52826 Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2021–0745] 

RIN 1625–AA00 

Safety Zone; Potomac River, Between 

Charles County, MD and King George 

County, VA 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule; request for 

comments. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

certain waters of the Potomac River. 

This action is necessary to provide for 

the safety of persons, and the marine 

environment from the potential safety 

hazards associated with construction 

operations at the new Governor Harry 

W. Nice/Senator Thomas ‘‘Mac’’ 

Middleton Memorial (US–301) Bridge, 

which will occur from 7 a.m. on 

September 20, 2021, through 8 p.m. on 

December 31, 2021. This rule will 

prohibit persons and vessels from being 

in the safety zone unless authorized by 

the Captain of the Port, Sector 

Maryland-National Capital Region or a 

designated representative. Due to the 

lengthy duration of the safety zone, the 

Coast Guard is accepting and reviewing 

public comments until October 15, 

2021. While the rule is being enforced, 

beginning September 20, 2021, the Coast 

Guard reserves the right to modify the 

safety zone if an issue is raised by the 

public comments that requires a 

modification. 

DATES: This rule is effective without 

actual notice from September 23, 2021 

through December 31, 2021. For the 

purposes of enforcement, actual notice 

will be issued from September 20, 2021, 

until September 23, 2021. Comments 

and related materials will be accepted 

and reviewed by the Coast Guard until 

October 25, 2021. 

ADDRESSES: Submit comments and 

material online at https://

www.regulations.gov (see Section II of 

SUPPLEMENTARY INFORMATION for 

additional details). To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2021– 

0745 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on DOCUMENTS on 

the line associated with this rule below 

‘‘SEARCH’’. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email LCDR Samuel Danus, Sector 

Maryland-NCR, Waterways Management 

Division, U.S. Coast Guard: Telephone 

410–576–2519, email Samuel.M.Danus@

uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. All 

comments received will be posted 

without change to https://

www.regulations.gov and will include 

any personal information you have 

provided. 

1. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking, indicate the specific section 

of this document to which each 

comment applies, and provide a reason 

for each suggestion or recommendation. 

You may submit your comments and 

material online at https://

www.regulations.gov by typing the docet 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on ‘‘Submit a 

Comment’’ on the line associated with 

this rulemaking. 

2. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

https://www.regulations.gov, type the 

docket number in the ‘‘SEARCH’’ box 

and click ‘‘SEARCH.’’ Click on Open 

Docket Folder on the line associated 

with this rulemaking. 

III. Background Information and 

Regulatory History 

On August 23, 2021, the Coast Guard 

established a temporary safety zone for 

certain waters of the Potomac River in 

association with the construction 

operations at the new Governor Harry 

W. Nice/Senator Thomas ‘‘Mac’’ 

Middleton Memorial (US–301) Bridge 

(86 FR 46970; Docket No. USCG–2021– 

0650). That rule had an effective date of 

7 a.m. on August 23, 2021, through 8 

p.m. on September 11, 2021. 

On September 10, 2021, SkanskaCorman-McLean, Joint Venture, notified 

the Coast Guard that the company will 

continue to set 200-ton pre-cast fender 

ring elements at the new Governor 

Harry W. Nice/Senator Thomas ‘‘Mac’’ 

Middleton Memorial (US–301) Bridge at 

Piers 43 and 44, which are adjacent on 

either side of the federal navigation 

channel from September 13, 2021, 

through December 31, 2021. The 

operation requires the daily movement 

in, anchoring, and movement out of a 

large crane, as well as nighttime diver 

work. This operation will impede 

vessels requiring the use of the channel. 

The U.S. Coast Guard established a 

temporary safety zone for certain waters 

of the Potomac River in association with 

the construction operations at the new 

Governor Harry W. Nice/Senator 

Thomas ‘‘Mac’’ Middleton Memorial 

(US–301) Bridge (Docket No. USCG– 

2021–0127) from 7 a.m. on September 

13, 2021, to 8 p.m. on September 18, 

2021. The U.S. Coast Guard issued a 

temporary rule (Docket No. USCG– 

2021–0127) for only a six calendar day 

period due to the timing when the 

notification was received by the 

company. Additional rulemaking is 

needed to cover the entire period of 

work provided by the company. 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because doing 

so would be impracticable. Construction 

operations involving crane heavy lifts at 

the new Governor Harry W. Nice/ 

Senator Thomas ‘‘Mac’’ Middleton 

Memorial (US–301) Bridge must occur 

within the federal navigation channel. 

Immediate action is needed to respond 

to the potential safety hazards 

associated with bridge construction. 

Hazards from the construction 

operations include low-hanging or 

falling ropes, cables, large piles and 

cement cast portions, dangerous 

projectiles, and or other debris. We must 

establish this safety zone by September 

20, 2021, to guard against these hazards 

and lack sufficient time to provide a 

reasonable comment period and then 

consider those comments before issuing 

the rule. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 


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Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Rules and Regulations 52827 

this rule would be contrary to the public 

interest because immediate action is 

needed to respond to the potential 

safety hazards associated with 

construction operations at the new 

Governor Harry W. Nice/Senator 

Thomas ‘‘Mac’’ Middleton Memorial 

(US–301) Bridge conducted within the 

federal navigation channel. 

IV. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 46 U.S.C. 70034 

(previously 33 U.S.C. 1231). The COTP 

has determined that potential hazards 

associated with bridge construction 

starting September 20, 2021 will be a 

safety concern for anyone within the 

federal navigation channel at the new 

Governor Harry W. Nice/Senator 

Thomas ‘‘Mac’’ Middleton Memorial 

(US–301) Bridge construction site. This 

rule is needed to protect personnel, 

vessels, and the marine environment in 

the navigable waters within the safety 

zone while the bridge is being 

constructed. 

V. Discussion of the Rule 

This rule establishes a temporary 

safety zone September 20, 2021, until 

December 31, 2021. The zone will be 

enforced as follows: 

Date(s) Hours 

September 20, 2021 through September 24, 2021 ................................. 7 a.m. September 20, 2021 through 8 p.m. September 24, 2021. 

September 25, 2021 through October 16, 2021 ...................................... Monday through Saturday, 7 a.m. to 8 p.m. 

October 18, 2021 through October 22, 2021 ........................................... 7 a.m. October 18, 2021 through 8 p.m. October 22, 2021. 

October 23, 2021 through December 31, 2021, except November 25, 

2021 and December 25, 2021.

Monday through Saturday, 7 a.m. to 8 p.m. 

The safety zone will cover all 

navigable waters of the Potomac River, 

encompassed by a line connecting the 

following points beginning at 

38°21′50.96′′ N, 076°59′22.04′′ W, thence 

south to 38°21′43.08′′ N, 076°59′20.55′′ 

W, thence west to 38°21′41.00′′ N, 

076°59′34.90′′ W, thence north to 

38°21′48.90′′ N, 076°59′36.80′′ W, and 

east back to the beginning point, located 

between Charles County, MD and King 

George County, VA. The temporary 

safety zone is approximately 450 yards 

in width and 270 yards in length. 

This regulation requires that the 

bridge owner post a sign facing the 

northern and southern approaches of 

the navigation channel labeled ‘‘BRIDGE 

WORK—DANGER—STAY AWAY’’ 

affixed to the sides of the on-scene 

marine equipment and vessels operating 

within the area of the safety zone 

Marine equipment means any vessel, 

barge or other equipment operated by 

Skanska-Corman-McLean, Joint Venture, 

or its subcontractors.This notice will 

consist of a diamond shaped sign 

(minimum 4 feet by 4 feet) with a 3-inch 

orange retro reflective border. The word 

‘‘DANGER’’ will be 10 inch black block 

letters centered on the sign with the 

words ‘‘BRIDGE WORK’’ and ‘‘STAY 

AWAY’’ in 6 inch black block letters 

placed above and below the word 

‘‘DANGER,’’ respectively, on a white 

background. 

The duration of the zone is intended 

to protect personnel, and the marine 

environment in these navigable waters 

while the tub sections are being set at 

the new Governor Harry W. Nice/ 

Senator Thomas ‘‘Mac’’ Middleton 

Memorial (US–301) Bridge at Piers 43 

and 44, which are adjacent on either 

side of the federal navigation channel. 

Except for marine equipment and 

vessels operated by Skanska-CormanMcLean, Joint Venture, or its 

subcontractors, no vessel or person will 

be permitted to enter the safety zone 

without obtaining permission from the 

COTP or a designated representative. 

Designated representative means any 

Coast Guard commissioned, warrant, or 

petty officer, including a Coast Guard 

coxswain, petty officer, or other officer 

operating a Coast Guard vessel and a 

Federal, State, and local officer 

designated by or assisting the Captain of 

the Port Maryland-National Capital 

Region (COTP) in the enforcement of the 

safety zone. To seek permission to enter, 

contact the COTP or the COTP’s 

representative by telephone number 

410–576–2693 or on Marine Band Radio 

VHF–FM channel 16 (156.8 MHz). 

Those in the safety zone must comply 

with all lawful orders or directions 

given to them by the COTP or the 

COTP’s designated representative. 

The U.S. Coast Guard may be assisted 

in the patrol and enforcement of the 

safety zone by Federal, State, and local 

agencies. 

The COTP will notify the public that 

the safety zone will be enforced by all 

appropriate means to the affected 

segments of the public, as practicable, in 

accordance with 33 CFR 165.7(a). 

VI. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

This rule has not been designated a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. Accordingly, 

this rule has not been reviewed by the 

Office of Management and Budget 

(OMB). 

This regulatory action determination 

is based on size and duration of the 

safety zone. The temporary safety zone 

is approximately 450 yards in width and 

270 yards in length. We anticipate that 

there will be no vessels that are unable 

to conduct business. Excursion vessels 

and commercial fishing vessels are not 

impacted by this rulemaking. Excursion 

vessels do not operate in this area, and 

commercial fishing vessels are not 

impacted because of their draft. Some 

towing vessels may be impacted. But, 

bridge project personnel have been 

conducting outreach throughout the 

project in order to coordinate with those 

vessels. Vessel traffic not required to use 

the navigation channel will be able to 

safely transit around the safety zone. 

Such vessels may be able to transit to 

the east of the federal navigation 

channel, as similar vertical clearance 

and water depth exist under the next 

bridge span to the east. This safety zone 

will impact a small designated area of 

the Potomac River for 87 days but 

coincides with the non-peak season for 

recreational boating. 

B. Impact on Small Entities 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601–612, as amended, 

requires Federal agencies to consider 

the potential impact of regulations on 

small entities during rulemaking. The 

term ‘‘small entities’’ comprises small 

businesses, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 


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52828 Federal Register / Vol. 86, No. 182 / Thursday, September 23, 2021 / Rules and Regulations 

fields, and governmental jurisdictions 

with populations of less than 50,000. 

The Coast Guard certifies under 5 U.S.C. 

605(b) that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

While some owners or operators of 

vessels intending to transit the 

temporary safety zone may be small 

entities, for the reasons stated in section 

VI.A above, this rule will not have a 

significant economic impact on any 

vessel owner or operator. 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we want to assist small entities in 

understanding this rule. If the rule 

would affect your small business, 

organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1– 

888–REG–FAIR (1–888–734–3247). The 

Coast Guard will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of the Coast Guard. 

C. Collection of Information 

This rule will not call for a new 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). 

D. Federalism and Indian Tribal 

Governments 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. We have 

analyzed this rule under that Order and 

have determined that it is consistent 

with the fundamental federalism 

principles and preemption requirements 

described in Executive Order 13132. 

Also, this rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

E. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves a safety 

zone lasting 6 total days that will 

prohibit entry within a portion of the 

Potomac River. It is categorically 

excluded from further review under 

paragraph L60(a) of Appendix A, Table 

1 of DHS Instruction Manual 023–01– 

001–01, Rev. 1. A Record of 

Environmental Consideration 

supporting this determination is 

available in the docket. For instructions 

on locating the docket, see the 

ADDRESSES section of this preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C. 70034, 70051; 33 CFR 

1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 00170.1, Revision No. 01.2. 

■ 2. Add § 165.T05–0745 to read as 

follows: 

§ 165.T05–0745 Safety Zone; Potomac 

River, Between Charles County, MD and 

King George County, VA. 

(a) Location. The following area is a 

safety zone: All navigable waters of the 

Potomac River, encompassed by a line 

connecting the following points 

beginning at 38°21′50.96′′ N, 

076°59′22.04′′ W, thence south to 

38°21′43.08′′ N, 076°59′20.55′′ W, thence 

west to 38°21′41.00′′ N, 076°59′34.90′′ 

W, thence north to 38°21′48.90′′ N, 

076°59′36.80′′ W, and east back to the 

beginning point, located between 

Charles County, MD and King George 

County, VA. These coordinates are 

based on datum NAD 83. 

(b) Definitions. As used in this 

section— 

Captain of the Port (COTP) means the 

Commander, U.S. Coast Guard Sector 

Maryland-National Capital Region. 

Designated representative means any 

Coast Guard commissioned, warrant, or 

petty officer, including a Coast Guard 

coxswain, petty officer, or other officer 

operating a Coast Guard vessel and a 

Federal, State, and local officer 

designated by or assisting the Captain of 

the Port Maryland-National Capital 

Region (COTP) in the enforcement of the 

safety zone. 

Marine equipment means any vessel, 

barge or other equipment operated by 

Skanska-Corman-McLean, Joint Venture, 

or its subcontractors. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, you may not enter the safety 

zone described in paragraph (a) of this 

section unless authorized by the COTP 

or the COTP’s designated representative. 

(2) To seek permission to enter, 

contact the COTP or the COTP’s 

representative by telephone number 

410–576–2693 or on Marine Band Radio 

VHF–FM channel 16 (156.8 MHz). 

Those in the safety zone must comply 

with all lawful orders or directions 

given to them by the COTP or the 

COTP’s designated representative. 

(d) Enforcement officials. The U.S. 

Coast Guard may be assisted in the 


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patrol and enforcement of the safety 

zone by Federal, State, and local 

agencies. 

(e) Enforcement. This safety zone will 

be enforced during the period described 

in paragraph (f) of this section. A 

‘‘BRIDGE WORK—DANGER—STAY 

AWAY’’ sign facing the northern and 

southern approaches of the navigation 

channel will be posted on the sides of 

the marine equipment on-scene within 

the location described in paragraph (a) 

of this section. 

(f) Effective period. This section is 

effective from 7 a.m. to 8 p.m. on 

Monday through Saturday from 

September 20, 2021, through December 

31, 2021. 

(g) Enforcement period. (1) The 

section will be enforced during the 

following periods: from 7 a.m. 

September 20, 2021, through 8 p.m. 

September 24, 2021; from 7 a.m. 

October 18, 2021 through 8 p.m. 

October 22, 2021; from 7 a.m. to 8 p.m. 

on September 25, 2021, September 27, 

2021, September 28, 2021, September 

29, 2021, September, 30, 2021, October 

1, 2021, October 2, 2021, October 4, 

2021, October 5, 2021, October 6, 2021, 

October 7, 2021, October 8, 2021, 

October 9, 2021, October 11, 2021, 

October 12, 2021, October 13, 2021, 

October 14, 2021, October 15, 2021, 

October 16, 2021, October 23, 2021, 

October 25, 2021, October 26, 2021, 

October 27, 2021, October 28, 2021, 

October 29, 2021, October 30, 2021, 

November 1, 2021, November 2, 2021, 

November 3, 2021, November 4, 2021 

November 5, 2021, November 6, 2021, 

November 8, 2021, November 9, 2021, 

November 10, 2021, November 11, 2021, 

November 12, 2021, November 13, 2021, 

November 15, 2021, November 16, 2021, 

November 17, 2021, November 18, 2021, 

November 19, 2021, November 20, 2021, 

November 22, 2021, November 23, 2021, 

November 24, 2021, November 26, 2021, 

November 27, 2021, November 29, 2021, 

November 30, 2021, December 1, 2021, 

December 2, 2021, December 3, 2021, 

December 4, 2021 December 6, 2021, 

December, 7, 2021, December 8, 2021, 

December 9, 2021, December 10, 2021, 

December 11, 2021, December 13, 2021, 

December 14, 2021, December 15, 2021, 

December 16, 2021, December 17, 2021, 

December 18, 2021, December 20, 2021, 

December 21, 2021, December 22, 2021, 

December 23, 2021, December 24, 2021, 

December 27, 2021, December 28, 2021 

December 29, 2021, December 30, 2021 

and December 31, 2021. 

Dated: September 17, 2021. 

David E. O’Connell, 

Commander, U.S. Coast Guard, Captain of 

the Port Sector Maryland-National Capital 

Region. 

[FR Doc. 2021–20587 Filed 9–22–21; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF EDUCATION 

34 CFR Part 81 

[Docket ID ED–2021–OFO–0121] 

RIN 1880–AA91 

Standardizing Filing Procedures for 

Administrative Appeals 

AGENCY: Office of Finance and 

Operations, Department of Education. 

ACTION: Final regulations. 

SUMMARY: The U.S. Department of 

Education (Department) amends the 

regulations regarding administrative 

hearings and appeals to require filing 

using the Office of Hearings and 

Appeals (OHA) electronic filing system 

(OES). 

DATES: These final regulations are 

effective September 23, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Anthony Cummings, 400 Maryland 

Avenue SW, Room 10089, Potomac 

Center Plaza, Washington, DC 20202. 

Telephone: (202) 245–7185. Email: 

Anthony.Cummings@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD) or a text 

telephone (TTY), call the Federal Relay 

Service (FRS), toll free, at 1–800–877– 

8339. 

SUPPLEMENTARY INFORMATION: As 

explained more fully below, the 

Department is amending its regulations 

in 34 CFR part 81 to require the use of 

electronic filing (e-filing) in certain 

cases before OHA, and in appeals of 

decisions issued by OHA to the Office 

of the Secretary (OS), involving the 

General Education Provisions Act 

(GEPA) or applying the procedures 

applicable to GEPA matters. These 

amendments to the regulations also 

provide an opportunity for parties to file 

a motion showing good cause that they 

are unable to utilize electronic filing. 

Summary of Changes: We discuss 

substantive issues under the sections of 

the regulations to which they pertain. 

Generally, we do not address regulatory 

provisions that are technical or 

otherwise minor in effect. 

Part 81—General Education Provisions 

Act—Enforcement 

Statute: Under 20 U.S.C. 1221e–3, the 

Secretary is vested with broad authority 

to ‘‘make, promulgate, issue, rescind, 

and amend rules and regulations 

governing the manner of operation of, 

and governing the applicable programs 

administered by, the Department.’’ This 

provision is mirrored in 20 U.S.C. 3474, 

providing the Secretary authority to 

‘‘prescribe such rules and regulations as 

the Secretary determines necessary or 

appropriate to administer and manage 

the functions of the Secretary or the 

Department.’’ In particular, under 20 

U.S.C. 1234(f)(1), ‘‘the Secretary shall 

prescribe by regulation’’ the rules for 

conducting proceedings within the 

Office of Administrative Law Judges 

(OALJ). Such rules must conform to the 

elements of the Administrative 

Procedure Act (APA) at 5 U.S.C. 554, 

556, and 557. 

Current Regulations: The current 

regulations in 34 CFR part 81 govern the 

enforcement of legal requirements under 

applicable programs administered by 

the Department and implement part E of 

GEPA. These regulations primarily 

concern the functioning of OALJ, 

including its hearing procedures. 

Section 81.2 provides definitions, while 

§§ 81.11, 81.12, 81.20, and 81.42 

provide procedures and requirements 

for parties filing documents with the 

Department in OALJ hearings. Sections 

81.41 and 81.44 provide procedures for 

how OALJ and the Secretary issue 

decisions. These regulations permit 

parties to file with the Department via 

mail, hand-delivery, or facsimile 

transmission. They require OALJ and 

the Secretary to issue decisions to the 

parties via certified mail, return receipt 

requested. 

New Regulations: The new regulations 

at §§ 81.2, 81.11, 81.12, 81.20, 81.41, 

81.42, and 81.44 require e-filing by the 

parties and the Department, unless, 

upon motion, a party shows good cause 

for why the document cannot be filed 

electronically. To accommodate e-filing, 

the Department is making other 

conforming amendments in part 81. 

Specifically, we are revising 

§§ 81.12(d)(1) and 81.42(g) to provide 

that the date of an e-filing is the date it 

is submitted to OES or, if the 

Administrative Law Judge (ALJ) has 

permitted a paper submission, the date 

the material is hand-delivered or 

mailed. We are revising § 81.12(e) to 

require a party filing electronically to 

ensure that the Department receives a 

complete and legible copy of the 

document in a format for electronic 

filing permitted under OHA procedures. 

Those procedures are currently 

accessible at https://oha.ed.gov/onlinefiling/. We are also revising §§ 81.41(c) 

and 81.44(b) to generally require the 

Department to e-file initial and final 


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