Title 34
SECTION 9.4
9.4 Policies.
§ 9.4 Policies.The following policies govern the development and issuance of regulations at the Department:
(a) Statutory text, read plainly and construed according to its ordinary public meaning at the time of enactment, authoritatively prescribes both the Department's power to act and how it may act. In connection with rulemaking, the threshold question for the Department is whether Congress has directly authorized the proposed action, based on the principle that Congress knows to speak in plain terms when it wishes to enlarge agency authority and when it wishes to circumscribe it. If, after exhausting all traditional rules of construction, the Department fairly determines a given statute is ambiguous, then it may exercise its interpretative authority and engage in rulemaking, but only after -
(1) Determining Congress has expressly delegated definitional and interpretative regulatory authority with respect to a given statute or provision; or
(2)(i) Given the agency's general rulemaking authority in 410 of the General Education Provisions Act (GEPA) (20 U.S.C. 1221e-3) and section 414 of the Department of Education Organization Act (DEOA) (20 U.S.C. 3474), determining Congress has impliedly delegated definitional and interpretative regulatory authority through, e.g., ambiguous language; and
(ii) Determining the interpretative issue presents no “major question” nor other circumstances supporting the inference that Congress did not intend the Department to decide the question.
(b) In considering whether to propose a regulation, policymakers at the Department will consider whether the specific problem to be addressed requires agency action, whether existing rules have created or contributed to the problem and should be revised or eliminated, and whether there are any other reasonable alternatives that obviate the need for a new regulation.
(c) All regulations must be authorized by statute, consistent with the Constitution, and promulgated in accordance with the Administrative Procedure Act.
(d) The Department must base the regulations on the best available evidence and data, and comply with all relevant laws, including the Information Quality Act, 44 U.S.C. 3516, note; the Foundations for Evidence-Based Policymaking Act of 2018, Public Law 115-435, 132 Stat. 5529; and OMB's “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (Feb. 22, 2002).
(e) The Department should write its regulations clearly and in plain language, consistent with Executive Order 13563.
(f) Regulations should minimize burdens where feasible. Where they impose burdens, the Department should narrowly tailor regulations to address the identified specific problem in a manner that maximizes net benefits.
(g) Unless required by law, the Department should issue regulations only when it expects their benefits to exceed their costs, recognizing that some costs and benefits are difficult to quantify.
(h) Once issued, the Department should periodically review and revise regulations and other agency actions to ensure that they remain net-beneficial and continue to meet the needs that they sought to address.
(i) Full public participation should be encouraged in rulemaking actions, primarily through engagement in public meetings, written comment, and, where required or otherwise appropriate, negotiated rulemaking.
(j) The process for issuing a rule must allow for proper consideration of the economic impact of the rule; thus, the promulgation of rules that are expected to impose greater economic costs should be accompanied by additional procedural protections and additional avenues for public participation.