[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Rules and Regulations]
[Pages 53863-53870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20992]
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DEPARTMENT OF EDUCATION
34 CFR Part 9
[Docket ID ED-2020-OGC-0150]
RIN 1801-AA22
Rulemaking and Guidance Procedures
AGENCY: Office of the General Counsel, Department of Education.
ACTION: Final regulations.
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SUMMARY: The Department of Education (Department) rescinds the
Department's Rulemaking and Guidance Procedures interim final rule
(IFR).
DATES: This rule is effective September 29, 2021.
FOR FURTHER INFORMATION CONTACT: Lynn Mahaffie, U.S. Department of
Education, 400 Maryland Avenue SW, Room 6E231, Washington, DC 20202.
Telephone: (202) 453-7862. 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:
Background: This regulatory action rescinds the Rulemaking and
Guidance Procedures IFR and removes 34 CFR part 9.
The Department published the IFR on October 5, 2020 (85 FR 62597),
to codify procedures relating to the issuance of rulemaking and
guidance documents. The IFR followed Executive Order 13891, ``Promoting
the Rule of Law Through Improved Agency Guidance Documents,'' issued on
October 9, 2019. 84 FR 55235. That Executive Order called for Federal
agencies, including the Department, to finalize or amend regulations to
set forth processes and procedures for issuing guidance documents,
consistent with the order. The IFR became effective on November 4,
2020. 85 FR 62597.
In the IFR, the Department established an internal process for the
Department's development of regulations, under which the Secretary
establishes a Regulatory Reform Task Force (RRTF), designates the
members of the RRTF, and identifies the Department's Regulatory Reform
Officer (RRO), in accordance with Executive Order 13777. 34 CFR 9.5.
Section 9.7 of the IFR describes steps that the Department
[[Page 53864]]
must engage in before developing a significant regulation, including
that the principal operating component (POC) proposing the regulation
prepare a Rulemaking Initiation Request that describes, for example,
the need for the regulation, the legal authority for the rulemaking,
whether the rulemaking is expected to be regulatory or deregulatory,
and whether it is expected to be significant, as defined by Executive
Order 12866. Both the Working Group and the Leadership Council of the
RRTF must review and approve the Rulemaking Initiation Request for the
action to move forward. Section 9.9(d) requires that the Department
review all significant regulations on a 10-year cycle to determine
whether they have, among other things, a continued policy justification
and a continued cost justification. Additionally, the IFR contains
special procedures for economically significant rules and high-impact
rules in Sec. 9.10. That section establishes a definition of the term
``high-impact'' rule and provides, for example, that the comment period
for high-impact rule will be at least 90 days and that, following the
publication of an NPRM for an economically significant or high-impact
rule, any interested party may request that the Department hold a
formal hearing on the proposed rule.
The IFR also established rules related to the publication of
guidance documents, expressing that the Department's policy is to
disfavor guidance except in special circumstances. 34 CFR 9.12. Section
9.14(c) requires that a POC proposing to issue a significant guidance
document prepare a Significant Guidance Document Initiation Request to
be reviewed by the Working Group and Leadership Council of the RRTF.
Additionally, unless the Department and Administrator of the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) agree that exigency, safety, health, or other
compelling cause warrants an exemption from some or all requirements,
upon approval of the Leadership Council of the RRTF, the Department
will issue a significant guidance document only after completing a 30-
day period of public notice and comment and approval by the Secretary
or the component head or by an official serving in an acting capacity
as either of the foregoing before issuance. Section 9.16 further
requires that the Department will provide a 30-day notice and comment
period before rescinding a significant guidance document and publish a
notice in the Federal Register announcing the rescission.
On January 20, 2021, the President issued Executive Order 13992
which revoked several other Executive orders, including Executive
Orders 13891 and 13777. 86 FR 7049. Executive Order 13992 directed
heads of agencies to promptly take steps to rescind any orders, rules,
regulations, guidelines, or policies, or portions thereof, implementing
or enforcing the revoked Executive Orders, as appropriate and
consistent with applicable law, including the Administrative Procedure
Act (APA), 5 U.S.C. 551 et seq. 86 FR 7049. The express purpose of
Executive Order 13992 is to equip Executive departments and agencies
with the flexibility to use robust regulatory action to effectively
address national priorities and tackle challenges, such as the
coronavirus disease 2019 (COVID-19) pandemic, economic recovery, racial
justice, and climate change.
Consistent with Executive Order 13992, the Department is exercising
its discretion to rescind the IFR. Since the issuance of the IFR, the
Department has developed and published many regulatory and guidance
documents under challenging circumstances. This experience has led us
to recognize that many of the procedures required by the IFR create
obstacles to the timely issuance of regulatory and guidance documents,
and we believe they do not benefit either the Department or the public.
While the goals of the IFR were to increase transparency, fairness,
and public participation, and strengthen the overall quality and
fairness of the Department's processes, we believe, based on our recent
experience and the public comments we received, that the IFR's
requirements regarding the regulatory and guidance processes will not
help the Department achieve those goals. Sections 9.6, 9.7 and 9.9
relate to the Department's internal procedures to initiate a
rulemaking. Those sections require the Department to establish an RRTF,
and set forth in detail the roles of the Working Group and Leadership
Counsel, as well as the roles of a number of individuals and offices
within the Department. In addition, they prescribe a formal process for
initiating a rulemaking and the Department's internal review process of
proposed rules. Those procedures are entirely internal to the
Department and will not increase transparency, fairness, or public
participation, nor do we believe that they will they strengthen the
overall quality and fairness of the Department's processes.
Additionally, we do not believe that the special procedures for
economically significant rules and high-impact rules will achieve the
goals of the IFR. Rather, they will likely benefit sophisticated
stakeholders, rather than students, children, and families. For
example, the procedures for formal hearings in Sec. 9.10(c) allow an
interested party to file a petition for a formal hearing on a proposed
economically significant or high-impact rule. As noted in public
comments in response to the IFR, well-financed and sophisticated
stakeholders will likely have an advantage over small organizations or
individuals when engaging in a formal hearing on complex regulatory
issues before a Department hearing official.
Although the provisions governing the Department's internal
processes for the approval and issuance of regulations and guidance
documents contain some flexibility when the Department is faced with
extraordinary circumstances (see, e.g., Sec. 9.14(h)(1)), we believe
that the provisions create unreasonable burdens on Department staff and
will slow the process of issuing regulatory and guidance documents
without improving the quality of the documents. Allowing the Department
to issue guidance documents that clarify its understanding of relevant
law and how it intends to use its discretionary authority without these
additional procedural hurdles imposed by the IFR will better allow it
to serve students, schools, and other stakeholders.
Some of the IFR's procedures involved the Department's Regulatory
Reform Task Force (RRTF) and regulatory reform officer (RRO), which
were established pursuant to Executive Order 13777. 82 FR 12285. That
Executive Order also was revoked by Executive Order 13992, which
specifically directed agencies to abolish RRTFs and RRO positions
established by Executive Order 13777. 86 FR 7049.
This rescission is responsive to public comments received on the
IFR. While most parties that submitted public comments in response to
the IFR requested that the Department rescind the IFR in its entirety,
we also address the specific reasons cited by commenters as justifying
rescission.
Public Comment: The IFR is an internal rule of agency procedure.
See 5 U.S.C. 553(a)(2), 553(b)(A).
Nonetheless, the Department invited public comments on the IFR to
allow members of the public to provide their input about the content of
the rule. In response to our invitation in the IFR, nine parties
submitted comments on the IFR. In this preamble, we respond to those
comments, which we have
[[Page 53865]]
grouped by subject. Generally, we do not address technical or other
minor changes.
Analysis of Public Comments: An analysis of the public comments
received follows.
General
Comment: The majority of commenters urged the Department to
withdraw the IFR in its entirety. In general, commenters noted that the
IFR creates burdensome requirements that will only delay critical
agency action and make government less responsive to the needs of
constituents. Commenters also argued that the IFR creates unreasonably
burdensome processes for issuing regulations and guidance, rather than
promoting fair process. One commenter noted that the Department already
has many steps in place that ensure that rulemaking is undertaken with
public input and in the public interest and that the IFR requires many
procedures that may create delays in implementation of student
protections and programmatic oversight.
Discussion: The Department agrees with the commenters that seek
rescission of the IFR. Consistent with Executive Order 13992, it is
crucial that the Department be able to issue and modify regulations and
guidance quickly, especially considering challenges such as those
caused by the COVID-19 pandemic. The procedures required in the IFR for
the initiation, modification, and withdrawal of rulemaking and guidance
documents hinder the Department from responding nimbly to the needs of
stakeholders. The APA and other laws applicable to the issuance of
rulemaking and guidance documents, including the Higher Education Act
of 1965, as amended (20 U.S.C. 1001, et seq.) (HEA); the Elementary and
Secondary Education Act of 1965, as amended (20 U.S.C. 6301, et seq.)
(ESEA); the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-
612); the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A));
Executive Order 12866; and OMB's Final Bulletin for Agency Good
Guidance Practices (Guidance Bulletin) published on January 25, 2007
(72 FR 3432), sufficiently ensure transparency and public participation
in the rulemaking and guidance processes.
Changes: The Department rescinds 34 CFR part 9.
Comments: Commenters expressed concern about the IFR's effect on
the Department's ability to effectively meet its mission as it relates
to students with disabilities. They stated that introducing obstacles
in the IFR for issuing regulations and guidance could not come at a
worse time, noting that students with disabilities and their families
have been particularly adversely affected by physical school closures
during the COVID-19 pandemic and remain in need of timely and
responsive guidance from the Department.
Commenters also noted that the Department has issued several
important guidance documents since the pandemic began to help schools
understand their ongoing obligations to students with disabilities,
such as question and answer documents related to COVID-19 that help
clarify the law during a time when States, districts, and families need
immediate information from the Department. The commenters stated that
the Department must continue to be able to do so in a timely and
efficient manner.
Discussion: The Department appreciates and agrees with the
commenters' observations about the effect the COVID-19 pandemic has had
on all students, especially students with disabilities. The Department
has learned how challenging it has been over the past year to
successfully respond to the needs of students and families that were
caused by the pandemic with the requirements of the IFR in place. To
ensure the needs of these students are met in the future, the
Department will continue to need to act timely and efficiently, and the
Department believes that the burdensome requirements of the IFR may
hinder its ability to do so.
Changes: The Department rescinds 34 CFR part 9.
Comments: One commenter supported the IFR, stating that the
Department's adoption of the procedures in the IFR signals that it is
invested in meaningful regulatory reform that will curb abuses of
administrative power.
Discussion: While the Department appreciates the comment, it does
not agree that there is abuse of administrative power in the
Department. Instead, the purpose behind the issuance of the IFR was to
provide a clear process by which the Department could engage in
rulemaking in a transparent manner with meaningful public input. After
further consideration, the Department agrees with most of the
commenters that the processes that it imposed were unduly burdensome
and unnecessary given the requirements of the APA, HEA, and ESEA, which
the Department follows, as applicable, and which require public input
when rulemaking.
Changes: The Department rescinds 34 CFR part 9.
Comments: Some commenters stated that the Department failed to
provide a meaningful opportunity for public input by issuing an IFR
instead of a notice of proposed rulemaking. One commenter stated that
there was no urgency that requires proceeding through an IFR and that
the COVID-19 pandemic warrants allowing more time for submission of
public comments and meaningful review. Another commenter questioned
whether the IFR qualifies as the kind of procedural rule that falls
within the APA's narrow exemption to notice-and-comment rulemaking, and
stated that, according to the criteria of the Administrative Conference
of the United States, the Department should allow for public comment on
all aspects of the rulemaking.
Discussion: The Department does not agree that it failed to provide
a meaningful opportunity for public input on the IFR. Although the
Department issued the IFR without first publishing proposed regulations
for public comment, it did invite public comment on the IFR and noted
that it would consider all comments in determining whether to revise
the regulations. Furthermore, as the IFR was a ``rule[ ] of agency . .
. procedure, or practice,'' the APA notice-and-comment rulemaking
requirements do not apply. 5 U.S.C. 553(b)(B). The exception for
procedural rules ``covers 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.'' JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994),
quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980). The
IFR contains requirements that govern the Department's internal
procedures and practices related to the issuance or regulatory and
guidance documents, as well as the procedures that the public must
follow to present their views to the Department, such as the processes
by which individuals may petition the Department to issue, amend, or
repeal a rule (Sec. 9.9(c)) or request the withdrawal or modification
of a guidance document or significant guidance document (Sec. 9.15).
The Department's rescission of the IFR's requirement to develop
significant guidance documents using notice-and-comment procedures
(Sec. 9.14(h)(1)) is also procedural because the APA contemplates that
such procedures are within the discretion of an agency to grant or lift
given that the APA excepts guidance documents from notice-and-comment
rulemaking requirements (see 5 U.S.C. 553(b)(A)).
Finally, notice-and-comment rulemaking requirements also do not
apply to regulations that involve a
[[Page 53866]]
``matter relating to agency management and personnel,'' 5 U.S.C.
553(a)(2). In addition to relating to agency procedure and practices,
many of the requirements in the IFR relate to agency management and
personnel, including the provisions governing the structure and
composition of the RRTF, Leadership Council and Working Group, those
outlining the responsibilities of individuals in various Department
positions, and the requirements describing the roles and obligations of
specific Department offices in the creation of regulatory and guidance
documents.
After considering all comments and Executive Order 13992, the
Department has decided to rescind the IFR altogether, consistent with
Executive Order 13992.
Changes: The Department rescinds 34 CFR part 9.
Policies (Sec. 9.4)
Comments: One commenter noted that the IFR contains problematically
vague language, such as Sec. 9.4(a)(2)(ii), which provides that
rulemaking interpretations must raise no ``major question.'' The
commenter expressed concern that the IFR does not define this term and
that invoking such undefined and controversial language is problematic.
Discussion: The Department appreciates the comment and also
believes that the term ``major question'' taken together with the
remaining portion of the sentence is unclear and problematic. The
Department is rescinding Sec. 9.4 as part of its rescission of the
IFR, and will rely on the APA, existing Executive Orders, and
established case law in determining when rulemaking is appropriate.
Changes: The Department rescinds 34 CFR part 9.
General rulemaking procedures (Sec. 9.9)
Comments: Some commenters recommended that the Department eliminate
Sec. 9.9(c), which provides that any interested person may petition
the Department to issue, amend, or repeal a rule or for an exemption
from a rule that authorizes a permanent or temporary exemption, or to
perform a retrospective review of an existing rule. Commenters argued
that this provision could lead to unnecessary delays, while empowering
industry in a process that is already heavily influenced by industry
without providing adequate weight to the interests of students and
consumers. Commenters stated that it was unclear how petitions will be
analyzed and ruled upon, and that, given the existing opportunities for
public input during regulatory processes, including through public
comment, hearings before negotiated rulemakings, and in negotiated
rulemaking sessions, it is not clear how this additional action will
advance rulemaking. Instead, commenters expressed concern that the IFR
will further skew the balance on behalf of industry and away from
students and consumers and increase the likelihood that bad-actor
institutions will be granted exemptions from having to follow the
rules.
Discussion: While the Department appreciates the commenters'
request to rescind Sec. 9.9(c) and believes it is necessary to rescind
the IFR in its entirety, the language in Sec. 9.9(c), in large part,
is mirrored in sections 553(e) and 555(e) of the APA and, therefore,
exists outside of this IFR.
We acknowledge the concerns about unequal access in the petition
process. In complying with the petition requirements established in the
APA, the Department intends to use a process that treats everyone
equitably and will continue to work to ensure we receive input from all
stakeholders, including students and consumers.
Changes: The Department rescinds 34 CFR part 9.
Comments: One commenter stated that Sec. 9.9(c) is inconsistent
with best practices as articulated in recommendations from the
Administrative Conference of the United States. The commenter noted
that the docket for petitions on regulations.gov is difficult for
unsophisticated petitioners to find and cited some potential technical
issues.
Discussion: We appreciate the commenter's concerns that the docket
for petitions on regulations.gov can be difficult for petitioners
unfamiliar with the site to find. The Department would like flexibility
to make changes to the petition process as new technologies and
procedures become available.
Changes: The Department rescinds 34 CFR part 9.
Comments: One commenter objected to the inclusion of Sec. 9.9(d)
providing that all significant Department regulations will be reviewed
on a 10-year cycle. The commenter stated that the requirement will
burden Department staff in unending process by requiring them to defend
existing regulations from repeal every 10 years. The commenter
contrasted the requirements of Executive Order 13563 (76 FR 3821),
issued on January 21, 2011, with the rule. Executive Order 13563
requires that Federal agencies, subject to resource constraints,
conduct a periodic review of significant regulations to determine
whether they should be changed, including whether they should be
broadened. The commenter contended that, in expanding upon the
requirement in the Executive order, the IFR established a backward-
looking process that will unnecessarily burden Department staff and
prevent them from pursuing work central to the Department's mission.
Discussion: The Department agrees with the commenters that
recommended rescission of the IFR, including this commenter's request
to rescind Sec. 9.9(d). A requirement for the Department to review all
significant Department regulations on a 10-year cycle does burden the
Department with a backward-looking process that takes time away from
the Department's ability to pursue work central to the Department's
mission. We note that, after this rescission, nothing prohibits the
Department from reviewing regulations on a case-by-case basis, to
assess whether they are achieving their intended goals. However, we
believe that doing so on a mandatory, fixed cycle for all regulations
is contrary to the goal of flexibility expressed in Executive Order
13992 and is not the best use of Department resources.
Changes: The Department rescinds 34 CFR part 9.
Comments: One commenter stated that the IFR is arbitrarily biased
in favor of deregulation and against full consideration of regulatory
benefits. As an example, the commenter noted that Sec. 9.9(e) provides
that deregulatory rulemakings will be assessed for cost savings but
fails to clarify that foregone benefits must also be assessed.
Additionally, Sec. 9.9(d)(2)(ii) requires that retrospective review
include a review of the cost justification to test whether the rule is
no longer net beneficial, but the IFR fails to provide for a review of
whether the net benefits of existing rules could be increased by
modifying the scope or structure of the regulation. Finally, in several
provisions, the IFR requires that the regulatory benefits must
``exceed'' or ``outweigh'' costs, when the appropriate language, as
articulated by Executive Order 12866, is that benefits should
``justify'' costs, which better allows analysts and decisionmakers to
give due weight to unquantified benefits.
Discussion: We agree with this commenter. We note that Executive
Order 13771, ``Reducing Regulation and Controlling Regulatory Costs,''
which emphasized cost considerations over benefits in rulemaking and
formed part of the basis for the IFR, as noted in Sec. 9.1(c), was
revoked by Executive Order 13992. Accordingly, consistent with
Executive Order 12866, in determining whether rulemaking is
appropriate, the Department will consider whether the benefits,
including unquantifiable
[[Page 53867]]
benefits, justify the costs of the proposed regulatory action,
consistent with OMB Circular A-4.\1\
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\1\ Office of Mgmt. & Budget, Exec. Office of the President,
Circular A-4, Regulatory Impact Analysis: A Primer 13 (Aug. 15,
2011), available at www.reginfo.gov/public/jsp/Utilities/circular-a-4_regulatory-impact-analysis-a-primer.pdf (discussing ``[b]enefits
and costs that are difficult to quantify'').
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Changes: The Department rescinds 34 CFR part 9.
Special procedures for economically significant rules and high-
impact rules (Sec. 9.10)
Comments: Some commenters urged the Department to eliminate Sec.
9.10(c), which contains procedures for an interested party to file a
petition for a formal hearing on a proposed rule following publication
of a notice of proposed rulemaking for an economically significant rule
or a high-impact rule that has not gone through negotiated rulemaking.
Commenters argued that the procedures empower industry in a process
that is already heavily influenced by industry without providing
adequate weight to students and consumers. Additionally, commenters
indicated that this process will delay the finalization of rules. One
commenter stated that formal rulemaking, including holding hearings, is
a defunct process that will inevitably delay rulemaking, has been shown
to be ineffective in empirical analyses by administrative law scholars,
and would disadvantage interested parties that do not have the
resources to hire attorneys. The commenter asserted that hearings are
doubly inappropriate after the Department has completed negotiated
rulemaking, as permitted under Sec. 9.10(c)(2)(ii), because Congress
structured the negotiated rulemaking process to ensure that all
impacted parties, including students, borrowers, and other
stakeholders, have a voice in the rulemaking process and have an
opportunity to respond to proposals and arguments. The commenter stated
that the additional hearings under the IFR would give resourced
industry lobby groups an unfair advantage in conveying their views to
the Department.
Another commenter stated that the special procedures for
economically significant and high-impact rulemakings create glaring and
problematic hurdles and that, in erecting these new obstacles, the IFR
fails to satisfy its own standard for clearly stating a demonstrated
need for the proposed regulation. The commenter also noted that the IFR
does not explain why the additional procedural hurdles are necessary or
beneficial and fails to consider the costs of these hurdles in terms of
delayed regulatory benefits.
Discussion: The Department appreciates and agrees with the
commenters' concerns regarding the special procedures for economically
significant and high-impact rulemakings. The Department appreciates the
concerns that these formal proceedings may present obstacles for some
stakeholders, including consumers and students. We also agree that the
special procedures could lead to unnecessary rulemaking delays and
inhibit regulatory flexibility. The Department believes that its
rulemaking procedures under the APA and its negotiated rulemaking
procedures under the HEA and ESEA provide ample and equitable
opportunity for stakeholders to provide the Department their views on
proposed regulations and that there is not a significant benefit to
requiring additional hearings. The Department agrees that the IFR
should be rescinded, including Sec. 9.10.
Changes: The Department rescinds 34 CFR part 9.
Guidance documents (Sec. 9.13)
Comments: Commenters argued that the guidance process established
in the IFR is overly burdensome, as agencies address more substantial
legal issues through rulemaking, which includes notice-and-comment
procedures. They noted that agencies may need to quickly issue guidance
so that beneficiaries of Federal services and grantees obtain
information that they need to perform services in accordance with the
law. The commenters noted that the Department has recognized the value
of regular subregulatory guidance, such as the Office for Civil Rights'
blog related to clarifications and explanations of the new Title IX
regulations. They contended that the IFR, which disfavors guidance
except in special circumstances and requires Department staff to
demonstrate a compelling operational need to issue new guidance,
wrongly presumes that guidance is almost always unnecessary.
Additionally, a commenter believed the inclusion of electronic
announcements and documents that set forth policies on technical issues
in the definition of ``guidance document'' in Sec. 9.13(a) will
inhibit administrative flexibility and slow the issuance of important
guidance and technical assistance documents. Further, they noted that
the requirement in Sec. 9.13(c) that all guidance be cleared by the
General Counsel will delay the Department's timely issuance of
guidance.
Discussion: We agree with commenters that it is important in some
circumstances for the Department to have the flexibility to issue
guidance quickly so that grantees and other stakeholders have the
information they need in a timely manner and that the requirements in
Sec. 9.13 related to the issuance of guidance are burdensome and could
cause excessive delays. For example, in recent months, the Department
has issued guidance documents to help schools and institutions of
higher education react to the pandemic and to make the best use of
COVID-19 relief funds. To be useful, this guidance needed to be issued
and modified quickly as circumstances changed. We recognize the value
of timely guidance and agree that the IFR's policy to disfavor guidance
except in special circumstances and the requirement that Department
staff demonstrate a compelling operational need to issue new guidance
creates an unreasonable presumption that guidance is almost always
unnecessary.
By rescinding the IFR, the Department will have the ability to
issue guidance, which may include technical assistance documents and
electronic announcements, more quickly when needed. Additionally, with
the rescission of the IFR, the Department will use an internal
clearance process that is appropriate for the nature and scope of the
guidance documents being issued.
Changes: The Department rescinds 34 CFR part 9.
Comments: A commenter asserted that requiring the disclaimer in
Sec. 9.13(b) stating that guidance documents are not legally binding
will likely foster confusion among constituencies. For example,
although they are not technically legally binding, guidance about the
Department's interpretation of court decisions or prioritizing certain
types of cases can significantly impact how stakeholders should comply
with existing law.
Discussion: We appreciate the commenter's concerns about the
disclaimer language in Sec. 9.13(b). By rescinding Sec. 9.13, as well
as all of part 9, the Department will have the flexibility to provide
information about guidance documents that is appropriate for the
intended audience and subject matter of the guidance.
Changes: The Department rescinds 34 CFR part 9.
Comments: One commenter asserted that Sec. 9.13(a)(9) will
unnecessarily create confusion for stakeholders by not considering
agency statements, such as responses from the Department to a
stakeholder's specific question, to be guidance documents unless they
offer an interpretation of the law. The commenter stated that not
including this type of communication in the
[[Page 53868]]
definition of ``guidance document'' is nonsensical, as a stakeholder's
question about a law's application to a specific circumstance
necessarily requires the Department to respond with its interpretation
of the relevant law. They said that the IFR's definition of the term
``guidance document'' introduces new confusion as to when parties can
turn to such guidance to ensure their actions comply with applicable
laws. The commenter expressed concern that the Department may be
inclined to provide indirect and unhelpful responses to questions from
stakeholders to avoid triggering the burdensome requirements for
developing guidance.
Discussion: The definition of ``guidance document'' in the IFR is
based on the definition of the same term in OMB's Guidance Bulletin,
which remains in effect. Under this definition, only agency statements
of general applicability that otherwise meet the definition constitute
guidance documents for purposes of the laws and procedures related to
guidance documents. If an agency statement in response to a specific
stakeholder question interprets a law, it may be generally applicable
if it is intended to apply to other stakeholders in the same or similar
circumstances. The Department continues to welcome questions from
stakeholders about their specific circumstances and strives to provide
responses that are as timely, direct, and helpful as possible in the
given circumstances. In responding to stakeholder questions, the
Department will determine whether its response is limited to that
stakeholder or whether it is of general applicability and better
provided to all stakeholders through its guidance procedures.
Changes: The Department rescinds 34 CFR part 9.
Comments: Commenters objected to the process for rescinding
guidance documents in Sec. 9.13(e), which states that all active
guidance documents will be available through the Department's guidance
portal and that documents that are not available in the portal are not
considered to be in effect. Commenters expressed concern that the IFR
does not address how the Department will select which guidance
documents will be in the portal, what issues the Department may
consider in withdrawing guidance, or how it must notify stakeholders
about public requests for withdrawal of guidance.
One commenter noted that advocates for students with disabilities
have opposed recent actions by the Department to rescind guidance, most
notably the rescission of the 2014 Dear Colleague Letter on the
Nondiscriminatory Administration of School Discipline. The commenter
recognized the guidance was not legally binding, but argued that the
guidance clarified regulatory requirements, and its rescission made the
obligations of States and school districts less clear.
One commenter suggested that the Department engage with
stakeholders to develop a process in which guidance documents are
comprehensively scrutinized so that a clear and compelling reason for
their removal is ascertained, and that such a process must be done in a
way that does not harm the interests of underserved communities or
advance the special interests of groups with political power.
Discussion: The Department evaluates guidance on an ongoing basis
to make sure that it is not outdated and that it accurately reflects
current Department policy. Where necessary, changes are made or
guidance is rescinded, in compliance with applicable law. The
Department is committed to ensuring that the public always has access
to the most current Department guidance. The guidance portal continues
to be available at: https://www2.ed.gov/policy/gen/guid/types-of-guidance-documents.html.
The public may contact the relevant office or contact person
specified in a guidance document to inquire about its status or raise
concerns. Generally, for guidance documents that are being rescinded
for policy reasons, where we are exercising our discretion, we use the
same method for rescinding the guidance document that we use for
issuing it. For example, if the guidance document was issued by posting
it to the program web page, we would notify the public of the
rescission through a posting to the same web page.
The Department believes that collaboration with stakeholders is
valuable; however, we are concerned that the process described by the
commenter would create unreasonable obstacles and impede the
Department's ability to quickly withdraw or modify guidance in response
to challenging circumstances or a change in law. We decline to adopt
this suggestion but recognize the importance of considering the
interests of different stakeholders when deciding to withdraw or modify
guidance and will seek stakeholder input as needed and when
practicable.
Changes: The Department rescinds 34 CFR part 9.
Significant guidance documents (Sec. 9.14)
Comments: Commenters objected to the procedures for the issuance of
significant guidance documents in Sec. 9.14(h), most significantly the
requirement for a period of public notice and comment. One commenter
stated that requiring a process that traditionally has been reserved
for only legally binding agency rules will needlessly burden a process
meant to be distinct from, and more responsive and flexible than,
rulemaking. According to the commenter, this requirement could cause
unnecessary delays, including for important question-and-answer
guidance documents that help clarify the law during such events as the
COVID-19 pandemic when States, districts, and families need immediate
information from the Department. Similarly, the commenter contended
that the IFR would prohibit the Department from quickly clarifying new
laws, such as the Coronavirus Aid, Relief, and Economic Security
(``CARES'') Act, as well as existing law, and hamper the Office for
Civil Rights and other offices in the Department from issuing
clarifying policy that could be considered significant because it
raises novel legal or policy issues arising out of legal mandates.
Discussion: Consistent with Executive Order 13992, we are
rescinding Sec. 9.14. Although we believe that a 30-day comment period
for guidance documents may be valuable in many instances, we believe
that requiring it in all circumstances would hinder the Department's
ability to provide stakeholders with timely information relating to new
and existing laws and requirements. Guidance, especially quick and
timely guidance, can serve an important purpose, because it can be
clearer and issued faster than case-by-case adjudication and is more
flexible than full notice-and-comment rulemaking, and also permits more
accessible, audience-tailored explanations. ``[I]nformal communications
between agencies and their regulated communities . . . are vital to the
smooth operation of both government and business.'' Indep. Equip.
Dealers Ass'n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004), and requiring
an agency ``to undertake notice and comment whenever it refines an
interpretation of its rules or statutory authorities would discourage
the agency from synthesizing and documenting helpful and reliable
advice.'' POET Biorefining, LLC v. Envtl. Prot. Agency, 970 F.3d 392,
408 (D.C. Cir. 2020).
Changes: The Department rescinds 34 CFR part 9.
Request for withdrawal or modification of guidance documents and
significant guidance documents (Sec. 9.15)
Comments: One commenter objected to Sec. 9.15, which provides a
process by
[[Page 53869]]
which members of the public may request the withdrawal or modification
of an existing guidance document or significant guidance document.
According to the commenter, this process would fail to deliver
meaningful transparency and public participation because it subjects
crucial guidance to Department review based on the whims of any
interest group, without any requirement that the Department notify and
work in collaboration with regulated entities and other stakeholders in
considering whether to grant a petition.
Discussion: Consistent with Executive Order 13992, we are
rescinding Sec. 9.15. We do not believe that it is necessary to have a
formal process for requests that the Department withdraw or modify
guidance or to require the Department to respond by a specific
deadline. Such a process could overburden the Department's resources
and hamper its ability to perform other needed activities in a timely
manner. The Department will continue to follow the procedures in the
Guidance Bulletin, under which an agency must establish and clearly
advertise on its website a means for the public to submit a request
electronically for issuance, reconsideration, modification, or
rescission of significant guidance documents.
Changes: The Department rescinds 34 CFR part 9.
Comments: One commenter approved of the Department's inclusion of a
process for challenging agency guidance documents in Sec. 9.15(a) but
stated that the IFR should also expressly provide for availability of
judicial review after the final disposition of a petition for
withdrawal or modification of guidance documents.
Discussion: The Department appreciates the commenter's suggestion
but declines to adopt it because we are rescinding Sec. 9.15(a) and
all of part 9, consistent with Executive Order 13992. Nonetheless,
consistent with the Guidance Bulletin, the Department provides on its
website a means for the public to comment on, and submit requests for
issuance, reconsideration, modification, or rescission of, significant
guidance documents. Specifically, each significant guidance document
provides an email link that allows members of the public to submit
questions or comments, including requests that the Department revise
the significant guidance document. Moreover, the public may submit
comments on, and make such requests with respect to, all other guidance
through the contact listed in the guidance document, and stakeholders
will continue to have all available legal remedies.
Changes: The Department rescinds 34 CFR part 9.
Rescinded significant guidance documents (Sec. 9.16)
Comments: Two commenters stated that Sec. 9.16(a), which provides
for a 30-day notice-and-comment period before the Department rescinds a
significant guidance document, as well as publication of a Federal
Register notice announcing any rescission, is unnecessary. According to
these commenters, a procedure for rescinding a guidance document should
not be any more difficult than the procedure in effect when the
guidance document was issued. They noted that case law adopts this
symmetrical approach in the analogous question of when notice and
comment is necessary to change an interpretation. Therefore, these
commenters contended, the IFR should only apply to significant guidance
documents that are issued after the date the IFR is effective, and
publication of a Federal Register notice announcing the rescission of
significant guidance should not be required when the issuance of
significant guidance does not require the same.
Discussion: Consistent with Executive Order 13992, we are
rescinding all of part 9, including Sec. 9.16. We agree with the
commenters that the IFR procedures are unnecessary and unduly
burdensome and that the procedures for rescission will be based on the
method by which the guidance was adopted, consistent with Perez v.
Mortg. Bankers Ass'n, 575 U.S. 92, 101 (2015), as well as other
relevant circumstances.
Changes: The Department rescinds 34 CFR part 9.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, OMB must determine whether this
regulatory action is ``significant'' and, if so, subject to the
requirements of the Executive order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect 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.
OMB has determined that this regulatory action is not a significant
regulatory action subject to review by OMB under section 3(f) of
Executive Order 12866.
We have also reviewed this action under Executive Order 13563,
which supplements and explicitly reaffirms the principles, structures,
and definitions governing regulatory review established in Executive
Order 12866. To the extent permitted by law, Executive Order 13563
requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) 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.
Executive Order 13563 (76 FR 3821), issued on January 18, 2011,
also requires an agency ``to use the best available techniques to
quantify anticipated present and future benefits and costs as
accurately as possible.'' OIRA has emphasized that these techniques may
include ``identifying changing future compliance costs that might
result from technological innovation or anticipated behavioral
changes.''
We are rescinding the IFR only on a reasoned determination that the
benefits would justify the costs. In choosing among alternative
regulatory approaches, we selected those approaches that would maximize
net benefits. Based on the analysis that
[[Page 53870]]
follows, the Department believes that this regulatory action is
consistent with the principles in Executive Order 13563.
We have also determined that this regulatory action would not
unduly interfere with State, local, and Tribal governments in the
exercise of their governmental functions.
Costs and Benefits
In accordance with Executive Order 13563, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The Department does not
anticipate any potential costs associated with the rescission of the
IFR, while the potential benefits are significant. The rescission of
the IFR will benefit the public by allowing the Department to respond
quickly to the needs of students, school districts, and other
stakeholders by issuing regulations and guidance to clarify legal
requirements. In addition, there will be cost savings associated with
the rescission based on the removal of the additional procedural
requirements on the Department that were required by the IFR, such as
that it engage in additional public hearings and perform more frequent
retrospective reviews of agency regulations. The Department believes
that the benefits that were identified in the IFR, including providing
transparency and performing a comprehensive analysis of each regulatory
action, ensuring that the public is subject only to rules imposed
through statutes and regulations, and providing the public with fair
notice of their obligations will be achieved through existing agency
processes pursuant to existing law, such as the APA, HEA, ESEA,
Regulatory Flexibility Act, Paperwork Reduction Act, and Guidance
Bulletin.
As explained under Paperwork Reduction Act of 1995, there are no
information collection requirements associated with this regulatory
action.
Regulatory Flexibility Act Certification
Because the IFR is an internal rule of agency procedure, see 5
U.S.C. 553(a)(2), 553(b)(A), notice-and-comment rulemaking is not
necessary to rescind the IFR. As a result, the Regulatory Flexibility
Act (Pub. L. 96-354, 5 U.S.C. 601-612) does not apply.
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and respondent
burden, the Department provides the general public and Federal agencies
with an opportunity to comment on proposed and continuing collections
of information, in accordance with the Paperwork Reduction Act of 1995
(44 U.S.C. 3506(c)(2)(A)). This helps ensure that the public
understands the Department's collection instructions; respondents can
provide the requested data in the desired format; reporting burden
(time and financial resources) is minimized; collection instruments are
clearly understood; and the Department can properly assess the impact
of collection requirements on respondents.
Because we are rescinding 34 CFR part 9, there are no associated
information collection requirements.
Accessible Format: On request to the program 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 other 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 PDF. To use PDF, you must have
Adobe Acrobat Reader, which is available for free on 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 your search to documents published
by the Department.
List of Subjects in 34 CFR Part 9
Administrative practice and procedure.
Miguel A. Cardona,
Secretary of Education.
PART 9--[REMOVED]
0
Accordingly, for the reasons discussed in the preamble and under the
authority of 20 U.S.C. 1221e-3, the Secretary removes 34 CFR part 9.
[FR Doc. 2021-20992 Filed 9-28-21; 8:45 am]
BILLING CODE 4000-01-P