Title 34

SECTION 9.10

9.10 Special procedures for economically significant rules and high-impact rules.

§ 9.10 Special procedures for economically significant rules and high-impact rules.

(a) Definitions. (1) Economically significant rule means a significant rule that is likely to impose a total annual cost on the U.S. economy (without regard to estimated benefits) of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities.

(2) High-impact rule means a significant rule that is likely to impose -

(i) A total annual cost on the U.S. economy (without regard to estimated benefits) of $500 million or more; or

(ii) A total net loss of at least 250,000 full-time jobs in the U.S. over the 5 years following the effective date of the rule (not counting any jobs relating to new regulatory compliance).

(b) Additional requirements for NPRMs. (1) In addition to the requirements set forth in § 9.9(g), an NPRM for an economically significant rule or a high-impact rule will include a discussion explaining an achievable objective for the rule and the metrics by which the POC will measure progress toward that objective.

(2) Absent unusual circumstances and unless approved by the RRTF (in consultation with OMB), the comment period for an economically significant rule will be at least 60 calendar days and for a high-impact rule will be at least 90 calendar days. If a rule is determined to be an economically significant rule or a high-impact rule after the publication of the NPRM, the responsible POC will consider publishing notification in the Federal Register informing the public of the change in classification and extending or reopening the comment period by at least 30 calendar days and allowing further public comment as appropriate, including comment on the change in classification.

(c) Procedures for formal hearings - (1) Petitions for hearings. Following publication of an NPRM for an economically significant rule or a high-impact rule that has not gone through negotiated rulemaking, and before the close of the comment period, any interested party may file in the docket designated for formal hearing petitions a petition asking the Department to hold a formal hearing on the proposed rule in accordance with this paragraph (c).

(2) Mandatory hearing for high-impact rule. In the case of a proposed high-impact rule, the Department will grant the petition for a formal hearing if the petition makes a plausible prima facie showing that -

(i) The proposed rule depends on conclusions concerning one or more specific scientific, technical, economic, or other complex factual issues that are genuinely in dispute or that may not satisfy the requirements of the Information Quality Act;

(ii) The ordinary public comment process, including any additional procedures such as negotiated rulemaking, is unlikely to provide the POC with an adequate examination of the issues to permit a fully informed judgment on the dispute; and

(iii) The resolution of the disputed factual issues would likely have a material effect on the costs and benefits of the proposed rule or on whether the proposed rule would achieve the statutory purpose.

(3) Authority to deny hearing for economically significant rule. In the case of a proposed economically significant rule, the Department may deny a petition for a formal hearing that includes the showing described in paragraph (c)(2) of this section but only if the Department reasonably determines that -

(i) The requested hearing would not advance the consideration of the proposed rule and the responsible POC's ability to make the rulemaking determinations required under this part; or

(ii) The hearing would unreasonably delay completion of the rulemaking in light of a compelling need or a statutory mandate for prompt regulatory action.

(4) Denial of petition. If the Department denies a petition for a formal hearing under this section, in whole or in part, the Department will include a detailed explanation of the factual basis for the denial in the rulemaking record, including findings on each of the relevant factors identified in paragraph (c)(2) or (3) of this section, and inform the requester of the decision. The Department will only deny a good faith petition for a formal hearing based on the factors identified in paragraph (c)(2) or (3) of this section.

(5) Notice and scope of hearing. If the Department grants a petition, in whole or in part, for a formal hearing under this section, the Department will publish notification of the hearing in the Federal Register at least 30 calendar days before the date of the hearing. The notification will specify the proposed rule at issue and the specific factual issues to be considered in the hearing. The scope of the hearing will be limited to the factual issues specified in the notification.

(6) Hearing process. A formal hearing for purposes of this section will be conducted using the procedures specified in 34 CFR 81.1 through 81.20. The hearing official may allow for virtual hearings.

(7) Actions following hearing. (i) Following completion of the formal hearing process, the responsible POC will consider the record of the hearing and, subject to the approval of the RRTF (in consultation with OMB), make a reasoned determination whether to -

(A) Terminate the rulemaking;

(B) Proceed with the rulemaking as proposed; or

(ii) If the decision is made to terminate the rulemaking, the responsible POC will publish notification in the Federal Register announcing the decision and explaining the reasons for it.

(iii) If the decision is made to finalize the proposed rule without material modifications, the responsible POC will explain the reasons for its decision and its responses to the hearing record in the preamble to the final rule, in accordance with paragraph (d) of this section.

(iv) If the decision is made to modify the proposed rule in a manner that is not a logical outgrowth of the NPRM, the responsible POC will, subject to the approval of the RRTF (in consultation with OMB), publish a new or supplemental NPRM in the Federal Register explaining the POC's responses to, and analysis of, the hearing record, setting forth the modifications to the proposed rule, and providing an additional reasonable opportunity for public comment on the proposed modified rule.

(8) Relationship to interagency process. The formal hearing procedures under this paragraph (c) will not impede or interfere with the OMB interagency review process for the proposed rulemaking.

(d) Additional requirements for final rules. (1) In addition to the requirements set forth in § 9.9(j), the preamble to a final economically significant rule or a final high-impact rule will include -

(i) A discussion explaining the POC's reasoned final determination that the rule as adopted is necessary to achieve the objective identified in the NPRM in light of the full administrative record and does not deviate from the metrics previously identified by the POC for measuring progress toward that objective; and

(ii) In accordance with paragraph (c)(7)(iii) of this section, the POC's responses to and analysis of the record of any formal hearing held under paragraph (c) of this section.

(2) Absent exceptional circumstances and unless approved by the Secretary or the Leadership Council (in consultation with OMB), the POC will adopt as a final economically significant rule or final high-impact rule the regulatory alternative that maximizes net benefits and achieves the relevant objectives.

(e) Additional requirements for retrospective reviews. For each economically significant rule or high-impact rule, the responsible POC will conduct a retrospective review, and publish a regulatory impact report in the Federal Register every 5 years after the effective date of the rule while the rule remains in effect. The regulatory impact report will include, at a minimum -

(1) An assessment of the impacts, including any costs, of the rule on regulated entities;

(2) A determination of how the actual costs and benefits of the rule have varied from those anticipated when the rule was issued; and

(3) An assessment of the effectiveness, benefits, and unintended consequences of the rule in producing the regulatory objectives it was adopted to achieve.

(f) Waiver and modification. The procedures required by this section may be waived or modified as necessary with the approval of the RRO or the Secretary.