Reducing Regulatory Burden; Retrospective Review Under E.O. 13563
This Proposed Rule document was issued by the Department of Education (ED)
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DEPARTMENT OF EDUCATION
34 CFR Subtitles A and B
[Docket ID ED-2011-OGC-0004]
Reducing Regulatory Burden; Retrospective Review Under E.O.13563
Department of Education.
Request for information.
The U.S. Department of Education (the Department) requests comments on its preliminary plan for the retrospective analysis of its existing regulations as part of its implementation of Executive Order 13563 “Improving Regulation and Regulatory Review.” The purpose of this preliminary plan is to make the Department's regulatory program more effective and less burdensome in achieving the Department's regulatory objectives. The plan, once final, will establish the Department's policy for conducting thorough and meaningful retrospective reviews and analyses of its regulations on an ongoing basis. The Department requests public comment on this preliminary plan to help the Department review its significant existing regulations in order to determine whether any of these regulations should be modified, streamlined, expanded, or repealed.
In addition, pursuant to the “President's Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments,” we request comments (including, when applicable, from students, their parents, and consumer and taxpayer representatives) on possible administrative flexibility that the Department may be able to provide to State, local, and tribal governments.
We must receive your comments on or before July 25, 2011.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID—Docket ID ED-2011-OGC-0004—at the top of your comments.
The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at http://www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available on the Internet.
For Further Information Contact
Elizabeth McFadden, Deputy General Counsel for Ethics, Legislative Counsel, and Regulatory Services, Office of the General Counsel, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202-2110. Telephone: 202-401-6000. You may also e-mail your questions to: Reg-Review@ed.gov.
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) by contacting the person listed under this section.
To view Executive Order 13563 go to: http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
To view the “President's Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments,” go to: http://www.whitehouse.gov/the-press-office/2011/02/28/presidential-memorandum-administrative-flexibility.
Invitation to Comment
We invite you to submit comments regarding the preliminary plan, which is published in its entirety as an Appendix to this notice, and possible administrative flexibility that the Department may be able to provide to State, local, and tribal governments. Please let us know of any further opportunities we should take to improve any of our regulations by modifying, streamlining, expanding, or repealing them or to provide additional flexibility to entities that receive Department funds.
During and after the comment period, you may inspect all public comments on this notice by accessing Regulations.gov. You may also inspect the comments, in person, in room 6E300, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays. If you want to schedule an appointment to review the comments in person, please contact the person listed underFOR FURTHER INFORMATION CONTACT.
Assistance to Individuals With Disabilities in Reviewing the Public Docket
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public docket for this notice. If you want to schedule an appointment for this type of aid, please contact the person listed underFOR FURTHER INFORMATION CONTACT.
On January 18, 2011, President Obama issued Executive Order 13563 (published in theFederal Registeron January 21, 2011 (76 FR 3821)), which directs agencies to conduct a retrospective analysis of existing significant regulations and to modify, streamline, expand, or repeal those regulations that are outmoded, ineffective, insufficient, or excessively burdensome. Executive Order 13563 supplements and reaffirms the principles of regulatory review enunciated in Executive Order 12866, “Regulatory Planning and Review” (published in theFederal Registeron November 4, 1993 (58 FR 51735)). Some of these principles are that our regulatory system must: (1) Promote economic growth, innovation, competitiveness, and job creation; (2) be based on the best available science; (3) allow for meaningful public participation; (4) consider costs and benefits; (5) promote predictability; and (6) ensure that regulations are accessible and easy to understand. In order to advance these principles, Executive Order 13563 requires agencies to develop and implement a plan for periodically reviewing their existing significant regulations.
Section 6(b) of Executive Order 13563 directs each agency to develop and submit to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs a preliminary plan for reviewing existing significant regulations in order to determine whether any such regulations should be modified, streamlined, expanded, or repealed.
The Department developed a preliminary plan and submitted it to OMB on May 18, 2011. The preliminary plan addresses our plan to review existing significant regulations (and significant guidance documents and existing information collections—to the extent they are associated with existing regulations), and priorities, requirements, definitions, and selection criteria governing discretionary grant programs that are established through rulemaking but that are not codified in the Code of Federal Regulations. More specifically, the plan (1) lists the factors and processes the Department proposes to use to set priorities for the retrospective review of its regulations; (2) identifies an initial list of existing regulations that are candidates for review; (3) explains how the Department intends to coordinate with other Federal agencies that have overlapping jurisdiction or similar interests; and (4) sets forth the proposed components of its retrospective cost-benefit analysis. Through this notice, we request public comment on these particular elements of the preliminary plan as well as all other aspects of the plan. We will consider the feedback we receive through this process when formulating a final retrospective review plan and establishing processes for ongoing review at the Department.
The preliminary plan is included in the Appendix to this notice and is also available on the Department's Open Government Web site at http://www.ed.gov/open.
Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments
On February 28, 2011, the President issued a memorandum to Federal agencies entitled “Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments.” This memorandum requires Federal agencies to report to OMB on actions taken and plans to offer greater flexibility, where it will yield improved outcomes at lower cost, in Federal programs administered by State, local, and tribal governments.
To implement the President's directive in the memorandum, the Department is working to identify administrative, regulatory, and legislative barriers that currently prevent States, localities, and tribesfrom efficiently and effectively using Federal funds to achieve program objectives. We are in the process of identifying a number of high-impact areas in which efforts to increase flexibility and reduce costs could have broad implications for a wide set of stakeholders. Potential actions under consideration include offering additional waiver options that would provide regulatory relief on key provisions, simplifying redundant or overlapping data requirements, providing a better and more transparent process for considering State requests to waive requirements to maintain fiscal effort, and improving interagency collaboration in such areas as early learning, workforce development, and place-based initiatives such as Promise Neighborhoods, which may offer opportunities for achieving additional cross-agency efficiencies.
We would appreciate responses to the following questions:
(1) What administrative, regulatory, and statutory requirements could be changed to help reduce costs and unnecessary burdens, spur innovation, and improve student or program outcomes?
(2) What regulatory requirements should the Department consider waiving, subject to statutory waiver authority?
(3) Should the Department streamline the application and approval process for waivers and, if so, how?
(4) Where could the Department reduce current reporting requirements that are not necessary or useful in measuring program performance, facilitating data-driven program improvements, or ensuring the proper use of taxpayer dollars? Where are there opportunities to consolidate or streamline data collection or submission requirements?
(5) How can the Department streamline or modify the procedures that we use for processing requests for waivers of maintenance-of-effort (MOE) requirements to make them more transparent and uniform across programs with MOE requirements and reduce unnecessary reporting for States?
(6) What cross-agency flexibility or alignment is needed to allow States, local, and tribal governments to improve their early learning, workforce, and place-based efforts? (This could include consideration of how we might provide additional flexibility in such areas as performance measurement, application requirements, or uses of funds, or might encourage cross-agency funding opportunities, etc.)
(7) What flexibility can the Department offer to help facilitate collaboration at and across the State, local, and tribal levels?
(8) Where could increased flexibility drive the most improvements in program and student outcomes?
Electronic Access to This Document: The official version of this document is the document published in theFederal Register. Free Internet access to the official edition of theFederal Registerand the Code of Federal Regulations is available via the Federal Digital System at: http://www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in theFederal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in theFederal Registerby using the article search feature at: http://www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.
Dated: June 29, 2011.
Secretary of Education.
United States Department of Education
Preliminary Plan for Retrospective Analysis of Existing RulesMay 18, 2011.
I. Executive Summary of Preliminary Plan and Compliance With Executive Order 13563
Executive Order 13563 (Executive Order) recognizes the importance of maintaining a consistent culture of retrospective review and analysis throughout the executive branch. Determining the costs and benefits of a regulation before it is implemented is a challenging task and it often cannot be accomplished with perfect precision. The U.S. Department of Education's (ED) plan is designed to create a defined policy, method, and schedule for identifying certain significant rules that may be outmoded, ineffective, insufficient, or excessively burdensome. The review processes described in this plan are intended to facilitate the identification of regulations that warrant repeal or modification, or the strengthening, complementing, or modernizing of regulations, where necessary or appropriate.
II. Scope of Plan
a. Background: ED supports States, local communities, institutions of higher education, and others in improving education nationwide and in helping to ensure that all Americans receive a quality education. We provide leadership and financial assistance pertaining to education at all levels to a wide range of stakeholders and individuals, including State educational agencies, early childhood programs, elementary and secondary schools, institutions of higher education, career and technical schools, nonprofit organizations, members of the public, and many others. These efforts are helping to ensure that all students will be ready for college and careers, and that all K-12 students have an open path towards postsecondary education. We also vigorously monitor and enforce the implementation of Federal civil rights laws in education programs and activities that receive Federal financial assistance, and support innovation, research, evaluation, and dissemination of findings to improve the quality of education. Overall, the programs we administer affect nearly every American during his or her life.
In developing and implementing regulations, guidance, technical assistance, and approaches to compliance related to our programs, we are guided by the following three principles. First, we are committed to working closely with affected persons and groups. Specifically, we work with a broad range of interested parties and the general public, including parents, students, and educators; State, local, and tribal governments; and neighborhood groups, schools, colleges, rehabilitation service providers, professional associations, advocacy organizations, businesses, and labor organizations.
Secondly, we are committed to ensuring our regulations are concise and minimize burden to the greatest extent possible while still helping ensure the achievement of program outcomes. And finally, we continue to seek greater and more useful public participation in our rulemaking activities through the use of transparent and interactive rulemaking procedures and new technologies. If we determine that it is necessary to develop regulations, we seek public participation at all key stages in the rulemaking process.
These three guiding principles will be incorporated fully into our retrospective analyses of ED regulations.
b. List all subagencies within the Department that are included in this plan:
The following offices within ED are included in this plan:
Office of the Secretary
Office of the Deputy Secretary
Office of the Under Secretary
Office of the Chief Financial Officer
Office of the Chief Information Officer
Office of Management
Office of Elementary and Secondary Education
Office of Postsecondary Education
Office of Federal Student Aid
Office of English Language Acquisition
Office of Special Education and Rehabilitative Services, including the Office of Special Education Programs, the National Institute on Disability and Rehabilitation Research, and the Rehabilitation Services Administration
Office of Inspector General
Office of Innovation and Improvement
Office of Safe and Drug-Free Schools
Office of Vocational and Adult Education
Office of the General Counsel
Office for Civil Rights
Office of Planning, Evaluation, and Policy Development
c. The following types of documents are covered under this plan:
III. Public Access and Participation
a. Did the agency publish a notice in the Federal Register seeking public input on developing plans? If yes, please provide a link to the notice.
No. However, ED will soon be publishing a notice requesting public comment on our preliminary plan in theFederal Registerand posting it on our Open Government Web site. Through these notices, and pursuant to the President's Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments, ED will solicit feedback (including, when applicable, from students, their parents, and consumer and taxpayer representatives) on possible administrative flexibilities that ED may be able to provide to State, local, and tribal governments; non-profit organizations; institutions of higher education; community-based organizations; and other entities that receive funds under our programs. ED believes it will receive more meaningful feedback from the public and stakeholders by providing a specific draft plan for retrospective review and by including in that notice questions on possible administrative flexibilities that may be accomplished through regulatory revisions as well as through other methods. ED also intends to solicit this feedback on an ongoing basis through meetings with stakeholders.
b. Brief summary of public comments to notice seeking input: N/A.
c. Did the agency reach out to the public in addition to the public notice? N/A.
IV. Current Agency Efforts Already Underway Independent of E.O. 13563
a. Summary of pre-existing agency efforts (independent of E.O. 13563) to conduct retrospective analysis of existing rules:
ED has long been committed to ensuring that its regulations are reviewed and updated as necessary and appropriate. As outlined each year in ED's Regulatory Plan, (2) and through consistent application of the key principles outlined below, we have eliminated unnecessary regulations and identified situations in which major programs could be implemented without regulations or with limited regulatory action.
In deciding when to regulate, we consider:
In deciding how to regulate, we are mindful of the following principles:
Additionally, we routinely review the priorities and requirements governing our discretionary grant competitions following the completion of those competitions to determine whether changes should be made for future competitions.
Over the past two years, and operating under these principles, we have engaged in retrospective review of several key regulations that required updating to reflect changes in the authorizing statute, Administration priorities, or ED policies. We also began the process of developing a broader plan for a retrospective review of our regulations. Some examples of those efforts are as follows:
b. What specific rules, if any, were already under consideration for retrospective analysis?
Prior to issuance of the Executive Order, and in establishing ED's regulatory priorities for 2011, we identified several specific regulations for retrospective review and determined that, based on that review, further amendments to these regulations are necessary. These regulations are as follows:
V. Elements of Preliminary Plan/Compliance With E.O. 13563
a. How does the agency plan to develop a strong, ongoing culture of retrospective analysis?
This plan, once finalized, will establish ED's policy for conducting thorough and meaningful retrospective reviews and analyses of our regulations on an ongoing basis. This plan will be disseminated to all offices within ED, and all offices will participate in implementing the plan.
ED has established a retrospective review team that is responsible for developing this plan and for coordinating the retrospective reviews going forward. This team will regularly report its progress in implementing the plan and conducting the retrospective reviews to Deputy Secretary Miller and other senior officials. As indicated below, ED intends to conduct its retrospective reviews biennially. Thus, retrospective reviews will become standard operating procedure in the agency.
b. Prioritization. What factors and processes will the agency use in setting priorities?
The factors ED will use in setting priorities for the retrospective review of its regulations are:
c. Initial list of candidate rules for review over the next two years:
In addition to those regulations currently under review, we have preliminarily identified a number of other regulatory provisions that we believe warrant retrospective review. As indicated below, program offices will be asked to conduct a retrospective review of these and other regulatory provisions in the next several months. These are as follows:
d. Structure and Staffing. High-level agency official responsible for retrospective review.
Name/Position Title: Tony Miller, Deputy Secretary.
E-mail address: email@example.com.
e. How does the agency plan to ensure that the agency's retrospective team and process maintain sufficient independence from the offices responsible for writing and implementing regulations?
The retrospective review team will include representatives of the following offices: Office of the Deputy Secretary; Office of the Under Secretary; Office of Planning, Evaluation, and Policy Development; Budget Service; and the Office of the General Counsel. These offices do not have primary responsibility for drafting or implementing regulations. Additionally, the team will consult, as appropriate, with other offices that have agency-wide responsibilities, such as the Office of Inspector General.
f. Describe agency actions, if any, to strengthen internal review expertise. This could include training staff, regrouping staff, hiring new staff, or other methods.
The review team will be trained on the prioritization factors that ED has identified above and on our principles for regulating. The principles and the prioritization factors will be used as the key criteria in conducting the review.
g. How will the agency plan for retrospective analysis over the next two years, and beyond?
ED will be publishing the preliminary plan for public comment and, following the receipt of public comment, will revise the plan accordingly. At the same time, the retrospective review team will be asking program offices, budget analysts, and program attorneys to complete a retrospective review survey that requests information on existing regulations (see response to question VI(c) below). The team will coordinate the retrospective reviews and provide periodic reports to Deputy Secretary Miller and other senior officials on the progress and results of those reviews.
Once these reviews have been completed, the retrospective review team will analyze the results and develop recommendations to senior officials about which regulations should be amended (or what other actions otherthan regulation could be taken to reduce burden). Taking into account the prioritization factors listed above and agency resources, and working with senior officials, ED will develop a schedule for the amendment of those regulations identified for revision.
While ED is conducting these reviews, it will analyze the public comments that it receives on the draft plan and incorporate any changes into the final plan. ED intends to conduct its retrospective reviews biennially.
h. How will the agency decide what to do with the analysis?
The retrospective review team will use the results of the analysis to develop recommendations for senior officials regarding whether regulations should be amended and whether alternatives to regulating, such as updating guidance or modifying reporting requirements, should instead be used to reduce burden, simplify program implementation, or improve understanding of the regulations.
i. What are the agency's plans for revising rules? How will agencies periodically revisit rules (e.g., through sunset provisions, during regular intervals)?
ED will revise regulations based on the results of the retrospective reviews, the recommendations of the retrospective review team, and the decisions of senior officials. As indicated above, ED intends to conduct its retrospective reviews biennially.
j. Describe how the agency will coordinate with other Federal agencies that have jurisdiction or similar interests:
ED will work through the Office of Information and Regulatory Affairs within the Office of Management and Budget and with its existing contacts at other agencies as it is conducting its retrospective reviews and any subsequent amendments to our regulations. These agencies include the U.S. Department of Justice, the U.S. Department of Labor, the U.S. Department of Health and Human Services, the Social Security Administration, and the U.S. Small Business Administration. With respect to our discretionary grant programs, we have consulted and will continue to consult with other Federal agencies engaged in similar activities to assess ways in which we can reduce overlap and redundancy and share best practices, including in such areas as pre-award risk assessments and audit reviews.
k. Will the plan be peer reviewed?
There has been a thorough internal review of the preliminary plan by all offices within ED and any revisions made as a result of the public comment we receive on the draft plan will undergo a similarly thorough review.
If yes, please describe those plans:
The preliminary plan has undergone several levels of Departmental review. We have actively engaged and sought input from ED's senior leaders in developing the plan. The plan was presented to ED's Policy Committee for input and recommendations by senior policy officials. Based on recommendations from the Policy Committee, changes were made to the plan, and further changes were made as a result of the review by a larger group of ED staff who are directly responsible for administering the programs that would be affected by any changes to the regulations. As necessary, meetings were held to answer questions and reconcile differences.
ED will soon be publishing the preliminary plan for public comment and will seek informal feedback from stakeholders. Following receipt of public and stakeholder input, ED will consider further revisions to the plan. The final plan will undergo a similar internal review as the preliminary plan.
VI. Components of Retrospective Cost-Benefit Analysis
a. What metrics will the agency use to evaluate regulations after they have been implemented? For example, will the agency use increases in net benefits, increases in cost effectiveness ratios, or something else?
ED will use several metrics to evaluate regulations after they have been implemented. These metrics are as follows:
b. What steps has the agency taken to ensure that it has the data available with which to conduct a robust retrospective analysis?
The retrospective review team will develop a template for offices to use in collecting data on the metrics identified above. ED also is exploring using a customer survey on an ongoing basis to obtain feedback and data from the public on ED regulations.
c. How, if at all, will the agency incorporate experimental designs into retrospective analyses?
Although ED will not be incorporating experimental designs into its analyses, its retrospective analysis of a given set of regulations will begin with independent reviews from the following: (1) Program staff who are responsible for overseeing the implementation of the regulations; (2) the program attorney who advises the program staff on the legal aspects of administering the program; and (3) budget staff who are knowledgeable about the allowable uses of program funds. Each individual will independently complete a review survey that requests information on at least the following questions (which correspond to the prioritization factors described above):
VII. Publishing the Agency's Plan Online
a. Will the agency publish its retrospective review plan and available data on its Open Government Web site (http://www.agency.gov/open). If yes, please provide the name of a technical staff person who will be charged with updating the plans online.
ED will publish its plan on its Open Government website (http://www.ed.gov/open). As indicated above, ED intends to solicit public comment on its plan as well. The technical person who will be charged with updating the plan online is Kirk Winters, who can be reached at firstname.lastname@example.org.
[FR Doc. 2011-16901 Filed 7-5-11; 8:45 am]
BILLING CODE 4000-01-P
(1) When referring to the review of regulations throughout this plan, that review includes review of significant guidance documents and information collections associated with the regulations under review.
(2) See U.S. Department of Education, Statement of Regulatory Priorities, 75 FR 79509 (Dec. 20, 2010).
No documents available.
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Comment Period Closed
Jul 25 2011, at 11:59 PM ET
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Date Posted: Jul 6, 2011
CFR: 34 CFR Subtitles A and B
Federal Register Number: 2011-16901
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