Rulemaking and Guidance Procedures, 62597-62609 [2020-20799]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 85, Number 193 (Monday, October 5, 2020)]
[Rules and Regulations]
[Pages 62597-62609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20799]


=======================================================================
-----------------------------------------------------------------------

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: Interim final regulations.

-----------------------------------------------------------------------

SUMMARY: The Department of Education (Department) issues these interim 
final regulations to codify procedures relating to the issuance of 
rulemaking and guidance documents. These regulations implement an 
Executive order entitled ``Promoting the Rule of Law Through Improved 
Agency Guidance Documents,'' issued on Oct. 9, 2019, whose central 
principles are transparency and the presumption that guidance documents 
only clarify existing legal obligations and may not become a vehicle 
for implementing new, binding requirements on stakeholders or the 
public. In addition, these, these regulations outline how the 
Department will develop rules and the circumstances under which it will 
do so.

DATES: 
    Effective date: These regulations are effective November 4, 2020.
    Comment due date: We must receive your comments on or before 
November 4, 2020.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or by postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
    If you are submitting comments electronically, we strongly 
encourage you to submit any comments or attachments in Microsoft Word 
format.

[[Page 62598]]

If you must submit a comment in Adobe Portable Document Format (PDF), 
we strongly encourage you to convert the PDF to print-to-PDF format or 
to use some other commonly used searchable text format. Please do not 
submit the PDF in a scanned format. Using a print-to-PDF format allows 
the Department to electronically search and copy certain portions of 
your submissions.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``Help.''
     Postal Mail, Commercial Delivery, or Hand Delivery: The 
Department strongly encourages commenters to submit their comments 
electronically. However, if you mail or deliver your comments about the 
interim final regulations, address them to: Lynn Mahaffie, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 6E231, 
Washington, DC 20202.
    Privacy Note: The Department's policy is to make comments received 
from members of the public available for public viewing on the Federal 
eRulemaking Portal at www.regulations.gov. Therefore, commenters should 
include in their comments only information that they wish to make 
publicly available.

FOR FURTHER INFORMATION CONTACT: 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 
(800) 877-8339.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: Although the Department has decided to issue 
these interim final regulations without first publishing proposed 
regulations for public comment due to their procedural nature, we are 
interested in whether you think we should make any changes in these 
regulations. We invite your comments. We will consider these comments 
in determining whether to revise the regulations.
    To ensure that your comments may be most effectively considered, we 
urge you to clearly identify the specific section or sections of the 
interim final regulations that each comment addresses and to arrange 
your comments in the same order as the interim final regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
interim final regulations. Please let us know of any further ways by 
which we could reduce potential costs or increase potential benefits 
while preserving the effective and efficient administration of the 
Department's programs and activities.
    During and after the comment period, you may inspect all public 
comments about these interim final regulations by accessing 
www.regulations.gov. Due to the current COVID-19 public health 
emergency, the Department buildings are not open to the public. 
However, upon reopening, you may also inspect the comments in person at 
400 Maryland Avenue SW, Washington, DC 20202, between 8:30 a.m. and 
4:00 p.m., Eastern Time, Monday through Friday of each week except 
Federal holidays. To schedule a time to inspect comments, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for these interim final regulations. To 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Background

    Through this interim final rule, the Department establishes a 
comprehensive set of policies and procedures that will increase 
transparency, provide for more robust public participation, and 
strengthen the overall quality and fairness of the Department's 
processes for issuing regulatory and guidance documents. The 
regulations implement Executive Order 13891, issued on Oct. 9, 2019 (84 
FR 55235), which requires Federal agencies, including the Department, 
to publish regulations that set forth processes and procedures for 
issuing guidance documents. In addition, the Department is taking this 
opportunity to describe how and under what circumstances it develops 
regulations.

Rulemaking Procedures

    The procedures contained in this interim final rule apply to all 
phases of the Department's rulemaking process. The interim final rule 
outlines the Department's regulatory policies, such as avoiding 
excessive regulation and ensuring that, where they impose burdens, 
regulations are narrowly tailored to address identified market failures 
or statutory mandates, and that they specify performance objectives 
when appropriate.
    This interim final rule reflects the existing role of the 
Department's Regulatory Reform Task Force in the development of the 
Department's regulatory portfolio and ongoing review of regulations. 
Established in response to Executive Order 13777, ``Enforcing the 
Regulatory Reform Agenda,'' issued on Feb. 24, 2017 (82 FR 12285), the 
Regulatory Reform Task Force is the Department's internal body, chaired 
by its Regulatory Reform Officer, tasked with evaluating proposed and 
existing regulations and making recommendations to the Secretary of 
Education regarding their promulgation, repeal, replacement, or 
modification, consistent with applicable law.
    This interim final rule also prescribes the procedures the 
Department must follow for all stages of the rulemaking process, 
including the initiation of new rulemakings, the development of 
economic analyses, the contents of rulemaking documents, their review 
process, and the opportunity for public participation. The interim 
final rule also reflects the Department's existing policies regarding 
contacts with outside parties during the rulemaking process as well as 
the ongoing review of existing regulations.
    Consistent with the Department's regulatory philosophy that rules 
imposing the greatest costs on the public should be subject to 
heightened procedural requirements, this interim final rule 
incorporates the Department's enhanced procedures for economically 
significant and high-impact rulemakings. Consistent with section 3(f) 
of Executive Order 12866, issued on Sept. 30, 1993 (58 FR 51735), 
``economically significant'' rulemakings are defined as those rules 
that may result in an annual effect on the economy of $100 million or 
more. ``High-impact'' rulemakings would result in a total annualized 
cost to the U.S. economy of $500 million or more, or a total net loss 
of at least 250,000 full-time jobs in the United States over 5 years. 
These costly rulemakings may be subject to enhanced rulemaking 
procedures, such as formal hearings.

[[Page 62599]]

    In addition to formalizing the process for petitions for 
rulemaking, the new procedures will explicitly allow members of the 
public to file petitions requesting that the Department conduct a 
retrospective regulatory review of existing regulations and guidance.

Guidance Procedures

    Executive Order 13891 defines the terms ``guidance document'' and 
``significant guidance document'' and requires that agency regulations 
issued pursuant to that Executive order be consistent with the order 
and include--
    (a) A requirement that each guidance document clearly state that it 
does not bind the public, except as authorized by law or as 
incorporated into a contract;
    (b) Procedures for the public to petition for the withdrawal or 
modification of a particular guidance document; and
    (c) For a significant guidance document, as determined by the 
Administrator of the Office of Management and Budget's (OMB) Office of 
Information and Regulatory Affairs (OIRA or Administrator), provisions 
requiring--
    (1) A period of public notice and comment of at least 30 days 
before issuance of a final guidance document, and a public response 
from the agency to major concerns raised in comments, except when the 
agency for good cause finds that notice and public comment thereon are 
impracticable, unnecessary, or contrary to the public interest;
    (2) Approval on a non-delegable basis by the agency head or by an 
agency component head appointed by the President, or by an official who 
is serving in an acting capacity as either of the foregoing roles 
before issuance;
    (3) Review by OIRA under Executive Order 12866, before issuance; 
and
    (4) Compliance with the applicable requirements for regulations or 
rules, including significant regulatory actions, set forth in Executive 
Orders 12866, 13563, 13609, 13771, and 13777.
    The interim final regulations address each of the requirements of 
Executive Order 13891, and incorporate policies described in OMB 
Memorandum M-20-02 (Memo M-20-02), issued on Oct. 31, 2019, which 
implements the order.
    The Department published a notice in the Federal Register to inform 
the public of the location of its guidance portal, https://www2.ed.gov/policy/gen/guid/types-of-guidance-documents.html, on Feb. 26, 2020 (85 
FR 11056). The Department's guidance portal is a single, searchable 
database that contains or links to all guidance documents in effect 
from all offices in the Department.

Waiver of Proposed Rulemaking

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on a proposed rule. 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)(A). This rule is 
a procedural rule for which notice and comment rulemaking is not 
required. Nonetheless, the Department is issuing an interim final rule 
instead of a final rule to allow the members of the public to provide 
their input about the content of the rule. We anticipate issuing a 
final rule after reviewing and considering public comment, if any 
substantive public comments are received.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
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.
    Under Executive Order 13771, issued on Jan. 30, 2017 (82 FR 9339), 
for each new regulation that the Department proposes for notice and 
comment, or otherwise promulgates, that is a significant regulatory 
action under Executive Order 12866 and that imposes total costs greater 
than zero, it must identify two deregulatory actions. For FY 2020, any 
new incremental costs associated with a significant regulatory action 
must be fully offset by the elimination of existing costs through 
deregulatory actions. Because this regulatory action is not 
significant, the requirements of Executive Order 13771 do not apply.
    We have also reviewed these regulations under Executive Order 
13563, issued on Jan. 18, 2011 (76 FR 3821), 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.
    Section 1(c) of Executive Order 13563 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 issuing these interim final regulations only on a reasoned 
determination that their benefits would justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that would maximize net benefits. Based on the analysis that 
follows, the Department believes that these regulations are

[[Page 62600]]

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 Orders 13563 and 13771, the Department 
has assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from the requirements 
of Executive Order 13891 and those we have determined are necessary for 
administering the Department's programs and activities, that is, 
additional public hearings, more comprehensive impact analyses, and 
more frequent retrospective reviews. These interim final regulations 
will benefit the public by--(1) providing increased transparency and 
more comprehensive analysis of each regulatory action; (2) ensuring 
that the public is subject to only those binding rules imposed through 
duly enacted statutes or through regulations lawfully promulgated to 
implement them; and (3) providing the public with fair notice of their 
obligations. The interim final regulations make clear that the 
Department will treat guidance documents as non-binding both in law and 
in practice, except as authorized by law or as incorporated into a 
contract, take public input into account in formulating significant 
guidance documents, and make guidance documents readily available to 
the public. The Department may impose legally binding requirements on 
the public only through regulations, and on parties on a case-by-case 
basis through adjudications, and only after appropriate process, except 
as authorized by law or as incorporated into a contract.
    The potential costs associated with the interim final regulations 
are, at the most, minimal, while the potential benefits are 
significant. As explained below, there are no information collection 
requirements associated with these regulations under the Paperwork 
Reduction Act of 1995.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these interim final 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the interim final regulations 
clearly stated?
     Are the implications and impacts of the interim final 
regulation clearly stated?
     Do the interim final regulations contain technical terms 
or other wording that interferes with their clarity?
     Does the format of the interim final regulations (grouping 
and order of sections, use of headings, paragraphing, etc.) aid or 
reduce their clarity?
     Would the interim final regulations be easier to 
understand if we divided them into more (but shorter) sections? (A 
``section'' is preceded by the symbol ``Sec.  '' and a numbered 
heading; for example, ``Sec.  9.1 Purpose.''.)
     Could the description of the interim final regulations in 
the SUPPLEMENTARY INFORMATION section of this preamble be more helpful 
in making the interim final regulations easier to understand? If so, 
how?
     What else could we do to make the interim final 
regulations easier to understand?
    To send any comments that concern how the Department could make 
these interim final regulations easier to understand, see the 
instructions in the ADDRESSES section.

Regulatory Flexibility Act Certification

    Because notice-and-comment rulemaking is not necessary for this 
interim rule, 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 
(PRA) (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.
    The interim final regulations do not contain any information 
collection requirements.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (such as braille, large print, 
audiotape, or compact disc) on request to the person listed under FOR 
FURTHER INFORMATION CONTACT.
    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.

Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary adds part 
9 to title 34 of the Code of Federal Regulations as follows:

PART 9--ADMINISTRATIVE RULEMAKING AND GUIDANCE PROCEDURES

Sec.
Subpart A--General Provisions
9.1 Purpose.
9.2 References.
9.3 Applicability.
Subpart B--Rulemaking Authority
9.4 Policies.
9.5 Responsibilities.
9.6 Regulatory Reform Task Force.
9.7 Initiating a rulemaking.
9.8 Unified Agenda of Regulatory and Deregulatory Actions.
9.9 General rulemaking procedures.
9.10 Special procedures for economically significant rules and high-
impact rules.
9.11 Public contacts in informal rulemaking.
Subpart C--Guidance Document Procedures
9.12 Policy.
9.13 Guidance documents.
9.14 Significant guidance documents.
9.15 Request for withdrawal or modification of guidance documents 
and significant guidance documents.
9.16 Rescinded significant guidance documents.
Subpart D--Miscellaneous Provisions
9.17 Policy updates and revisions.

[[Page 62601]]

9.18 Disclaimer.

    Authority:  20 U.S.C. 1221e-3.

Subpart A--General Provisions


Sec.  9.1   Purpose.

    This part sets forth policies and procedures governing the 
development and issuance of regulations and guidance documents by the 
Department of Education (Department). The regulations in this part are 
intended to ensure that the Department adheres to--
    (a) Constitutional and statutory requirements applicable to 
Department rulemaking, including the rulemaking provisions of the 
Administrative Procedure Act, referenced in Sec.  9.2;
    (b) Controlling Supreme Court decisions;
    (c) Executive Orders 12866, 13771, 13777, and 13891, and any 
amendments thereto;
    (d) All applicable Office of Management and Budget (OMB) directives 
for rulemaking; and
    (e) Best practices for rulemaking, including best practices for 
economic analyses and for appropriate outreach to interested parties 
throughout the rulemaking process.


Sec.  9.2   References.

    (a) U.S. Const., including art. I sections 7, 8; art. II section 3. 
U.S. Const. amend. I and V.
    (b) Administrative Procedure Act (APA), 5 U.S.C. 552(a)(l), 553, 
556, 555, and 557, which prescribe general procedural requirements of 
law applicable to all Federal agencies regarding the formulation and 
issuance of regulations.
    (c) Controlling Supreme Court decisions, including Bostock v. 
Clayton Cnty., 140 U.S. 1731 (2020); Kisor v. Wilkie, 139 S. Ct. 2400 
(2019); Dimya v. Sessions, 138 S. Ct. 1204 (2018); Nat'l Ass'n of Mfrs. 
v. Dep't of Def., 138 S. Ct. 617 (2018); Yates v. United States, 574 
U.S. 528 (2015); Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014); 
City of Arlington v. FCC, 569 U.S. 290 (2013); FCC v. Fox Television 
Stations, Inc., 567 U.S. 239 (2012); Christopher v. SmithKline Beecham 
Corp., 567 U.S. 142 (2012); Nat'l Ass'n of Homebuilders v. Defenders of 
Wildlife, 551 US 644 (2007); United States v. Mead Corp., 533 U.S. 218 
(2001); and Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 
U.S. 837 (1984).
    (d) Executive Order 12866, ``Regulatory Planning and Review'' 
(Sept. 3, 1993), which sets forth a regulatory philosophy and 
principles to which all Federal agencies should adhere, including 
requirements to regulate in the most cost-effective manner, to make a 
reasoned determination that the benefits of the intended regulations 
justify its costs, and to develop regulations that impose the least 
burden on society.
    (e) Executive Order 13891, ``Promoting the Rule of Law Through 
Improved Agency Guidance Documents'' (Oct. 9, 2019), which provides 
direction to agencies on the use of guidance documents and directs them 
to publish regulations that set forth processes and procedures for 
issuing guidance documents.


Sec.  9.3   Applicability.

    (a) This part governs all Department employees and contractors 
involved with any phase of rulemaking or guidance at the Department.
    (b) Unless otherwise required by statute, this part applies to all 
Department regulations, which include all rules of general 
applicability promulgated by the Department that affect the rights or 
obligations of persons outside the Department, including substantive 
rules, interpretive rules, and rules prescribing agency procedures and 
practice requirements applicable to outside parties. This part applies 
to all regulatory actions intended to lead to the promulgation of a 
rule and any other generally applicable directives, circulars, or 
pronouncements that are intended to have the force or effect of law or 
that are required by statute to satisfy the rulemaking procedures 
specified in 5 U.S.C. 553 or 556.
    (c) This part does not apply to the following:
    (1) Any rulemaking in which a draft notice of proposed rulemaking 
was submitted to OMB before November 4, 2020.
    (2) Rules addressed solely to internal agency management or 
personnel matters.
    (3) Regulations related to Federal Government procurement and 
grants.
    (4) Adjudications and investigations.
    (5) Pleadings, briefs, and other filings in court or administrative 
proceedings.

Subpart B--Rulemaking Authority


Sec.  9.4   Policies.

    The following policies govern the development and issuance of 
regulations at the Department:
    (a) Statutory text, read plainly and construed according to its 
ordinary public meaning at the time of enactment, authoritatively 
prescribes both the Department's power to act and how it may act. In 
connection with rulemaking, the threshold question for the Department 
is whether Congress has directly authorized the proposed action, based 
on the principle that Congress knows to speak in plain terms when it 
wishes to enlarge agency authority and when it wishes to circumscribe 
it. If, after exhausting all traditional rules of construction, the 
Department fairly determines a given statute is ambiguous, then it may 
exercise its interpretative authority and engage in rulemaking, but 
only after--
    (1) Determining Congress has expressly delegated definitional and 
interpretative regulatory authority with respect to a given statute or 
provision; or
    (2)(i) Given the agency's general rulemaking authority in 410 of 
the General Education Provisions Act (GEPA) (20 U.S.C. 1221e-3) and 
section 414 of the Department of Education Organization Act (DEOA) (20 
U.S.C. 3474), determining Congress has impliedly delegated definitional 
and interpretative regulatory authority through, e.g., ambiguous 
language; and
    (ii) Determining the interpretative issue presents no ``major 
question'' nor other circumstances supporting the inference that 
Congress did not intend the Department to decide the question.
    (b) In considering whether to propose a regulation, policymakers at 
the Department will consider whether the specific problem to be 
addressed requires agency action, whether existing rules have created 
or contributed to the problem and should be revised or eliminated, and 
whether there are any other reasonable alternatives that obviate the 
need for a new regulation.
    (c) All regulations must be authorized by statute, consistent with 
the Constitution, and promulgated in accordance with the Administrative 
Procedure Act.
    (d) The Department must base the regulations on the best available 
evidence and data, and comply with all relevant laws, including the 
Information Quality Act, 44 U.S.C. 3516, note; the Foundations for 
Evidence-Based Policymaking Act of 2018, Public Law 115-435, 132 Stat. 
5529; and OMB's ``Guidelines for Ensuring and Maximizing the Quality, 
Objectivity, Utility, and Integrity of Information Disseminated by 
Federal Agencies'' (Feb. 22, 2002).
    (e) The Department should write its regulations clearly and in 
plain language, consistent with Executive Order 13563.
    (f) Regulations should minimize burdens where feasible. Where they 
impose burdens, the Department should narrowly tailor regulations to 
address the identified specific problem in a manner that maximizes net 
benefits.

[[Page 62602]]

    (g) Unless required by law, the Department should issue regulations 
only when it expects their benefits to exceed their costs, recognizing 
that some costs and benefits are difficult to quantify.
    (h) Once issued, the Department should periodically review and 
revise regulations and other agency actions to ensure that they remain 
net-beneficial and continue to meet the needs that they sought to 
address.
    (i) Full public participation should be encouraged in rulemaking 
actions, primarily through engagement in public meetings, written 
comment, and, where required or otherwise appropriate, negotiated 
rulemaking.
    (j) The process for issuing a rule must allow for proper 
consideration of the economic impact of the rule; thus, the 
promulgation of rules that are expected to impose greater economic 
costs should be accompanied by additional procedural protections and 
additional avenues for public participation.


Sec.  9.5   Responsibilities.

    (a) The Secretary of Education (Secretary) supervises the overall 
planning, direction, and control of the Department's Regulatory Agenda; 
approves regulatory documents for issuance and submission to OMB under 
Executive Order 12866; identifies an approximate regulatory budget for 
each fiscal year as required by Executive Order 13771; establishes the 
Department's Regulatory Reform Task Force (RRTF); and designates the 
members of the RRTF and the Department's Regulatory Reform Officer 
(RRO) in accordance with Executive Order 13777.
    (b) The RRO of the Department assists the Secretary in overseeing 
the overall planning, direction, and control of the Department's 
Regulatory Agenda and approves the initiation of regulatory action, as 
defined in Executive Order 12866, by the Department and its principals. 
The RRO also serves as the Chair of the Leadership Council of the RRTF.
    (c) The RRO of the Department is delegated authority by the 
Secretary to oversee the implementation of the Department's regulatory 
reform initiatives and policies to ensure the effective implementation 
of regulatory reforms, consistent with Executive Order 13777 and 
applicable law. The RRO shall be responsible for ensuring the 
Department complies with this part, including but not limited to 
Sec. Sec.  9.1 and 9.4, in all respects.
    (d) The General Counsel of the Department is the chief legal 
officer of the Department, with final authority for providing legal 
assistance to the Secretary concerning the programs and policies of the 
Department and serves on the Leadership Council of the RRTF. The 
General Counsel shall closely assist the RRO in ensuring that the 
Department complies with this part, including but not limited to 
Sec. Sec.  9.1 and 9.4, in all respects.
    (e) The Department's Deputy General Counsel with responsibility for 
supervision of the Division of Regulatory Services (DRS) of the Office 
of the General Counsel (OGC) is a member of the RRTF as designated by 
the Secretary, serves as the Department's Regulatory Policy Officer 
(RPO) pursuant to section 6(a)(2) of Executive Order 12866, and chairs 
the RRTF Working Group.
    (f) Except as otherwise agreed by senior agency officials due to 
exceptional circumstances, subject to the oversight of the General 
Counsel and Deputy General Counsel with responsibility for supervision 
of DRS, the Department's Assistant General Counsel for Regulatory 
Services supervises DRS within OGC; oversees the process for 
rulemaking; provides legal advice on compliance with all APA and other 
administrative law requirements and with Executive orders, OMB 
directives, and other regulatory procedures; circulates regulatory 
documents for departmental review and seeks concurrence from reviewing 
officials; submits significant regulatory documents to the Secretary 
for approval before issuance or submission to OMB; coordinates with the 
Office of Information and Regulatory Affairs (OIRA) within OMB on 
OIRA's designation and review of regulatory documents and the 
preparation of the Unified Agenda of Regulatory and Deregulatory 
Actions; and serves as a member of the RRTF Working Group.
    (g) DRS attorneys will serve as Regulatory Quality Officers 
designated by the Regulatory Reform Officer who will have 
responsibility for reviewing all rulemaking documents for plain 
language, technical soundness, compliance with the provisions of this 
part, and general quality.


Sec.  9.6   Regulatory Reform Task Force.

    (a) Purpose. The RRTF evaluates proposed and existing regulations 
and makes recommendations to the Secretary regarding their 
promulgation, repeal, replacement, or modification, consistent with 
applicable law and Executive Orders 12866, 13771, and 13777.
    (b) Structure. The RRTF is comprised of a Working Group and a 
Leadership Council.
    (1) The Working Group coordinates with the RRO and the applicable 
offices within the Department (referred to as Principal Operating 
Components (POCs) in this part), reviews and develops recommendations 
for regulatory and deregulatory action, and presents recommendations to 
the Leadership Council.
    (2) The Leadership Council reviews the Working Group's 
recommendations and advises the Secretary.
    (c) Membership. (1) The Working Group comprises the following:
    (i) The RPO, who will serve as Chair of the Working Group.
    (ii) The Assistant General Counsel for DRS.
    (iii) Other agency officials from POCs, as determined by the RRO.
    (2) The Leadership Council comprises the following:
    (i) The RRO, who serves as Chair.
    (ii) The Department's General Counsel.
    (iii) The Department's RPO.
    (iv) The Department's Assistant Secretary, Office of Planning, 
Evaluation and Policy Development (OPEPD).
    (v) Any additional senior agency officials as determined by the 
Secretary.
    (d) Functions and responsibilities. In addition to the functions 
and responsibilities enumerated in Executive Order 13777, the RRTF 
performs the following duties:
    (1) Reviews each request for a new rulemaking action initiated by a 
POC.
    (2) Considers each proposed or final regulation and regulatory 
policy question referred to it and makes a recommendation to the 
Secretary for its disposition.
    (e) Support. DRS provides support to the RRTF.
    (f) Meetings. The Leadership Council meets quarterly, or as needed, 
and will hold specially scheduled meetings when necessary to address 
particular regulatory matters. The Working Group meets monthly, or as 
needed, and may establish subcommittees, as appropriate, to focus on 
specific regulatory matters.


Sec.  9.7   Initiating a rulemaking.

    (a) Before a POC may proceed to develop a significant proposed 
regulation (e.g., an advanced notice of proposed rulemaking, notice of 
proposed rulemaking (NPRM), or interim final rule), the POC must 
consider the regulatory philosophy and principles of regulation 
identified in section 1 of Executive Order 12866 and the policies set 
forth in Sec.  9.4. If the POC head determines, after consultation with 
OGC and the Office of Budget Service, that rulemaking is warranted 
consistent with those policies and principles, the

[[Page 62603]]

POC may prepare a Rulemaking Initiation Request.
    (b) The Rulemaking Initiation Request should specifically state or 
describe--
    (1) A proposed title for the rulemaking;
    (2) The need for the regulation, including a description of any 
statutory mandate necessitating the rulemaking;
    (3) The legal authority for the rulemaking;
    (4) Whether the rulemaking is expected to be regulatory or 
deregulatory;
    (5) Whether the rulemaking is expected to be significant, as 
defined by Executive Order 12866;
    (6) Whether the final rule is expected to be an economically 
significant rule or a high-impact rule, as defined in Sec.  9.10;
    (7) A general description of the expected economic impact 
associated with the rulemaking, including whether the rulemaking is 
likely to generate benefits, impose costs, or generate cost savings;
    (8) A description of any scientific, technical, economic, or other 
information or evidence relied on or needed to inform rulemaking;
    (9) The tentative target dates for completing each stage of the 
rulemaking; and
    (10) Whether there is a statutory or judicial deadline, or some 
other urgency, associated with the rulemaking.
    (c) The POC submits the Rulemaking Initiation Request to the RPO 
and Assistant General Counsel for DRS, together with any other 
documents that may assist in the RRTF's consideration of the request.
    (d) The RPO includes the Rulemaking Initiation Request on the 
agenda for consideration at the next Working Group meeting.
    (e) The Working Group forwards the Rulemaking Initiation Request to 
the Leadership Council and provides the Leadership Council with a 
recommendation.
    (f) The POC requests that DRS assign a Regulatory Information 
Number (RIN) to the rulemaking only upon the Leadership Council's (or 
RRO's) approval of the Rulemaking Initiation Request.
    (g) Rulemaking Initiation Requests will be considered on a rolling 
basis; however, as applicable, DRS will establish deadlines for 
submission of Rulemaking Initiation Requests so that new rulemakings 
may be included in the Unified Agenda of Regulatory and Deregulatory 
Actions.


Sec.  9.8   Unified Agenda of Regulatory and Deregulatory Actions.

    (a) The Unified Agenda of Regulatory and Deregulatory Actions 
(Unified Agenda) provides uniform reporting of data on regulatory and 
deregulatory activities under development throughout the Federal 
Government. The Department participates in the Unified Agenda.
    (b) Fall editions of the Unified Agenda include the Regulatory 
Plan, which presents the Department's statement of regulatory 
priorities for the coming year. Fall editions also include the outcome 
and status of the Department's reviews of existing regulations, 
conducted in accordance with Sec.  9.9(d).
    (c) Each POC must--
    (1) Carefully consider the principles contained in Executive Orders 
12866, 13771, and 13777, and any Executive orders that supersede such 
orders, in the preparation of all submissions for the Unified Agenda;
    (2) Ensure that all information pertaining to the Department's 
regulatory and deregulatory actions are accurately reflected in the 
Department's Unified Agenda submission;
    (3) Timely submit all information to DRS in accordance with the 
deadlines and procedures communicated by that office; and
    (4) Obtain the approval of the RRO to submit any new rulemaking as 
part of the Unified Agenda.
    (d) Unless required to address an emergency or otherwise required 
by law or approved by the RRO and by OMB, no significant regulation may 
be issued if it was not included on the most recent version of the 
published Unified Agenda. Furthermore, no significant regulatory action 
may take effect until it has appeared in the Unified Agenda for at 
least 6 months prior to its issuance, unless good cause exists for an 
earlier effective date and action is otherwise approved by the RRTF or 
RRO.


Sec.  9.9   General rulemaking procedures.

    (a) Definitions. (1) Significant rulemaking means a regulatory 
action designated by OMB under Executive Order 12866 as likely to 
result in a rule that may--
    (i) Have an annual effect on the U.S. economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (ii) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (iii) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (iv) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.
    (2) Nonsignificant rulemaking means a regulatory action not 
designated as significant by OMB.
    (b) Departmental review process. (1) Except as provided in this 
paragraph (b), all departmental rulemakings are to be reviewed and 
cleared by the Office of the Secretary prior to submission to OMB.
    (2) Each POC head must--
    (i) Ensure that all of the POC's rulemaking documents are written 
in plain language, technically sound, and generally of high quality;
    (ii) Ensure that the division within OGC that is responsible for 
providing the POC with legal advice reviews all rulemaking documents 
for legal support and legal sufficiency, including compliance with all 
applicable legal authorities, including but not limited to those listed 
in Sec.  9.1; and
    (iii) Approve the submission of all rulemaking documents, including 
any regulatory impact analysis, to DRS for submission for departmental 
clearance.
    (3) DRS transmits the rulemaking documents to POCs for review and 
comments in one or more rounds of departmental clearance, as 
appropriate, for a review period determined by DRS based on the length, 
complexity, and urgency of the particular rulemaking documents.
    (4) Reviewing offices should provide comments or otherwise concur 
on rulemaking documents within 10 calendar days or as otherwise 
determined by DRS based on such factors as the length, complexity, and 
urgency of the documents.
    (5) After each round of clearance, DRS sends reviewing offices' 
comments to the proposing POC for resolution. The POC resolves any 
comments and submits a revised draft to DRS for another round of 
clearance or for the next step following the completion of departmental 
clearance as determined by DRS.
    (6) Following the completion of departmental clearance, DRS 
prepares a rulemaking package to request the Secretary's approval for 
the rulemaking to be submitted to OMB for review or to the Federal 
Register for publication. These rulemaking packages are submitted to 
the Office of the Executive Secretariat, with a copy to the RRO, who 
must approve the rulemaking prior to submission to the Secretary.

[[Page 62604]]

    (7) DRS notifies the POC and the RRO when the Secretary approves or 
disapproves the submission of the rulemaking to OMB or to the Federal 
Register.
    (8) DRS is responsible for coordination with OIRA staff on OIRA's 
designation of all rulemaking documents, submission and clearance of 
all significant rulemaking documents, and all discussions or meetings 
with OMB concerning these documents. Generally, POCs must not schedule 
their own meetings with OMB without DRS and RRO involvement. Each POC 
should coordinate with DRS and the RRO before holding any discussions 
with OMB concerning regulatory policy or agreements to modify 
significant regulatory documents.
    (c) Petitions for rulemaking, exemptions, or retrospective review. 
(1) 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.
    (2) A petition must--
    (i) Be submitted to the Department through its docket designated 
for petitions on regulations.gov;
    (ii) Contain the petitioner's name and contact information, 
including, at a minimum, an email address or mailing address;
    (iii) Describe the nature of the request, and identify the rule at 
issue, including the specific text or substance of the rule;
    (iv) Explain the interest of the petitioner in the action 
requested, including, in the case of a petition for an exemption, the 
nature and extent of the relief sought and a description of the persons 
to be covered by the exemption; and
    (v) Contain an adequate justification for the action sought.
    (3)(i) Within 60 calendar days of the Department's receipt of the 
petition, the head of the POC with regulatory responsibility over the 
matter described in the petition, or their designee, must recommend 
whether to--
    (A) Proceed with consideration of rulemaking, an exemption, or 
retrospective review; or
    (B) Deny, in whole or in part, the petition.
    (ii) The head of the POC, in consultation with the RRO and General 
Counsel, as needed, determines which petitions to deny. If the head of 
the POC determines that the petition contains adequate justification to 
issue, amend, or repeal a rule; to provide for a permanent or temporary 
exemption from any rule; or to perform a retrospective review of an 
existing rule, it refers the proposed action to the RRTF.
    (4) After action by the RRTF, the POC responsible for the subject 
matter of the petition notifies the petitioner of any action on the 
petition. If the petition is denied, then the POC must provide an 
appropriately reasoned statement of the grounds for denial.
    (d) Review of existing regulations. (1) All significant 
departmental regulations will be reviewed on a 10-year cycle.
    (2) The POC that issued the regulation will review it for the 
following:
    (i) Continued policy justification. Whether there is a policy 
justification for maintaining the regulation that is compelling and 
evidence-based.
    (ii) Continued cost justification. Whether the regulation requires 
adjustment due to changed market conditions or is no longer net 
beneficial.
    (iii) Regulatory flexibility. Whether the regulation has a 
significant economic impact on a substantial number of small entities 
and requires review under 5 U.S.C. 610 (commonly known as the 
Regulatory Flexibility Act).
    (iv) General updates. Whether the regulation may need technical 
corrections, updates, revisions, or repeal.
    (v) Plain language. Whether the regulation needs revisions for 
plain language.
    (vi) Other considerations. Whether there are other considerations 
under relevant Executive orders and laws.
    (3) The results of each POC's review will be reported annually in 
the fall Unified Agenda.
    (e) Regulatory impact analysis. (1) The Office of Budget Service 
has primary responsibility for conducting and approving regulatory 
impact analyses.
    (2) Rules include, at a minimum--
    (i) An assessment of the potential costs and benefits of the 
regulatory action (a regulatory impact analysis) or a reasoned 
determination that the expected economic impact is so minimal that a 
formal analysis of costs and benefits is not warranted; and
    (ii) If the regulatory action is expected to impose costs, either a 
reasoned determination that the benefits outweigh the costs or, if the 
particular rulemaking is mandated by statute notwithstanding a negative 
cost-benefit assessment, a detailed discussion of the rationale 
supporting the specific regulatory action proposed and an explanation 
of why this approach maximizes net benefits.
    (3) To the extent practicable, economic assessments will quantify 
the foreseeable annual economic costs and cost savings within the 
United States that would likely result from issuance of the rule and be 
conducted in accordance with section 1(b)(6) of Executive Order 12866 
and OMB Circular A-4 (Regulatory Analysis), as specified by OMB in 
consultation with DRS. If the Office of Budget Service has estimated 
that the rule will likely impose economic costs on persons outside the 
United States, such costs should be reported separately.
    (4) Deregulatory significant rulemakings will be evaluated for 
quantifiable as well as qualitative cost savings. If it is determined 
that quantification of cost savings is not possible or appropriate, 
then the proposing POC will provide a reasoned justification for the 
lack of quantification upon submission of the rulemaking to the Office 
of Budget Service.
    (f) Regulatory flexibility analysis. All rulemakings subject to the 
requirements of 5 U.S.C. 603-604 (as enacted by the Regulatory 
Flexibility Act), and any amendment thereto, must include the required 
analysis regarding the potential impact of the rule on small entities.
    (g) Notices of proposed rulemaking (NPRM)--(1) Timing. After 
obtaining approval from the RRTF under Sec.  9.7, if applicable, the 
proposing POC proceeds with rulemaking, consistent with applicable 
statutory and regulatory procedures (such as negotiated rulemaking, 
public hearings, and notice-and-comment rulemaking) in consultation 
with DRS.
    (2) Contents. The NPRM must include, at a minimum--
    (i) A statement of the time and place for submission of public 
comments and the time, place, and nature of any related public 
rulemaking proceedings;
    (ii) Reference to the legal authority under which the rule is 
proposed and consistency with applicable authorities cited in Sec.  9.1 
and with the policy set forth in Sec.  9.4;
    (iii) The terms of the proposed rule;
    (iv) A description of material information known to the POC on the 
subject of the proposed rule, including but not limited to--
    (A) The considerations specified in Sec.  9.7(b);
    (B) For economically significant rules or documents over 100 pages, 
a summary of any regulatory impact analysis performed by the 
Department; and
    (C) Information specifically identifying material data, studies, 
models, and other evidence or information considered or used by the 
Department in connection with its determination to propose the rule;

[[Page 62605]]

    (v) A reasoned preliminary analysis of the need for the proposed 
rule based on the information described in the preamble to the NPRM, 
and an additional statement of whether a rule is required by statute;
    (vi) A reasoned preliminary analysis indicating whether the 
expected benefits of the proposed rule will meet the relevant statutory 
objectives and will outweigh the estimated costs of the proposed rule, 
in accordance with any applicable requirements;
    (vii) When possible, and especially if the rulemaking is 
significant, a summary discussion of the alternatives to the proposed 
rule considered by the POC, the relative costs and benefits of those 
alternatives, whether the alternatives would meet relevant statutory 
objectives, and why the POC chose not to propose or pursue the 
alternatives;
    (viii) A statement of whether existing rules have created or 
contributed to the issue the Department seeks to address with the 
proposed rule and, if so, whether the Department proposes to amend or 
rescind any such rules and why; and
    (ix) All other statements and analyses required by law, including, 
without limitation, the Regulatory Flexibility Act.
    (3) Information access and quality. (i) To inform public comment 
when the NPRM is published, the proposing POC will place in the docket 
for the proposed rule and make accessible to the public, including by 
electronic means, material information relied upon by the POC in the 
NPRM that is not provided in the NPRM, unless the information is exempt 
from disclosure under 5 U.S.C. 552(b), 5 U.S.C. 552a, or any other 
applicable law. Material provided electronically should be made 
available in accordance with the requirements of section 508 of the 
Rehabilitation Act of 1973 (29 U.S.C. 794d).
    (ii) The proposing POC will determine the most reliable and 
relevant scientific, technical, and economic information reasonably 
available to the Department as a basis for the proposal, identify the 
sources and availability of such information, and affirm such 
information complies with all applicable quality, objectivity, utility, 
and integrity provisions of OMB's ``Guidelines for Ensuring and 
Maximizing the Quality, Objectivity, Utility, and Integrity of 
Information Disseminated by Federal Agencies'' (Feb. 22, 2002) in the 
NPRM.
    (h) Public comment. (1) Through the NPRM, or other applicable 
statutory procedures, the Department will provide the public a fair and 
sufficient opportunity to participate in the rulemaking through 
submission of written data, analysis, views, and recommendations.
    (2) The Department--in coordination with OMB under Executive Order 
12866 for significant rulemakings--will ensure that the public is given 
an adequate period for comment, taking into account the scope, 
complexity, and nature of the issues and considerations involved in the 
proposed regulatory action.
    (3) Unless a longer comment period is required by statute, absent 
special considerations and after individualized determinations, the 
comment period for nonsignificant regulatory actions generally should 
be at least 30 calendar days, and the comment period for significant 
regulatory actions should be at least 60 calendar days.
    (i) Exemptions from notice and comment. (1) Except when prior 
notice and an opportunity for public comment are required by statute or 
determined by the Secretary to be appropriate for policy or 
programmatic reasons, the responsible POC may, subject to the approval 
of the RRTF (in consultation with OMB, as appropriate), publish certain 
final rules in the Federal Register without prior notice and comment, 
provided the reasons to forgo public comment are explained in the 
preamble to the final rule. These may include, consistent with the 
Administrative Procedure Act (5 U.S.C. 553)--
    (i) Interpretive rules and rules addressing only Department 
organization, procedure, or practice;
    (ii) Rules for which notice and comment are unnecessary to inform 
the rulemaking, such as rules correcting minor technical or clerical 
errors or rules that merely update regulations to include new or 
revised statutory language; and
    (iii) Rules that require finalization without delay, such as rules 
to address an urgent need, and other rules for which it would be 
impracticable or contrary to the public interest to accommodate a 
period of public comment, provided the responsible POC finds that good 
cause exists to forgo public comment pursuant to 5 U.S.C. 553(b)(B).
    (2) Except when required by statute, issuing a substantive 
Department rule without completing notice and comment, including as an 
interim final rule (IFR) and direct final rule (DFR), must be the 
exception. In most cases in which a POC has issued an IFR, the 
responsible POC will proceed at the earliest opportunity to finalize 
the IFR.
    (j) Final rules. The Department will adopt a final rule only after 
consulting with the RRTF. The final rule, which includes the text of 
the rule as adopted along with a supporting preamble, will be published 
in the Federal Register and must satisfy the following requirements:
    (1) The preamble to the final rule will include--
    (i) A concise, general statement of the rule's basis and purpose, 
including clear reference to the legal authority supporting the rule;
    (ii) A reasoned determination by the adopting POC regarding each of 
the considerations required to be addressed in an NPRM under paragraph 
(g)(2) of this section;
    (iii) A response to comments on the proposed rule;
    (iv) If the final rule has changed in significant respects from the 
rule as proposed in the NPRM, an explanation of the changes and the 
reasons why the changes are needed or are more appropriate to advance 
the objectives identified in the rulemaking; and
    (v) A reasoned discussion supporting a final determination that the 
information upon which the POC bases the rule complies with the 
Information Quality Act, 44 U.S.C. 3516, note, or any subsequent 
amendments thereto; the Foundations for Evidence-Based Policymaking Act 
of 2018, Public Law 115-435, 132 Stat. 5529; and OMB's ``Guidelines for 
Ensuring and Maximizing the Quality, Objectivity, Utility, and 
Integrity of Information Disseminated by Federal Agencies'' (Feb. 22, 
2002).
    (2) All final rules issued by the Department will--
    (i) Be written in plain language;
    (ii) Be based on data and evidence to the extent possible;
    (iii) Be based on a reasonable and well-founded interpretation of 
relevant statutory text; and
    (iv) Not be unnecessarily inconsistent or incompatible with, or 
unnecessarily duplicative of, other Federal regulations.
    (k) Reports to Congress and GAO. For each final rule adopted by the 
Department, DRS will submit the reports to Congress and GAO and comply 
with the procedures specified by 5 U.S.C. 801 (commonly known as the 
Congressional Review Act).
    (l) Negotiated rulemaking. (1) The Department will conduct 
negotiated rulemaking in accordance with section 492 of the Higher 
Education Act of 1965, 20 U.S.C. 1098a; 5 U.S.C. 561-571, commonly 
known as the Negotiated Rulemaking Act, as applicable; section 1601(b) 
of the Elementary and Secondary Education Act of 1965, 20 U.S.C. 
6571(b); and any

[[Page 62606]]

other applicable negotiated rulemaking requirements, as well as the 
Federal Advisory Committee Act, 5 U.S.C. App., as applicable.
    (2) Before initiating a negotiated rulemaking not required by law, 
the POC considering the use of negotiated rulemaking should--
    (i) Assess whether using negotiated rulemaking for the proposed 
rule is in the public interest, in accordance with 5 U.S.C. 563(a), and 
present these findings to the Leadership Council;
    (ii) Consult with DRS on the appropriateness of negotiated 
rulemaking; and
    (iii) Receive the approval of the Leadership Council for the use of 
negotiated rulemaking.
    (3) Unless otherwise approved by the General Counsel, all 
Department negotiated rulemakings should involve the assistance of at 
least one facilitator, as provided in 5 U.S.C. 561-567, commonly known 
as the Negotiated Rulemaking Act, 5 U.S.C. 566.
    (4) Any charters, membership, Federal Register notices, and 
operating procedures (or bylaws) for negotiated rulemaking committees 
must be approved by OGC.


Sec.  9.10   Special procedures for economically significant rules and 
high-impact rules.

    (a) Definitions. (1) Economically significant rule means a 
significant rule that is likely to impose a total annual cost on the 
U.S. economy (without regard to estimated benefits) of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities.
    (2) High-impact rule means a significant rule that is likely to 
impose--
    (i) A total annual cost on the U.S. economy (without regard to 
estimated benefits) of $500 million or more; or
    (ii) A total net loss of at least 250,000 full-time jobs in the 
U.S. over the 5 years following the effective date of the rule (not 
counting any jobs relating to new regulatory compliance).
    (b) Additional requirements for NPRMs. (1) In addition to the 
requirements set forth in Sec.  9.9(g), an NPRM for an economically 
significant rule or a high-impact rule will include a discussion 
explaining an achievable objective for the rule and the metrics by 
which the POC will measure progress toward that objective.
    (2) Absent unusual circumstances and unless approved by the RRTF 
(in consultation with OMB), the comment period for an economically 
significant rule will be at least 60 calendar days and for a high-
impact rule will be at least 90 calendar days. If a rule is determined 
to be an economically significant rule or a high-impact rule after the 
publication of the NPRM, the responsible POC will consider publishing 
notification in the Federal Register informing the public of the change 
in classification and extending or reopening the comment period by at 
least 30 calendar days and allowing further public comment as 
appropriate, including comment on the change in classification.
    (c) Procedures for formal hearings--(1) Petitions for hearings. 
Following publication of an NPRM for an economically significant rule 
or a high-impact rule that has not gone through negotiated rulemaking, 
and before the close of the comment period, any interested party may 
file in the docket designated for formal hearing petitions a petition 
asking the Department to hold a formal hearing on the proposed rule in 
accordance with this paragraph (c).
    (2) Mandatory hearing for high-impact rule. In the case of a 
proposed high-impact rule, the Department will grant the petition for a 
formal hearing if the petition makes a plausible prima facie showing 
that--
    (i) The proposed rule depends on conclusions concerning one or more 
specific scientific, technical, economic, or other complex factual 
issues that are genuinely in dispute or that may not satisfy the 
requirements of the Information Quality Act;
    (ii) The ordinary public comment process, including any additional 
procedures such as negotiated rulemaking, is unlikely to provide the 
POC with an adequate examination of the issues to permit a fully 
informed judgment on the dispute; and
    (iii) The resolution of the disputed factual issues would likely 
have a material effect on the costs and benefits of the proposed rule 
or on whether the proposed rule would achieve the statutory purpose.
    (3) Authority to deny hearing for economically significant rule. In 
the case of a proposed economically significant rule, the Department 
may deny a petition for a formal hearing that includes the showing 
described in paragraph (c)(2) of this section but only if the 
Department reasonably determines that--
    (i) The requested hearing would not advance the consideration of 
the proposed rule and the responsible POC's ability to make the 
rulemaking determinations required under this part; or
    (ii) The hearing would unreasonably delay completion of the 
rulemaking in light of a compelling need or a statutory mandate for 
prompt regulatory action.
    (4) Denial of petition. If the Department denies a petition for a 
formal hearing under this section, in whole or in part, the Department 
will include a detailed explanation of the factual basis for the denial 
in the rulemaking record, including findings on each of the relevant 
factors identified in paragraph (c)(2) or (3) of this section, and 
inform the requester of the decision. The Department will only deny a 
good faith petition for a formal hearing based on the factors 
identified in paragraph (c)(2) or (3) of this section.
    (5) Notice and scope of hearing. If the Department grants a 
petition, in whole or in part, for a formal hearing under this section, 
the Department will publish notification of the hearing in the Federal 
Register at least 30 calendar days before the date of the hearing. The 
notification will specify the proposed rule at issue and the specific 
factual issues to be considered in the hearing. The scope of the 
hearing will be limited to the factual issues specified in the 
notification.
    (6) Hearing process. A formal hearing for purposes of this section 
will be conducted using the procedures specified in 34 CFR 81.1 through 
81.20. The hearing official may allow for virtual hearings.
    (7) Actions following hearing. (i) Following completion of the 
formal hearing process, the responsible POC will consider the record of 
the hearing and, subject to the approval of the RRTF (in consultation 
with OMB), make a reasoned determination whether to--
    (A) Terminate the rulemaking;
    (B) Proceed with the rulemaking as proposed; or
    (C) Modify the proposed rule.
    (ii) If the decision is made to terminate the rulemaking, the 
responsible POC will publish notification in the Federal Register 
announcing the decision and explaining the reasons for it.
    (iii) If the decision is made to finalize the proposed rule without 
material modifications, the responsible POC will explain the reasons 
for its decision and its responses to the hearing record in the 
preamble to the final rule, in accordance with paragraph (d) of this 
section.
    (iv) If the decision is made to modify the proposed rule in a 
manner that is not a logical outgrowth of the NPRM, the responsible POC 
will, subject to the approval of the RRTF (in consultation with OMB), 
publish a new or supplemental NPRM in the Federal Register explaining 
the POC's responses

[[Page 62607]]

to, and analysis of, the hearing record, setting forth the 
modifications to the proposed rule, and providing an additional 
reasonable opportunity for public comment on the proposed modified 
rule.
    (8) Relationship to interagency process. The formal hearing 
procedures under this paragraph (c) will not impede or interfere with 
the OMB interagency review process for the proposed rulemaking.
    (d) Additional requirements for final rules. (1) In addition to the 
requirements set forth in Sec.  9.9(j), the preamble to a final 
economically significant rule or a final high-impact rule will 
include--
    (i) A discussion explaining the POC's reasoned final determination 
that the rule as adopted is necessary to achieve the objective 
identified in the NPRM in light of the full administrative record and 
does not deviate from the metrics previously identified by the POC for 
measuring progress toward that objective; and
    (ii) In accordance with paragraph (c)(7)(iii) of this section, the 
POC's responses to and analysis of the record of any formal hearing 
held under paragraph (c) of this section.
    (2) Absent exceptional circumstances and unless approved by the 
Secretary or the Leadership Council (in consultation with OMB), the POC 
will adopt as a final economically significant rule or final high-
impact rule the regulatory alternative that maximizes net benefits and 
achieves the relevant objectives.
    (e) Additional requirements for retrospective reviews. For each 
economically significant rule or high-impact rule, the responsible POC 
will conduct a retrospective review, and publish a regulatory impact 
report in the Federal Register every 5 years after the effective date 
of the rule while the rule remains in effect. The regulatory impact 
report will include, at a minimum--
    (1) An assessment of the impacts, including any costs, of the rule 
on regulated entities;
    (2) A determination of how the actual costs and benefits of the 
rule have varied from those anticipated when the rule was issued; and
    (3) An assessment of the effectiveness, benefits, and unintended 
consequences of the rule in producing the regulatory objectives it was 
adopted to achieve.
    (f) Waiver and modification. The procedures required by this 
section may be waived or modified as necessary with the approval of the 
RRO or the Secretary.


Sec.  9.11   Public contacts in informal rulemaking.

    (a) Informal rulemakings conducted in accordance with the APA. (1) 
After the issuance of an NPRM and pending completion of the related 
final rule, Department personnel will not give persons outside the 
executive branch information regarding the rulemaking that is not 
generally available to the public.
    (2) If, after the close of the comment period for the proposed 
rule, the Department receives a comment from the public that provides 
information that was not available prior to the deadline for submitting 
public comments concerning the proposed rule and that forms the basis 
of a critical decision in the final rule (such as newly available, 
reliable studies or data), the Department should reopen the comment 
period to give the public an opportunity to comment on the newly 
available information, unless the new information merely reinforces the 
information from the proposed rule or previously available in the 
public docket. If the new information is likely to result in a change 
to the rule that is not a logical outgrowth of the proposed rule, the 
POC must issue a supplemental NPRM to ensure that the final rule 
represents a logical outgrowth of the Department's proposal.
    (b) Contacts during OMB review. (1) Executive Orders 12866 and 
13563 describe the procedures for review of significant regulations by 
OMB, which include a process for members of the public to request 
meetings with OMB regarding rules under OMB review. In accordance with 
Executive Order 12866, OMB invites the Department to attend these 
meetings. DRS will forward these invitations to the appropriate 
regulatory contacts in the Department.
    (2) The responsible POC and DRS will determine who will participate 
in the meeting. Participation may occur by phone, by videoconference, 
or in person. These OMB meetings are listening sessions for the 
Department.
    (3) The attending Department personnel should refrain from debating 
particular points regarding the rulemaking and should avoid disclosing 
the contents of a document or proposed regulatory action that has not 
yet been disclosed to the public, but may answer questions of fact 
regarding a public document.

Subpart C--Guidance Document Procedures


Sec.  9.12   Policy.

    Guidance documents and significant guidance documents do not have 
the force or effect of law on parties outside the Department, and it is 
the policy of the Department to disfavor them except in special 
circumstances.


Sec.  9.13   Guidance documents.

    (a) Guidance document means an agency statement of general 
applicability, intended to have future effect on the behavior of 
regulated parties, that sets forth a policy on a statutory, regulatory, 
or technical issue, or an interpretation of a statute or regulation. 
The term is not confined to formal written documents, as guidance may 
come in a variety of written formats, including letters, memoranda, 
circulars, bulletins, advisories, electronic announcements, ``Dear 
Colleague'' letters, and handbooks. Guidance documents do not include 
the following:
    (1) Rules promulgated pursuant to notice and comment under 5 U.S.C. 
553 or similar statutory provisions.
    (2) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a).
    (3) Rules of Department organization, procedure, or practice, 
provided such rules do not alter substantive obligations for parties 
outside the Department.
    (4) Decisions of Department adjudications under 5 U.S.C. 554 or 
similar statutory provisions.
    (5) Internal guidance directed to the Department or other agencies 
that is not intended to have substantial future effect on the behavior 
of regulated parties.
    (6) Internal executive branch legal advice or legal opinions 
addressed to executive branch officials.
    (7) Legal briefs, other court filings, or positions taken in 
litigation or determinations in enforcement actions.
    (8) Agency statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation, such as those speeches, editorials, media 
interviews, press materials, or congressional testimonies that do not 
set forth for the first time a new policy.
    (9) Agency statements of specific, rather than general, 
applicability. This includes responses or information provided by a POC 
designed to answer specific questions from a grant recipient or other 
stakeholder; advisory opinions directed to particular parties about 
circumstance-specific questions; notices regarding particular locations 
or facilities; and correspondence with individual persons or entities, 
including congressional correspondence or notices of violation. A 
document, including correspondence, directed to a particular party that 
provides an agency interpretation of statutes, regulations, or

[[Page 62608]]

guidance or that is designed to guide the conduct of the broader 
regulated public is guidance.
    (10) Grant solicitations and awards, including instructions related 
to the submission of applications or State Plans for formula and 
discretionary grant programs and award amendments.
    (11) Contract solicitations and awards, contracts, and memoranda of 
understanding.
    (12) Categories of documents that the OMB Administrator 
(Administrator) identifies as excepted from the requirements of 
Executive Order 13891.
    (13) Documents prepared in connection with or responding to audits 
or other engagements conducted by the Office of Inspector General (OIG) 
or the Government Accountability Office (GAO) and to oversight by 
congressional committees.
    (b) Each guidance document will, at a minimum--
    (1) Include the term ``guidance'';
    (2) Identify that it is issued by the Department or a component of 
the Department;
    (3) Identify the activities and entities to which, and the persons 
to whom, the document applies;
    (4) Include the date of issuance;
    (5) Note if it is a revision to a previously issued guidance 
document and, if so, identify the guidance document that it revises;
    (6) Provide the title of the guidance;
    (7) Have a unique document identification number;
    (8) Include the citation to the statutory provision or regulation 
to which it applies or that it interprets;
    (9) Include a short summary of the subject matter covered in the 
guidance document at the top of the document as appropriate; and
    (10) Include the following disclaimer, prominently displayed: Other 
than statutory and regulatory requirements included in the document, 
the contents of this guidance do not have the force and effect of law 
and are not meant to bind the public. This document is intended only to 
provide clarity to the public regarding existing requirements under the 
law or agency policies.
    (c) All guidance documents require review, clearance, and written 
authorization by the General Counsel of the Department or his or her 
designee. To obtain such authorization, the POC must demonstrate the 
following:
    (1) A compelling operational need to issue the guidance document; 
and
    (2) The guidance document complies with OMB's ``Final Bulletin on 
Agency Good Guidance'' (Jan. 25, 2007) and Executive Order 13891.
    (d) The General Counsel will consult with the RRO prior to clearing 
significant guidance documents.
    (e) All active guidance documents will be accessible through the 
Department's guidance portal. Documents that are not available through 
this portal are not considered to be in effect (and may only be used 
for historical purposes).


Sec.  9.14   Significant guidance documents.

    (a) Significant guidance document means a guidance document that 
may reasonably be anticipated to--
    (1) Lead to an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 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 of Executive 
Order 12866.
    (b) Before a POC may proceed to develop a significant guidance 
document, the POC head must consult with DRS and consider the 
regulatory philosophy and principles set forth in Executive Order 13891 
and the policies set forth in Sec. Sec.  9.4 and 9.12. If the POC head 
determines that a significant guidance document is warranted, 
consistent with those policies and principles, the POC may prepare a 
Significant Guidance Document Initiation Request to the Working Group 
of the RRTF.
    (c) The Significant Guidance Document Initiation Request should 
specifically state or describe--
    (1) A proposed title for the document;
    (2) The need for the document, including a description of the 
relevant statutes and regulations;
    (3) The legal authority for the document;
    (4) A description of the economic impact associated with the 
document;
    (5) The tentative target date for completion of the significant 
guidance document; and
    (6) Whether there is a statutory or judicial deadline, or some 
other urgency, associated with the significant guidance document.
    (d) The POC head submits the Significant Guidance Document 
Initiation Request to the Assistant General Counsel for DRS and the 
RPO, together with any other documents that may assist in the RRTF's 
consideration of the request.
    (e) DRS includes the Significant Guidance Document Initiation 
Request on the agenda for consideration at the next RRTF Working Group 
meeting.
    (f) The Working Group forwards the Significant Guidance Document 
Initiation Request to the Leadership Council and provides the 
Leadership Council with a recommendation.
    (g) The Department will seek significance determinations from OIRA 
for certain guidance documents, as appropriate, in the same manner as 
for rulemakings. Prior to publishing these guidance documents, and with 
sufficient time to allow OIRA to review the document in the event that 
a significance determination is made, Department should provide OIRA 
with an opportunity to review the designation request or the guidance 
document, if requested, to determine if it meets the definition of 
``significant'' or ``economically significant'' under Executive Order 
13891.
    (h) Unless the Department and the Administrator agree that 
exigency, safety, health, or other compelling cause warrants an 
exemption from some or all requirements, upon approval of the 
Leadership Council, the Department will issue the significant guidance 
document only after completing the following requirements:
    (1) A period of public notice and comment of at least 30 calendar 
days before issuance of the final significant guidance document, and a 
public response from the Department to significant comments, except 
when the Department, for good cause, finds (and incorporates such 
finding and a brief statement of the reasons into the significant 
guidance document) that notice and public comment thereon are 
impracticable, unnecessary, or contrary to the public interest, 
according to the same standards applicable to agency rules under 5 
U.S.C. 553(b)(B).
    (2) Approval by the Secretary and signature by the Secretary or the 
component head or by an official who is serving in an acting capacity 
as either of the foregoing before issuance.
    (3) Review by OMB under Executive Order 12866.
    (4) Compliance with the applicable requirements for regulations or 
rules, including significant regulatory actions, set forth in Executive 
Orders 12866, 13563, 13771, and 13777, and any Executive orders that 
supersede such orders, for such time as they are in effect.

[[Page 62609]]

Sec.  9.15   Request for withdrawal or modification of guidance 
documents and significant guidance documents.

    (a) Members of the public may request the withdrawal or 
modification of an existing guidance document or significant guidance 
document in the manner indicated on the Department's guidance portal at 
https://www2.ed.gov/policy/gen/guid/types-of-guidance-documents.html.
    (b) The Department will respond to all requests in a timely manner, 
but no later than 90 calendar days after receipt of the request, to the 
extent practicable.


Sec.  9.16   Rescinded significant guidance documents.

    (a) To rescind a significant guidance document, the Department 
will--
    (1) In consultation with OIRA, provide a period of public notice 
and comment of at least 30 calendar days with respect to the 
rescission, unless the rescission reflects statutory or regulatory 
changes or some other reason that does not involve an independent 
exercise of the Department's policy-making discretion;
    (2) Submit the proposed rescission to OMB for review; and
    (3) Publish a notice in the Federal Register announcing the 
rescission.
    (b) The Department and its components may not cite, use, or rely on 
rescinded guidance documents or rescinded significant guidance 
documents, except to establish historical facts.

Subpart D--Miscellaneous Provisions


Sec.  9.17   Policy updates and revisions.

    This part will be reviewed periodically to reflect improvements in 
the rulemaking process or changes in Administration policy. If Congress 
revises applicable laws or if the executive branch issues new Executive 
orders, Presidential memoranda, guidance, or implementing instructions 
governing Federal agency rulemaking, those changes will also be part of 
this review.


Sec.  9.18   Disclaimer.

    This part is intended to improve the internal management of the 
Department. It is not intended to, and does not, create any right or 
benefit, substantive or procedural, enforceable at law or in equity by 
any party against the United States; its agencies or other entities, 
officers, or employees; or any other person. In addition, this part 
shall not be construed to create any right to judicial review involving 
the compliance or noncompliance with this part by the Department, its 
POCs, its officers or employees, or any other person.

[FR Doc. 2020-20799 Filed 10-1-20; 4:15 pm]
BILLING CODE 4000-01-P