well as to 
enhance accessibility and operational efficiency.
    By a final rule published in the Federal Register on August 7, 2013 
(78 FR 48048), the Department adopted an electronic filing system for 
use in administrative litigation involving title IV, HEA programs. The 
rule offered parties an alternative to paper-based OHA submissions. 
Thus, broadening the scope of electronic filing aligns with a process 
the Department has already implemented.
    Electronic filing also promotes the accessibility of administrative 
litigation submissions for individuals with disabilities. Section 504 
of the Rehabilitation Act requires that ``no otherwise qualified 
individual with a disability in the United States . . . shall, solely 
by reason of her or his disability, be excluded from the participation 
in, be denied the benefits of, or be subjected to discrimination under 
any program . . . conducted by any Executive agency.'' Section 508 
further establishes requirements for electronic and information 
technology developed, maintained, procured, or used by the Federal 
government and requires Federal electronic and information technology 
to be accessible to people with disabilities, including employees and 
members of the public. The Department has committed to ``making its 
electronic and information technologies accessible to individuals with 
disabilities by meeting or exceeding the requirements of Section 508 of 
the Rehabilitation Act (29 U.S.C. 794d), as amended in 1998.'' U.S. 
Department of Education, Accessibility Statement (available at https://www2.ed.gov/notices/accessibility/index.html).
    Under a system requiring electronic filing, accessible formatting 
of documents is expedited by avoiding the need for Department staff to 
scan paper copies, which can sometimes number in the hundreds or even 
thousands of pages. Accessibility is accomplished through the use of 
assistive technology, like a Windows-Eyes or JAWS screen reader, 
further advancing OHA's and the Department's ability to achieve the 
objectives of the Rehabilitation Act.
    Additionally, requiring e-filing will make administrative 
litigation submissions more accessible to all parties. When a party to 
a matter files a document through OES or the presiding ALJ issues an 
order or decision, the document appears in the electronic docket. That 
docket is accessible to any person who is a party or who represents a 
party. Once a person has access to the electronic docket of filings, 
that person can then open an electronic copy of the document. Requiring 
all parties to use OES ensures that all parties have access to the same 
information and all parties know conclusively what arguments have been 
made and what evidence is before the tribunal in support of those 
arguments. Additionally, if a party changes representation, or retains 
representation at some time during the pendency of the matter, the new 
representative can be given access to all orders and filings in the 
case instantaneously. Additionally, in the Department's experience, 
parties that submit filings by facsimile or in paper format want 
assurance that such filings have been timely received by OHA or OS. 
Having all relevant documents accessible through one electronic docket, 
when possible, will eliminate the need to confirm receipt.
    Also, there is an added efficiency to requiring that all filings be 
made in electronic format. Nearly any matter initially coming before 
OHA can be appealed, after a final agency decision is issued by the 
Secretary, to a Federal district court or Federal circuit court of 
appeals. All, or nearly all, Federal district and circuit courts use 
electronic files through the Public Access to Court Electronic Records 
(PACER) system or through case management/electronic case files (CM/
ECF) systems. Having all documents filed in a case already in 
electronic format leads to efficiency in submitting the case file to 
the relevant Federal court. In fact, the United States Court of Appeals 
for the Fifth Circuit has sent a letter to OHA indicating that it 
requires all case files in matters appealed to that Court to be sent in 
electronic format. Additionally, as noted on the OHA website at 
oha.ed.gov, electronic filing allows parties to file documents and 
pleadings electronically in less time and at substantially less cost 
than paper filings by allowing the parties to forgo printing, postage, 
and courier costs.

Waiver of Proposed Rulemaking and Delayed Effective Date

    Under the APA (5 U.S.C. 553), the Department generally offers 
interested parties the opportunity to comment on proposed regulations. 
However, the APA provides that an agency is not required to conduct 
notice and comment rulemaking for interpretative rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice. 5 U.S.C. 553(b)(3)(A). See, e.g., Kaspar Wire Works, Inc. v. 
Sec'y of Labor, 268 F.3d 1123, 1132 (D.C. Cir. 2001); JEM Broad. Co. v. 
FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (procedural rules `` `cover[ ] 
agency actions that do not themselves alter the rights or interests of 
parties, although [they] may alter the manner in which the parties 
present themselves or their viewpoints to the agency.' '' (quoting 
Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980))). This rule 
solely addresses the manner in which the parties submit certain filings 
to the Department and, accordingly, is a procedural rule for which 
notice and comment rulemaking is not required.
    The APA generally 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. 553(d)(3)). As previously 
stated, because the final regulations merely reflect minor changes to 
agency procedure, which are designed to make the process more 
accessible, transparent, and efficient for all parties, there is good 
cause to waive the delayed effective date in the APA and make the final 
regulations effective upon publication.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order (E.O.) 12866, the Office of Management and 
Budget (OMB) must determine whether this regulatory action is 
``significant'' and, therefore, subject to the requirements of the 
Executive order and subject to review by OMB. Section 3(f) of E.O. 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--

[[Page 52831]]

    (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 communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement 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 President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under E.O. 12866.
    We have also reviewed these regulations under E.O. 13563, which 
supplements and explicitly reaffirms the principles, structures, and 
definitions governing regulatory review established in E.O. 12866. To 
the extent permitted by law, E.O. 13563 requires that an agency--
    (1) Propose or adopt regulations only on 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) In choosing among alternative regulatory approaches, select 
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 economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    E.O. 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 of OMB has emphasized that these techniques may 
include ``identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral 
changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs.
    The Department has analyzed the costs and benefits of complying 
with these final regulations. Due to annual variation in the number and 
size of administrative litigation filings, we cannot estimate, with 
absolute precision, the likely effects of these regulations. However, 
as discussed below, we estimate that these final regulations will 
result in a net cost savings of between $4,571 and $5,570 over the next 
10 years.
    For purposes of these estimates, the Department assumes that OHA 
and OS receive approximately 2.5 paper filings in administrative 
litigation per year. Of those, we assume that approximately 25 percent 
are submitted by law offices and the remaining 75 percent are submitted 
by educational institutions or entities. We assume that submissions 
made by law offices would be completed by paralegals at a rate of 
$41.26 per hour and submissions made by educational institutions or 
entities would be completed by an administrative assistant at a rate of 
$45.10 per hour. We assume that submissions made by Department staff 
would be conducted by staff at the GS-11 level at a rate of 
approximately $51.55 per hour.
    We assume that staff who typically prepare and transmit paper 
copies of filings will need to familiarize themselves with the 
requirements in the final regulations and OES. We assume that this 
activity will take approximately 1 hour for an estimated one-time cost 
of $110.
    Currently, staff preparing and transmitting paper filings are 
required to prepare such filings in triplicate. We assume this work 
takes paralegals and administrative assistants approximately 15 minutes 
per filing. This estimate is intended to capture time to compile, bind, 
and pack the filings for transmittal. We do not estimate time burdens 
for printing, during which time we assume staff could be completing 
other tasks. We also assume that each filing requires approximately $10 
in materials such as paper, binders, and boxes. We assume that staff 
then ship the filings at a cost of approximately $50 per filing, based 
on approximate costs for shipping a 15-pound parcel Priority Mail 
Express through the U.S. Postal Service. Once the paper filings are 
received by OHA, we assume it takes approximately 4 hours per filing 
for OHA staff to process the filing, including logging it in, unbinding 
and scanning the materials, creating necessary folders, reviewing the 
scans, and uploading them to OES. Finally, in accordance with the 
Department's record retention policy, paper filings are eventually 
transferred to the National Archives and Record Administration for 
storage, which we assume takes 15 minutes per filing. In total, we 
estimate that the current process of paper filings has an annual cost 
of approximately $725. These costs would be eliminated under the final 
regulations.
    Under the final regulations, parties would directly upload filings 
into OES, which we estimate would take approximately 15 minutes per 
filing. We also assume that Department staff would need to spend 
approximately 15 minutes per filing for various processing activities. 
In total, we assume that the process under the final regulations would 
cost approximately $60 per year.
    Over the course of the next 10 years, we estimate that these final 
regulations will result in a net cost savings of between $4,571 and 
$5,570.

Regulatory Flexibility Act Certification

    Because notice-and-comment rulemaking is not necessary for this 
procedural rule, the Regulatory Flexibility Act (96 Pub. L. 354, 5 
U.S.C. 601-612) does not apply.

Paperwork Reduction Act of 1995

    The final regulations do not create any new information collection 
requirements.
    Accessible Format: On request to the contact person listed under 
FOR FURTHER INFORMATION CONTACT, individuals with disabilities can 
obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or another accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF, you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit

[[Page 52832]]

your search to documents published by the Department.

List of Subjects in 34 CFR Part 81

    Administrative practice and procedure, Grant programs--education.

    Dated: September 15, 2021.
Denise L. Carter,
Acting Assistant Secretary for Finance and Operations.

    For the reasons discussed in the preamble, the Secretary amends 
part 81 of title 34 of the Code of Federal Regulations as follows:

PART 81--GENERAL EDUCATION PROVISIONS ACT--ENFORCEMENT

0
1. The authority citation for part 81 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3, 1234(f)(1), and 3474(a).


0
2. Section 81.2 is amended by adding, in alphabetical order, a 
definition for ``OES'' to read as follows:


Sec.  81.2  Definitions.

* * * * *
    OES means the OHA Electronic System or any successor system 
designated by the Department.
* * * * *

0
3. Section 81.11 is amended by revising paragraph (c) to read as 
follows:


Sec.  81.11  Motions.

* * * * *
    (c) Parties must file motions with the ALJ, and serve them upon the 
other party, as provided under Sec.  81.12.
* * * * *

0
4. Section 81.12 is revised to read as follows:


Sec.  81.12  Filing requirements.

    (a) Method of filing. (1) Any written submission to an ALJ or the 
OALJ under this part, including pleadings, petitions, and motions, must 
be filed by submission to OES unless a party shows the ALJ good cause 
why its written submission cannot be filed electronically. A party 
filing electronically is responsible for ensuring that a complete and 
legible document was successfully submitted in a format for electronic 
filing permitted under OHA procedures.
    (2) If the ALJ permits a party to file a written submission in 
paper format, the filing party must file the written submission with 
the ALJ or the OALJ by hand-delivery or regular mail.
    (b) Filing date. (1) The filing date for a written submission to an 
ALJ or the OALJ is the date the document is--
    (i) Submitted to OES; or
    (ii) Hand-delivered or mailed, if the ALJ has permitted the written 
submission to be filed in paper format.
    (2) If a scheduled filing date falls on a Saturday, Sunday, or 
Federal holiday, the filing deadline is the next business day.
    (c) Service to other parties. (1) The filing of a written 
submission to OES constitutes service on other parties.
    (2) If a party is permitted by the ALJ to file a written submission 
in paper format, the party must serve a copy of the written submission 
on the other party on the filing date by hand-delivery or regular mail. 
Any such written submission to the ALJ or OALJ must be accompanied by a 
statement certifying that the material was served on the other party on 
the filing date.

(Authority: 20 U.S.C. 1221e-3, 1234(f)(1), and 3474(a))


0
5. Section 81.20 is amended by revising paragraphs (b)(2), (3), (c) and 
(d) to read as follows:


Sec.  81.20  Interlocutory appeals to the Secretary from rulings of an 
ALJ.

* * * * *
    (b) * * *
    (2) A petition may not exceed 10 pages, double-spaced, and must be 
accompanied by a copy of the ruling and any findings and opinions 
relating to the ruling.
    (3)(i) The petition must be filed electronically, and served upon 
the ALJ and other parties, by submission to OES on behalf of the Office 
of the Secretary unless a party shows the Secretary good cause why the 
petition cannot be filed electronically.
    (ii) If the Secretary permits a party to file a petition in paper 
format, the filing party must file the petition with OHA on behalf of 
the Secretary by hand-delivery or regular mail. The filing party must 
provide a copy of the petition to the ALJ at the time the petition is 
filed, and a copy of the petition must be served upon the other parties 
by hand-delivery or regular mail.
    (c) If a party files a petition under this section, the ALJ may 
state to the Secretary a view as to whether review is appropriate by 
submitting a brief statement addressing the party's petition within 10 
days of the ALJ's receipt of the petition for interlocutory review. The 
ALJ must serve a copy of the statement on all parties by submission to 
OES and, if the Secretary has permitted paper filing, by hand-delivery 
or regular mail.
    (d)(1) A party's response, if any, to a petition or certification 
for interlocutory review must be filed within seven days after service 
of the petition or certification, and may not exceed 10 pages, double-
spaced, in length.
    (2) A copy of the response must be filed to OES unless the party 
shows the Secretary good cause why the response cannot be filed 
electronically. If the ALJ permits a party to file a petition in paper 
format, the filing party must file the petition with OHA on behalf of 
the Secretary by hand-delivery or regular mail.
    (3) If the Secretary has permitted a party to file the response in 
paper format, the party must file a copy of the response with the ALJ, 
and serve a copy of the response on all parties, on the filing date by 
hand delivery or regular mail.
* * * * *

0
6. Section 81.41 is amended by revising paragraph (c) to read as 
follows:


Sec.  81.41  Initial decision.

* * * * *
    (c) The OALJ transmits the initial decision to the Secretary and to 
the parties by submission to OES and, if filing in paper format was 
permitted by the ALJ, by certified mail, return receipt requested, or 
by another parcel service with delivery confirmation.
* * * * *

0
7. Section 81.42 is revised to read as follows:


Sec.  81.42  Petition for review of initial decision.

    (a)(1) If a party seeks to obtain the Secretary's review of the 
initial decision of an ALJ, the party must file a petition for review 
by submission to OES on behalf of the Office of the Secretary unless 
the party shows the ALJ good cause why the petition cannot be filed 
electronically.
    (2) If the ALJ permits a party to file a petition for review in 
paper format, the filing party must file the petition with the ALJ by 
hand-delivery or regular mail.
    (b) A party must file a petition for review not later than 30 days 
after the date it receives the initial decision. The party is deemed to 
have received the initial decision on the date the initial decision is 
uploaded to OES or, if filing in paper format was permitted by the ALJ, 
the party is deemed to have received the initial decision on the 
delivery date indicated by the certified mail or parcel delivery 
records.
    (c) Electronically filing a petition to OES for review constitutes 
service on the other party.
    (d) If the ALJ has permitted the petition to be filed in paper 
format, then--
    (1) The party must serve a copy of the petition on the other party 
on the filing

[[Page 52833]]

date by hand delivery or by ``overnight'' or ``express'' mail. If 
agreed upon by the parties, service of a copy of the petition may be 
made upon the other party by a method approved by the ALJ.
    (2) Any petition submitted under this section in paper format must 
be accompanied by a statement certifying the date that the petition was 
served on the other party.
    (e) A petition for review of an initial decision must--
    (1) Identify the initial decision for which review is sought; and
    (2) Include a statement of the reasons asserted by the party for 
affirming, modifying, setting aside, or remanding the initial decision 
in whole or in part.
    (f)(1) A party may respond to a petition for review of an initial 
decision by filing a statement of its views on the issues raised in the 
petition, as provided for in this section, not later than 15 days after 
the date it receives the petition.
    (2) If the ALJ has permitted the written submission to be filed in 
paper format, a party must serve a copy of its statement of views on 
the other party by hand delivery or mail and certify that it has done 
so pursuant to the provisions of paragraph (d) of this section.
    (g)(1) The filing date for petitions under this section is the date 
the document is--
    (i) Electronically filed; or
    (ii) Hand-delivered or mailed, if permitted to file in paper 
format.
    (2) If a scheduled filing date falls on a Saturday, Sunday, or a 
Federal holiday, the filing deadline is the next business day.

(Authority: 20 U.S.C. 1221e-3, 1234(f)(1), 1234a(e), and 3474(a))


0
8. Section 81.44 is amended by revising paragraph (b) to read as 
follows:


Sec.  81.44  Final decision of the Department.

* * * * *
    (b) If the Secretary modifies or sets aside the ALJ's initial 
decision, a copy of the Secretary's decision is provided to the parties 
by submission to OES. If the ALJ has permitted written submissions to 
be filed in paper format, the decision will be sent by certified mail, 
return receipt requested, or by another parcel service with delivery 
confirmation. The Secretary's decision becomes the final decision of 
the Department on the date it is electronically filed or, if sent via 
parcel delivery service, on the delivery date indicated by the 
certified mail or parcel delivery records.
* * * * *

(Authority: 20 U.S.C. 1221e-3, 1234(f)(1), 1234a(g), and 3474(a))


[FR Doc. 2021-20304 Filed 9-22-21; 8:45 am]
BILLING CODE 4000-01-P