Rulemaking and Guidance Procedures, 53863-53870 [2021-20992]

Agencies

• DEPARTMENT OF EDUCATION

[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