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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Rules and Regulations 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 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 Departments 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 Departments inclusion of a process for challenging agency guidance documents in 9.15a 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 commenters suggestion but declines to adopt it because we are rescinding 9.15a 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
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will continue to have all available legal remedies.
Changes: The Department rescinds 34
CFR part 9.
Rescinded significant guidance documents 9.16
Comments: Two commenters stated that 9.16a, which provides for a 30day 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 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 Assn, 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 3f 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;

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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 Presidents 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 3f 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 accountamong other things and to the extent practicablethe 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 incentivessuch as user fees or marketable permitsto 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
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