NSYNC or Oasis? Who’s the Sage?
NSYNC or Oasis? Who’s the Sage?
As we shared in January, the Office of Information & Regulatory Affairs (OIRA) maintains a website to share information about rulemaking. The page for the 2022 Title IX proposed rules includes a timetable for when the Final Rules will be published; currently, the date listed for Final Action is May, 00, 2023. This may indicate an intention (or hope) by the Department of Education that the rules will be issued by that date, but it is by no means a promise or guarantee.
But May seems unlikely or impossible when reflecting on OIRA’s process and obligations, as well as when reviewing the timeline for the previous regulations.
OIRA and the Obligation to Offer Meetings
OIRA’s responsibilities include reviewing draft and final regulations proposed by federal agencies and providing centralized oversight and coordination of the regulatory process.
Executive Order 12866 requires OIRA to hold meetings with representatives from affected agencies and other interested parties as part of its review of significant regulatory actions. The Executive Order defines “significant regulatory actions” as those that are likely to result in a rule that may:
- have an annual effect on the economy 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;
- create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
- materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
- raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order.
For significant regulatory actions, OIRA is required to hold meetings with representatives from affected agencies and other interested parties before completing its review. OIRA’s review is generally limited to 90 days from receipt of a proposed regulation from an agency, although extensions are possible. This Frequently Asked Questions page from OIRA may be helpful.
OIRA’s Timeline Ahead of the 2020 Title IX Regulations
OIRA held about fifty meetings prior to the release of rules proposed in 2018, starting September 13, 2018 and ending on October 31, 2018. The proposed rules were published November 29, 2018.
The comment period closed in February 2019. This OIRA document shows a placeholder date for Final Action as September 00, 2019. Onlookers are not aware of any regulatory activities occurring in September 2019.
But another OIRA document shows a placeholder date for Final Action as November 00, 2019. And November 12, 2019 is when OIRA resumed meeting with representatives from the Department of Education and interested parties, such as attorneys from state offices of attorneys general, advocacy groups, lobbyists, and more
Interested parties expected that the end of these OIRA meetings meant the final regulations would soon be published. The last meeting was held on March 27, 2020, and the final rules were published on May 19, 2020, just about two months later (with an unofficial version published May 6). Implementation was required 87 days after the official publication, August 14, 2020.
2023: A Similar Path?
We have heard from many people concerns about when the regulations will come out, and what sort of turnaround time they will have for compliance. Few if any people outside the Department of Education (and OIRA) know for sure.
But if the 2022 Proposed Rules follow a similar path, OIRA could start having meetings during May 2023. That process may go on for a number of months, considering the level of interest; recall there were around 240,000 comments submitted.
And if history is indeed a guide, several months after those meetings conclude, the final regulations will be published. We do not see a path for the Department to avoid the OMB OIRA review process given that the Rule was declared significant in the 2020 Proposed and Final and the 2022 Proposed.
As of the date of publication, the OMB OIRA tracking website indicates only one Regulation of the Department of Education under consideration, Gainful Employment.
Grand River Solutions experts will be eagerly awaiting any updates from the Department of Education on the Title IX regulations and will share them with you. Follow us on LinkedIn and Facebook, and check out our dedicated website featuring a Spotlight on the Proposed Title IX Rules.
The Title IX Rule is likely on its way, but perhaps not on the timeline that the Department most recently published. Justin Timberlake would have you believe “It’s Gonna be May,” but the British rockers Oasis (who are known to look to Executive Order 12866) would claim, “I Said, Maybe.”