§ 1406. — Requirements for prescribing regulations.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 20USC1406]
TITLE 20--EDUCATION
CHAPTER 33--EDUCATION OF INDIVIDUALS WITH DISABILITIES
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 1406. Requirements for prescribing regulations
(a) Public comment period
The Secretary shall provide a public comment period of at least 90
days on any regulation proposed under subchapter II or subchapter III of
this chapter on which an opportunity for public comment is otherwise
required by law.
(b) Protections provided to children
The Secretary may not implement, or publish in final form, any
regulation prescribed pursuant to this chapter that would procedurally
or substantively lessen the protections provided to children with
disabilities under this chapter, as embodied in regulations in effect on
July 20, 1983 (particularly as such protections relate to parental
consent to initial evaluation or initial placement in special education,
least restrictive environment, related services, timelines, attendance
of evaluation personnel at individualized education program meetings, or
qualifications of personnel), except to the extent that such regulation
reflects the clear and unequivocal intent of the Congress in
legislation.
(c) Policy letters and statements
The Secretary may not, through policy letters or other statements,
establish a rule that is required for compliance with, and eligibility
under, this subchapter without following the requirements of section 553
of title 5.
(d) Correspondence from Department of Education describing
interpretations of this chapter
(1) In general
The Secretary shall, on a quarterly basis, publish in the
Federal Register, and widely disseminate to interested entities
through various additional forms of communication, a list of
correspondence from the Department of Education received by
individuals during the previous quarter that describes the
interpretations of the Department of Education of this chapter or
the regulations implemented pursuant to this chapter.
(2) Additional information
For each item of correspondence published in a list under
paragraph (1), the Secretary shall identify the topic addressed by
the correspondence and shall include such other summary information
as the Secretary determines to be appropriate.
(e) Issues of national significance
If the Secretary receives a written request regarding a policy,
question, or interpretation under subchapter II of this chapter, and
determines that it raises an issue of general interest or applicability
of national significance to the implementation of subchapter II of this
chapter, the Secretary shall--
(1) include a statement to that effect in any written response;
(2) widely disseminate that response to State educational
agencies, local educational agencies, parent and advocacy
organizations, and other interested organizations, subject to
applicable laws relating to confidentiality of information; and
(3) not later than one year after the date on which the
Secretary responds to the written request, issue written guidance on
such policy, question, or interpretation through such means as the
Secretary determines to be appropriate and consistent with law, such
as a policy memorandum, notice of interpretation, or notice of
proposed rulemaking.
(f) Explanation
Any written response by the Secretary under subsection (e) of this
section regarding a policy, question, or interpretation under subchapter
II of this chapter shall include an explanation that the written
response--
(1) is provided as informal guidance and is not legally binding;
and
(2) represents the interpretation by the Department of Education
of the applicable statutory or regulatory requirements in the
context of the specific facts presented.
(Pub. L. 91-230, title VI, Sec. 607, as added Pub. L. 105-17, title I,
Sec. 101, June 4, 1997, 111 Stat. 47.)
Prior Provisions
Prior sections 1406 to 1409 were omitted in the general amendment of
subchapters I to IV of this chapter by Pub. L. 105-17.
Section 1406, Pub. L. 91-230, title VI, Sec. 607, as added Pub. L.
94-142, Sec. 6(a), Nov. 29, 1975, 89 Stat. 795; amended Pub. L. 98-199,
Secs. 3(b), 5, Dec. 2, 1983, 97 Stat. 1358; Pub. L. 99-457, title IV,
Sec. 401, Oct. 8, 1986, 100 Stat. 1172; Pub. L. 100-630, title I,
Sec. 101(c), Nov. 7, 1988, 102 Stat. 3290, related to grants for removal
of architectural barriers.
Section 1407, Pub. L. 91-230, title VI, Sec. 608, as added Pub. L.
98-199, Sec. 6, Dec. 2, 1983, 97 Stat. 1359; amended Pub. L. 100-630,
title I, Sec. 101(d), Nov. 7, 1988, 102 Stat. 3290; Pub. L. 101-476,
title IX, Sec. 901(b)(24), Oct. 30, 1990, 104 Stat. 1143; Pub. L. 102-
119, Sec. 25(b), Oct. 7, 1991, 105 Stat. 607, related to regulation
requirements.
Section 1408, Pub. L. 91-230, title VI, Sec. 609, as added Pub. L.
99-457, title II, Sec. 202, Oct. 8, 1986, 100 Stat. 1158, related to
eligibility for financial assistance.
Section 1409, Pub. L. 91-230, title VI, Sec. 610, as added Pub. L.
101-476, title I, Sec. 104, Oct. 30, 1990, 104 Stat. 1106, provided
administrative provisions applicable to former subchapters III to VII of
this chapter and former section 1418 of this title.
