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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Rules and Regulations 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 COVID19 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. 96354, 5 U.S.C.
601612; the Paperwork Reduction Act of 1995 44 U.S.C. 3506c2A;
Executive Order 12866; and OMBs 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 IFRs effect on the Departments 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
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students with disabilities and their families have been particularly adversely affected by physical school closures during the COVID19
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 COVID19 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 COVID19 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 Departments 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
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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 COVID19 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 APAs narrow exemption to notice-andcomment 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.
553bB. 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 Departments 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 9.9c or request the withdrawal or modification of a guidance document or significant guidance document 9.15.
The Departments rescission of the IFRs requirement to develop significant guidance documents using notice-andcomment procedures 9.14h1 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-andcomment rulemaking requirements see 5 U.S.C. 553bA.
Finally, notice-and-comment rulemaking requirements also do not apply to regulations that involve a
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