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A Refresher on the Rulemaking Process

January 5, 2022 Beth Devonshire D.Stafford & Associates

Adapted from “Legislation and Regulations: A Primer on the Legislative and Regulatory Process Related to Clery and Title IX” – NACCOP Journal 2021

On December 10, 2022, U.S. Department of Education Assistant Secretary for Civil Rights Catherine E. Lhamon issued a statement announcing that the Department “anticipates issuing proposed rulemaking by April 2022.”[1] Lhamon’s announcement refers directly to updating the portion of the unified agenda on Title IX or “Nondiscrimination on the basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.”[2] While this feels like “deja vu all over again,” it is a good time to review the Rulemaking Process. As a quick reminder, starting in 2013, Lhamon served as the Assistant Secretary for the Office for Civil Rights for three and a half years during the Obama administration, and was instrumental in shaping the administration's vision regarding Title IX. These efforts included issuance of “Not Alone, the First Report of the White House Task Force to Protect Students from Sexual Assault"[3] as well as efforts regarding the rights of transgendered students.[4]

The Regulations:

Regulations are found in the Code of Federal Regulations (CFR) which are “the codification of the general and permanent rules published in the Federal Register by the executive department and agencies of the Federal Government.”[5]  The Title IX regulations can be found at 34 C.F.R § 106. [6]

Agencies initiate the rulemaking process for a variety of reasons, including lawsuits, petitions filed by interest groups, statutory obligation, or as in this case, to reflect a new administration’s priorities.[7] The public learns of the process when the administration publishes its “Regulatory Plan” and an “Agenda of Regulatory and Deregulatory Actions.” Secretary Lhamon’s December 10, 2021 statement served as an update on the “unified agenda and regulatory plan.”

Drafting the Rule:

The Department of Education is not required to seek public input before issuing, drafting, and publishing regulations in the Federal Register; via a Notice of Public Rulemaking [NPRM]. Instead, those who work at the agency are responsible for drafting the regulations. While they may seek out input from experts and those outside the agency prior to their publication, it is not required. Instead, it is only after the NPRM has been published in the Federal Register that public input is typically sought. However, in drafting this NPRM, the Department is likely to utilize the numerous comments that were received from various stakeholders during the virtual public hearings from June 7 through June 11, 2021.[8] These virtual hearings, which were the first of its kind, provided additional opportunities for various stakeholders to provide their input.

Notice and Comment:

Once the NPRM has been published, the public will be allowed between 30-60 days to submit their comments.[9] The agency may reopen the comment period if they are not satisfied with the comments or if new issues have been raised which need additional attention.[10] Once the notice and comment period closes, the Department reviews all substantive comments and determines if or how they impact the proposed rule.[11]  However, the Department does not have to respond to every comment. At the Law and Policy Conference, then Acting Assistant Secretary Suzanne Goldberg encouraged members to submit comments, either as an individual, as an association, or as a group.[12] 

Additionally, there is an exception to the notice-and-comment requirement for legislative rules if the agency has “good cause” to dispense with these procedures.[13] However, the Department has not indicated that it will dispense with this step in the Rulemaking process for the upcoming Title IX Regulations.

 Finalization:

After all the comments have been received, those who work for the Department begin the task of writing the final rule. Final rules include a preamble, including the summary, effective date, and supplementary information.[14] The regulatory text sets out amendments to the Code of the Federal Register (CFR), and each amendment begins with instructions on how to change the CFR.[15]

The final rule may decide to change certain aspects of the proposed rule to reflect some of the points that were made in the comments. Once the final regulations have been written, they are sent to the Office of Management and Budget (OMB) for review and comment by the Office of Information and Regulatory Affairs (OIRA) (a statutory part of OMB within the Executive Office of the President)[16] before they are finalized.[17]  OIRA is responsible for ensuring proposed regulations comply with regulatory principles, ensure the President’s priorities and policies are reflected in agency rules, ensure coordination with other agencies, and consider the consequences of rules before they are finalized.[18]

Once received from OMB, the Agency will publish the Final Rule in the Federal Register. Also included in the Final Rule is its date in which the regulations take effect. Rules typically are not effective for 30+ days, and major rules are required to have a 60-day delayed effective date.[19] 

Agencies may issue “interpretive rules, policy statements, and other guidance documents” to help stakeholders better understand the rules. For example, in July 2021, the Department issued Questions and Answers on the Title IX Regulations on Sexual Harassment to assist schools in their interpretation and implementation of the 2020 Regulations.[20]  

As you can see, the Title IX Rulemaking process is in the beginning stages, and if history is a guide, finalization will likely not be completed until around this time next year. As such, campuses will have to decide the impact that the April 2022 NPRM will have on their policies and procedures for the upcoming academic year. 

 

 

[1] U.S. Department of Education, Statement by U.S. Department of Education Secretary for Civil Rights Catherine E. Lhamon on Title IX Update in Fall 2021 Unified Agenda and Regulatory Plan, December 10, 2021 https://www.ed.gov/news/press-releases/statement-us-department-education-assistant-secretary-office-civil-rights-catherine-lhamon-title-ix-update-fall-2021-unified-agenda-and-regulatory-plan

[2] U.S. Department of Education, Fall 2021 Unified Agenda. https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1870-AA16

[3]Not Alone: The First Report of the White House Taskforce to Protect Students from Sexual Assault, https://www.justice.gov/archives/ovw/page/file/905942/download

[4] U.S. Department of Education, Officer for Civil Rights 2017 Dear Colleague Letter, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf

[5] National Archives, About the Code of Federal Regulations, https://www.archives.gov/federal-register/cfr/about.html

[6] Electronic Code of Federal Regulations, Title 34 – Education, https://www.ecfr.gov/cgi-bin/text-idx?SID=97e035e884e1faf495901228a31f691c&mc=true&tpl=/ecfrbrowse/Title34/34tab_02.tpl

[7] A Guide to the Rulemaking Process, prepared by the Office of the Federal Register, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf

[8] https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf

[9] Id.

[10] Id.

[11] Natow, Rebecca S. Higher Education Rulemaking: The Politics of Creating Regulatory Policy. Johns Hopkins University Press, 2017. 

[12] NASPA Q&A on the Notice and Comment Period, http://apps.naspa.org/files/Federal%20Regulatory%20Notice%20and%20Comment%20Period%20Q&A.pdf

[13] Congressional Research Service. (2017, March 27). A brief overview of rulemaking and Judicial Review: EveryCRSReport.com. Retrieved December 20, 2021, from https://www.everycrsreport.com/reports/R41546.html#fn53   

[14] A Guide to the Rulemaking Process, prepared by the Office of the Federal Register, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf

[15] Id.

[16] Office of Management and Budget, Information and Regulatory Affairs, https://www.whitehouse.gov/omb/information-regulatory-affairs/

[17] Natow, Rebecca S. Higher Education Rulemaking: the Politics of Creating Regulatory Policy. Johns Hopkins University Press, 2017. 

[18] DoD Open Government, U.S. Department of Defense, DoD Regulatory Program, “OMB Approval Process”, https://open.defense.gov/Regulatory-Program/Process/OMBApproval/

[19] A Guide to the Rulemaking Process, prepared by the Office of the Federal Register, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf

[20]U.S. Department of Education Office for Civil Rights. Questions and Answers on the Title IX Regulations on Sexual Harassment, https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf