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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Rules and Regulations
definition of guidance document is nonsensical, as a stakeholders question about a laws application to a specific circumstance necessarily requires the Department to respond with its interpretation of the relevant law. They said that the IFRs 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 OMBs 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 9.13e, which states that all active guidance documents will be available through the Departments 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
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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-guidancedocuments.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 Departments 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 9.14
Comments: Commenters objected to the procedures for the issuance of significant guidance documents in 9.14h, most significantly the
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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 COVID19 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 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 Departments 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-bycase adjudication and is more flexible than full notice-and-comment rulemaking, and also permits more accessible, audience-tailored explanations. Informal communications between agencies and their regulated communities . . . are vital to the smooth operation of both government and business. Indep.
Equip. Dealers Assn 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 9.15
Comments: One commenter objected to 9.15, which provides a process by
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