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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Rules and Regulations benefits, justify the costs of the proposed regulatory action, consistent with OMB Circular A4.1
Changes: The Department rescinds 34
CFR part 9.
Special procedures for economically significant rules and high-impact rules 9.10
Comments: Some commenters urged the Department to eliminate 9.10c, 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 highimpact 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 9.10c2ii, 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.
1 Office of Mgmt. & Budget, Exec. Office of the President, Circular A4, 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 benefits and costs that are difficult to quantify.

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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 9.10.
Changes: The Department rescinds 34
CFR part 9.
Guidance documents 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 9.13a will inhibit administrative flexibility and slow the issuance of important guidance and technical assistance documents.
Further, they noted that the requirement in 9.13c that all guidance be cleared by the General Counsel will delay the Departments 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
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quickly so that grantees and other stakeholders have the information they need in a timely manner and that the requirements in 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 COVID19 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 IFRs 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 9.13b 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 Departments interpretation of court decisions or prioritizing certain types of cases can significantly impact how stakeholders should comply with existing law.
Discussion: We appreciate the commenters concerns about the disclaimer language in 9.13b. By rescinding 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 9.13a9 will unnecessarily create confusion for stakeholders by not considering agency statements, such as responses from the Department to a stakeholders 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
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