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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Rules and Regulations
must engage in before developing a significant regulation, including that the principal operating component POC
proposing the regulation prepare a Rulemaking Initiation Request that describes, for example, the need for the regulation, the legal authority for the rulemaking, whether the rulemaking is expected to be regulatory or deregulatory, and whether it is expected to be significant, as defined by Executive Order 12866. Both the Working Group and the Leadership Council of the RRTF must review and approve the Rulemaking Initiation Request for the action to move forward.
Section 9.9d requires that the Department review all significant regulations on a 10-year cycle to determine whether they have, among other things, a continued policy justification and a continued cost justification. Additionally, the IFR
contains special procedures for economically significant rules and highimpact rules in 9.10. That section establishes a definition of the term high-impact rule and provides, for example, that the comment period for high-impact rule will be at least 90 days and that, following the publication of an NPRM for an economically significant or high-impact rule, any interested party may request that the Department hold a formal hearing on the proposed rule.
The IFR also established rules related to the publication of guidance documents, expressing that the Departments policy is to disfavor guidance except in special circumstances. 34 CFR 9.12. Section 9.14c requires that a POC proposing to issue a significant guidance document prepare a Significant Guidance Document Initiation Request to be reviewed by the Working Group and Leadership Council of the RRTF.
Additionally, unless the Department and Administrator of the Office of Information and Regulatory Affairs OIRA at the Office of Management and Budget OMB agree that exigency, safety, health, or other compelling cause warrants an exemption from some or all requirements, upon approval of the Leadership Council of the RRTF, the Department will issue a significant guidance document only after completing a 30-day period of public notice and comment and approval by the Secretary or the component head or by an official serving in an acting capacity as either of the foregoing before issuance. Section 9.16 further requires that the Department will provide a 30day notice and comment period before rescinding a significant guidance document and publish a notice in the
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Federal Register announcing the rescission.
On January 20, 2021, the President issued Executive Order 13992 which revoked several other Executive orders, including Executive Orders 13891 and 13777. 86 FR 7049. Executive Order 13992 directed heads of agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the revoked Executive Orders, as appropriate and consistent with applicable law, including the Administrative Procedure Act APA, 5 U.S.C. 551 et seq. 86 FR
7049. The express purpose of Executive Order 13992 is to equip Executive departments and agencies with the flexibility to use robust regulatory action to effectively address national priorities and tackle challenges, such as the coronavirus disease 2019 COVID
19 pandemic, economic recovery, racial justice, and climate change.
Consistent with Executive Order 13992, the Department is exercising its discretion to rescind the IFR. Since the issuance of the IFR, the Department has developed and published many regulatory and guidance documents under challenging circumstances. This experience has led us to recognize that many of the procedures required by the IFR create obstacles to the timely issuance of regulatory and guidance documents, and we believe they do not benefit either the Department or the public.
While the goals of the IFR were to increase transparency, fairness, and public participation, and strengthen the overall quality and fairness of the Departments processes, we believe, based on our recent experience and the public comments we received, that the IFRs requirements regarding the regulatory and guidance processes will not help the Department achieve those goals. Sections 9.6, 9.7 and 9.9 relate to the Departments internal procedures to initiate a rulemaking. Those sections require the Department to establish an RRTF, and set forth in detail the roles of the Working Group and Leadership Counsel, as well as the roles of a number of individuals and offices within the Department. In addition, they prescribe a formal process for initiating a rulemaking and the Departments internal review process of proposed rules. Those procedures are entirely internal to the Department and will not increase transparency, fairness, or public participation, nor do we believe that they will they strengthen the overall quality and fairness of the Departments processes.

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Additionally, we do not believe that the special procedures for economically significant rules and high-impact rules will achieve the goals of the IFR. Rather, they will likely benefit sophisticated stakeholders, rather than students, children, and families. For example, the procedures for formal hearings in 9.10c allow an interested party to file a petition for a formal hearing on a proposed economically significant or high-impact rule. As noted in public comments in response to the IFR, wellfinanced and sophisticated stakeholders will likely have an advantage over small organizations or individuals when engaging in a formal hearing on complex regulatory issues before a Department hearing official.
Although the provisions governing the Departments internal processes for the approval and issuance of regulations and guidance documents contain some flexibility when the Department is faced with extraordinary circumstances see, e.g., 9.14h1, we believe that the provisions create unreasonable burdens on Department staff and will slow the process of issuing regulatory and guidance documents without improving the quality of the documents. Allowing the Department to issue guidance documents that clarify its understanding of relevant law and how it intends to use its discretionary authority without these additional procedural hurdles imposed by the IFR will better allow it to serve students, schools, and other stakeholders.
Some of the IFRs procedures involved the Departments Regulatory Reform Task Force RRTF and regulatory reform officer RRO, which were established pursuant to Executive Order 13777. 82 FR 12285. That Executive Order also was revoked by Executive Order 13992, which specifically directed agencies to abolish RRTFs and RRO positions established by Executive Order 13777. 86 FR 7049.
This rescission is responsive to public comments received on the IFR. While most parties that submitted public comments in response to the IFR
requested that the Department rescind the IFR in its entirety, we also address the specific reasons cited by commenters as justifying rescission.
Public Comment: The IFR is an internal rule of agency procedure. See 5
U.S.C. 553a2, 553bA.
Nonetheless, the Department invited public comments on the IFR to allow members of the public to provide their input about the content of the rule. In response to our invitation in the IFR, nine parties submitted comments on the IFR. In this preamble, we respond to those comments, which we have
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