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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Rules and Regulations
matter relating to agency management and personnel, 5 U.S.C. 553a2. 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 9.4
Comments: One commenter noted that the IFR contains problematically vague language, such as 9.4a2ii, 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 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 9.9
Comments: Some commenters recommended that the Department eliminate 9.9c, 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
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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 9.9c and believes it is necessary to rescind the IFR in its entirety, the language in 9.9c, in large part, is mirrored in sections 553e and 555e 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 9.9c 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 commenters 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 9.9d providing that all significant Department regulations will be reviewed on a 10year 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
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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 Departments mission.
Discussion: The Department agrees with the commenters that recommended rescission of the IFR, including this commenters request to rescind 9.9d.
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 Departments ability to pursue work central to the Departments 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 9.9e provides that deregulatory rulemakings will be assessed for cost savings but fails to clarify that foregone benefits must also be assessed.
Additionally, 9.9d2ii 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 9.1c, 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
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