Rule2022-17422
National Institute on Disability, Independent Living, and Rehabilitation Research
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 15, 2022
Effective
September 14, 2022
Issuing agencies
Health and Human Services DepartmentCommunity Living Administration
Abstract
The Administration for Community Living (ACL) within the Department of Health and Human Services (HHS or the Department) is amending its regulations for the National Institute on Disability, Independent Living and Rehabilitation Research (NIDILRR). These minor amendments to NIDILRR's peer review criteria allow NIDILRR to better evaluate the extent to which our grant applicants conduct outreach to people with disabilities and people from other groups that traditionally have been underserved and underrepresented, as described in Executive Order 13985, and emphasize the need for research and development activities that apply appropriate engineering knowledge and techniques within NIDILRR's Rehabilitation Engineering Research Centers (RERC) program.
Full Text
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<title>Federal Register, Volume 87 Issue 156 (Monday, August 15, 2022)</title>
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[Federal Register Volume 87, Number 156 (Monday, August 15, 2022)]
[Rules and Regulations]
[Pages 50000-50004]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17422]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living
45 CFR Part 1330
RIN 0985-AA16
National Institute on Disability, Independent Living, and
Rehabilitation Research
AGENCY: Administration for Community Living, Department of Health and
Human Services.
ACTION: Final rule.
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SUMMARY: The Administration for Community Living (ACL) within the
Department of Health and Human Services (HHS or the Department) is
amending its regulations for the National Institute on Disability,
Independent Living and Rehabilitation Research (NIDILRR). These minor
amendments to NIDILRR's peer review criteria allow NIDILRR to better
evaluate the extent to which our grant applicants conduct outreach to
people with disabilities and people from other groups that
traditionally have been underserved and underrepresented, as described
in Executive Order 13985, and emphasize the need for research and
development activities that apply appropriate engineering knowledge and
techniques within NIDILRR's Rehabilitation Engineering Research Centers
(RERC) program.
DATES: These final regulations are effective September 14, 2022.
FOR FURTHER INFORMATION CONTACT: Phillip Beatty, Director, NIDILRR
Office of Research Sciences, Administration for Community Living,
Department of Health and Human Services, 330 C Street SW, Washington,
DC 20201. Email: <a href="/cdn-cgi/l/email-protection#0b7b63626767627b25696e6a7f7f724b6a686725636378256c647d"><span class="__cf_email__" data-cfemail="98e8f0f1f4f4f1e8b6fafdf9ecece1d8f9fbf4b6f0f0ebb6fff7ee">[email protected]</span></a>, Telephone: (202) 795-7305.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
ACL publishes this final rule under the authority granted to the
Director of the National Institute on Disability, Independent Living,
and Rehabilitation Research (the Director), under 29 U.S.C. 762(f) to
provide for scientific peer review of all applications for financial
assistance for research, training, and demonstrations projects over
which the Director has authority; and under 29 U.S.C. 764(b)(3) to
establish and support Rehabilitation Engineering Research Centers
(RERCs).
II. Background
The HHS regulation for NIDILRR programs was developed and finalized
in 2016 following the transfer of NIDILRR to ACL and HHS from the
Department of Education, as required by the Workforce Innovation and
Opportunity Act (WIOA) of 2014. NIDILRR's mission is to generate new
knowledge and to promote its effective use to improve the abilities of
individuals with disabilities to perform
[[Page 50001]]
activities of their choice in the community as well as to expand
society's capacity to provide full opportunities and accommodations for
individuals with disabilities. As the primary research enterprise
within ACL, NIDILRR's mission is highly complementary to the
overarching mission of ACL to maximize the independence, well-being,
and health of older adults, people with disabilities across the
lifespan, and their families and caregivers. NIDILRR programs address a
wide range of disabilities and impairments across all age groups and
promote health and function, community living and participation, and
employment. To accomplish these goals, NIDILRR invests in research,
knowledge translation, and capacity-building activities through its
discretionary grant-funding authorities.
This final rule provides minor but important updates to the NIDILRR
rule at 45 CFR part 1330).
III. Provisions of the Proposed Regulations
The first update to 45 CFR part 1330 is directly responsive to
Executive Order 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 FR 7009
(Jan. 20, 2021) (E.O.). The purpose of the update is to enable NIDILRR
to better evaluate, through the peer review of grant applications, the
extent to which grant applicants conduct outreach to people who are
members of specific groups that have traditionally been underserved and
underrepresented in research. See 86 FR 7009 (``The term `underserved
communities' refers to populations sharing a particular characteristic,
as well as geographic communities, that have been systematically denied
a full opportunity to participate in aspects of economic, social, and
civic life, as exemplified by the list in the preceding definition of
`equity.' ''). The E.O. defines ``equity'' as ``consistent and
systematic fair, just, and impartial treatment of all individuals,
including individuals who belong to underserved communities that have
been denied such treatment, such as Black, Latino, and Indigenous and
Native American persons, Asian Americans and Pacific Islanders and
other persons of color; members of religious minorities; lesbian, gay,
bisexual, transgender, and queer (LGBTQ+) persons; persons with
disabilities; persons who live in rural areas; and persons otherwise
adversely affected by persistent poverty or inequality.'' Id. Applicant
refers to organizations such as universities or other organizations
that apply for NIDILRR grants. NIDILRR's current regulation regarding
applicants' proposed ``Project Staff'' (45 CFR 1330.24(n)) combines a
significant number of underrepresented groups into one list (``. . .
based on race, color, national origin, gender, age, or disability''),
and asks reviewers to broadly evaluate the extent to which the grant
applicant encourages applications for employment from people who are
members of those groups in the list. This format does not allow
reviewers to evaluate applicants' outreach and hiring practices for
people with disabilities, or for other underserved and underrepresented
populations highlighted in the list, as distinct groups.
To better promote applicants' hiring of people with disabilities,
and people from other underserved communities--we proposed to revise 45
CFR 1330.24(n) to disaggregate these populations into two distinct peer
review subcriteria. Disaggregation of people with disabilities and
people from other underserved communities into separate subcriteria
allows peer reviewers to more directly evaluate and score the extent to
which grant applicants encourage applications for employment from
people in each of these distinct groups. ACL also proposes a conforming
amendment to 45 CFR 1330.23(b) reflecting this revision to the
selection criteria. As a result of these changes, applicants will be
required to describe their outreach practices with respect to people
with disabilities and other specific groups, separately and distinctly.
ACL intends for grant applicants to provide quantitative and/or
qualitative information regarding these disaggregated groups in the
narrative of their proposal, and for peer reviewers to accordingly use
this information to evaluate and score each individual application.
The second update to 45 CFR part 1330 is intended to better
emphasize the need for engineering research and development (R&D)
activities in NIDILRR's RERC program funding opportunities. The update
would add sub-criteria under both the ``Design of Research Activities''
(45 CFR 1330.24(c)) and ``Design of Development Activities'' (45 CFR
1330.24(d)) to allow reviewers to evaluate the extent to which
applicants are proposing engineering knowledge and methods that are
appropriate to the research questions and development aims described in
their RERC applications. The absence of such engineering-focused
criteria have led to some RERC grants that are not optimally using
engineering R&D methods as envisioned in the statutory language that
authorizes and names the RERC program. See 29 U.S.C. 764(b)(3).
IV. Analysis of Responses to Public Comments
We received fourteen public comments from six individuals, five
stakeholder associations, and three university departments. We have
reviewed all of the public comments received and considered the
concerns raised by all stakeholders. As a result, we have made
revisions to the proposed regulations at 45 CFR 1330.24. Specifically,
we have modified 45 CFR 1330.24(c), (d), and (n). See Section IV
``Provisions of the Final Regulations'' for detailed description of
these changes. A summary of the comments received and our responses to
those comments appear in the paragraphs below.
Comment: Five parties provided comments that were fully supportive
of the proposed revisions to NIDILRR's menu of peer review criteria.
Two of these parties particularly appreciated NIDILRR's continued
inclusion of people who are underrepresented in research professions
based on age.
Response: We thank these commenters for their support.
Comment: One commenter suggested that the evaluation of the extent
to which applicant organizations encourage applications from and hire
people with disabilities and people from other underrepresented
communities is ``more appropriately evaluated by the government'', than
by the peer review process. The commenter suggests that instead of
evaluating these factors as part of the peer review process, ACL and
NIDILRR should use documented histories of applicant compliance or
noncompliance with the Americans with Disabilities Act and other civil
rights laws and regulations, as a determinant of eligibility for
Federal funding.
Response: NIDILRR and other ACL and HHS grant opportunities have
strong non-discrimination requirements for applicants, and NIDILRR
grants are issued with detailed Terms and Conditions related to
compliance with government-wide non-discrimination laws and
regulations, including the Americans with Disabilities Act, and the
Rehabilitation Act. ACL and NIDILRR will maintain these important
compliance requirements and continue to evolve and implement policies
that promote accessibility as a requirement for Federal funding.
However, compliance with broad non-discrimination laws is not the same
as purposefully encouraging applications
[[Page 50002]]
for employment from people with disabilities and people from other
underrepresented and underserved communities. NIDILRR and the field of
disability research has a strong and direct interest in, and will
benefit significantly from, growth in the representation of people with
disabilities and investigators from underserved communities. This
interest is reflected in our long-standing peer review sub-criterion
about the extent to which grant applicants encourage applications for
employment from people with disabilities and people from other
underrepresented and underserved communities. By disaggregating this
sub-criterion, consistent with Executive Order 13985, we aim to
evaluate the extent to which applicant organizations are encouraging
applications for employment from people with disabilities and people
from other underrepresented and underserved communities.
Comment: One commenter noted that NIDILRR's proposed disaggregated
Project Staff subcriteria will appropriately promote consideration of
the extent to which applicant organizations recruit people with
disabilities. This commenter suggested that NIDILRR provide further
specificity in the disability sub-criterion, in a way that would
further value the recruitment of people with disabilities who have the
greatest support needs. The commenter suggested that NIDILRR provide a
scoring rubric for this disability sub-criterion, which would
potentially provide more points for applicant organizations that
demonstrate efforts to recruit and hire people with disabilities who
have the greatest support needs.
Response: NIDILRR agrees with the commenter that people with
disabilities vary in their level of disability and support needs.
NIDILRR's programs are authorized by the Rehabilitation Act of 1973, as
amended. The Rehabilitation Act consistently emphasizes that the
programs that it authorizes, including NIDILRR, must benefit people
with disabilities--especially people with the most significant
disabilities (29 U.S.C. 764(a)(1)). To reflect this foundational
emphasis in our authorizing statute, NIDILRR is modifying the proposed
sub-criterion to state that people with disabilities may include, but
are not limited to, people with disabilities who have the greatest
support needs.
While NIDILRR does not provide scoring rubrics with its scoring
criteria and subcriteria in 45 CFR 1330(n), by including this
clarification in the sub-criterion we specifically allow grant
applicants to describe, and reviewers to evaluate the extent to which
applicant organizations encourage applications from people with
disabilities who have the greatest support needs.
Comment: One commenter noted concern that grant applicant
organizations may be evaluated not just on their commitment to
increasing representation of people with disabilities or people from
other underrepresented communities in their organizations, but on the
data that they can provide as evidence of recruitment and hiring. The
commenter noted that individual researchers may not be able to
influence their organizations' recruitment and hiring practices, and
therefore may be penalized because of the practices of their
organizations.
Response: ACL, NIDILRR, and most other Federal grants are made to
organizations, and not directly to individual researchers. As such, our
criteria purposefully address the plans, actions, and resources of
applicant organizations, and not of individual investigators. The
commenter is correct that NIDILRR aims to evaluate not just the
applicant organization's commitment to recruitment of people with
disabilities or people from other underrepresented communities, but the
actions they have taken to encourage applications for employment from
people with disabilities and people from other underrepresented groups.
It is up to applicant organizations to determine how they will address
this sub-criterion, and they may provide qualitative or quantitative
data in doing so.
Comment: Three commenters noted that it will be difficult for an
applicant to provide evidence of hiring people with disabilities or
people from underrepresented communities. One of these commenters noted
that organizations' collection of this information from their employees
is typically voluntary, and therefore likely unreliable. Two of these
commenters cautioned that the revised subcriteria may place pressure on
researchers and their teams to disclose disabilities or to disclose
demographic characteristics that they wish to remain private. Two of
the commenters suggested that NIDILRR provide clarification to peer
reviewers on ways to address these subcriteria while recognizing
applicant institutions' policies that do not require disclosure of
disability or other demographic characteristics.
Response: Based upon these comments, our final rule will not
include language that focuses on applicants' hiring practices. The
final rule will, as proposed, disaggregate people with disabilities
from other underserved populations in 45 CFR 1330(n), and will continue
to focus on the extent to which applicants encourage applications for
employment from people with disabilities and other underrepresented
groups.
ACL intends for grant applicants to respond to our disaggregated
subcriteria with qualitative or quantitative information, or both, in
the narrative of their proposal. Peer reviewers will use this
information to evaluate and score each individual application. As
revised for this final rule, nothing in the proposed subcriteria
language compels applicants to provide quantitative data that would
require applicants or their potential employees to disclose disability
or other individual characteristics.
NIDILRR intentionally does not further interpret these review
criteria that come from our program regulations or provide guidance to
applicants or reviewers on the application of any of the criteria. We
rely on individual reviewers to consistently apply these and other
criteria for each of the grant applications they are reviewing. This
approach to peer review, which is commonly used and accepted within the
scientific community, allows reviewers with different perspectives and
areas of expertise to participate meaningfully in the peer review
process.
Comment: Five commenters supported the addition of proposed
engineering specifications to the research and development subcriteria.
These commenters, however, suggested that ACL and NIDILRR further
specify and define engineering as part of the subcriteria, and offered
a variety of suggestions for further definition.
Response: NIDILRR has considered this feedback, in the context of
the ``Design of Research Activities'' and ``Design of Development
Activities'' subcriteria that our proposed additions would fit within,
under 45 CFR 1330.24(c) and 45 CFR 1330.24(d). Within those
subcriteria, there are many terms that NIDILRR could define in much
greater detail, but purposefully does not. For instance, under ``Design
of Research Activities,'' there is a sub-criterion about the extent to
which the data analysis methods are appropriate. Instead of further
delineating the wide variety of data analysis methods that could be
proposed by applicants and evaluated by reviewers, we leave the
application of this broad sub-criterion to the applicants and
reviewers. The evaluation of the broad sub-criterion about the
appropriateness of data analysis methods is only possible within the
context of the grant application for which it is being evaluated. For
some applications, it is
[[Page 50003]]
appropriate for applicants to propose qualitative analysis of in-depth
interview data. For other applications, it is appropriate for
applicants to propose statistical analysis of highly quantitative
data--depending on the applicant's aims and research questions. We do
not define each of the innumerable potential data analysis methods that
applicants could propose.
The same logic and approach apply under our proposed subcriteria
related to engineering. As noted by the commenters, there are a wide
range of engineering specialties and approaches that we could further
define, including but not limited to biomedical engineering, electrical
engineering, mechanical engineering, and software development and
computer science. NIDILRR's intent, however, is for reviewers to
evaluate the extent to which RERC applicants are applying engineering
knowledge and techniques that are appropriate to address the aims and
objectives of the proposed RERC grant.
To better reflect this specific intent, NIDILRR is modifying our
two proposed subcriteria by adding ``appropriate'' prior to the word
engineering.
Comment: NIDILRR received a number of comments that were not
directly related to the proposed rule. These comments focused on topics
including NIDILRR's peer review processes and policies, the
availability of researchers with disabilities in the labor market,
funding for accommodations used by employees with disabilities, and the
importance of research on the needs, experiences, and outcomes of
people with communication disabilities.
Response: All of these are important topics, and we look forward to
engaging with NIDILRR stakeholders on these topics.
V. Provisions of the Final Regulations
In this final rule, we are adopting the provisions in the January
10 proposed rule, with the following changes:
[ssquf] Revised proposed 45 CFR 1330.24(c)(5) to add
``appropriate'' prior to the word engineering.
[ssquf] Revised proposed 45 CFR 1330.24(d)(4) to add
``appropriate'' prior to the word engineering.
[ssquf] Revised proposed 45 CFR 1330.24(n)(1) to specify that
people with disabilities may include, but are not limited to, people
with disabilities who have the greatest support needs.
[ssquf] Revised proposed 45 CFR 1330.24(n)(1) to delete ``and
hires.''
[ssquf] Revised proposed 45 CFR 1330.24(n)(2) to delete ``and
hires.''
[ssquf] Revised proposed 45 CFR 1330.24(n)(2) to add ``other.''
VI. Required Regulatory Analyses
A. Executive Orders 12866 and 13563
E.O. 12866, ``Regulatory Planning and Review,'' and E.O. 13563,
``Improving Regulation and Regulatory Review,'' direct agencies to
assess all costs and benefits of available regulatory alternatives and,
if the regulation is necessary, to select regulatory approaches that
maximize net benefits.
OMB determined that the rulemaking was not an economically
significant regulatory action under these E.O.s. The preambles to this
rule maintained that it primarily described procedural changes that
would require Department expenditures to implement.
B. Regulatory Flexibility Act
The Department has examined the economic implications of this final
rule as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
et seq. The RFA requires an agency to describe the impact of a final
rulemaking on small entities by providing an initial regulatory
flexibility analysis, unless the agency determines that the final rule
will not have a significant economic impact on a substantial number of
small entities, provides a factual basis for this determination, and
certifies the statement. 5 U.S.C. 603(a) and 605(b). The Department
considers a proposed or final rule to have a significant economic
impact on a substantial number of small entities if it has at least a
three percent impact on revenue of at least five percent of small
entities. The Department has determined, and the Secretary certifies,
that this final rule would not have a significant economic impact on
the operations of a substantial number of small entities.
C. Executive Order 13132 (Federalism)
E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999) establishes
certain requirements that an agency must meet when it promulgates a
rule that imposes substantial direct requirement costs on state and
local governments or has federalism implications. The Department has
determined that this final rule would not impose such costs or have any
federalism implications.
D. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
HHS has analyzed this final rule in accordance with the principles
set forth in E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 6, 2000). HHS has determined that
the final rule does not contain policies that would 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. In accordance with the Department's Tribal consultation policy,
the Department solicited comments from tribal officials on any
potential impact on Indian Tribes prior to promulgating this final
rule.
E. National Environmental Policy Act
HHS had determined that this final rule would not have a
significant impact on the environment.
F. Paperwork Reduction Act of 1995
In accordance with the Paperwork Reduction Act of 1995 and its
implementing regulations, 44 U.S.C. 3501-3521; 5 CFR part 1320,
appendix A.1, the Department has reviewed this final rule and has
determined that it does not establish new collections of information.
Alison Barkoff, Acting Administrator Administration for Community
Living approved this document on July 13, 2022.
List of Subjects in 45 CFR Part 1330
Disability, Grant programs, Research.
Accordingly, ACL amends 45 CFR part 1330 as follows:
PART 1330--NATIONAL INSTITUTE FOR DISABILITY, INDEPENDENT LIVING,
AND REHABILITATION RESEARCH
0
1. The authority citation for part 1330 continues to read as follows:
Authority: 29 U.S.C. 709, 3343.
0
2. Amend Sec. 1330.23 by revising paragraph (b) to read as follows:
Sec. 1330.23 Evaluation process.
* * * * *
(b) In considering selection criteria in Sec. 1330.24, the
Director selects one or more of the factors listed in the criteria, but
always considers the factors in Sec. 1330.24(n) regarding people with
disabilities, and members of groups that have traditionally been
underrepresented based on race, ethnicity, national origin, sex
(including sexual orientation and gender identity), or age.
* * * * *
0
3. Amend Sec. 1330.24 by adding paragraphs (c)(5) and (d)(4) and
revising paragraph (n) to read as follows:
[[Page 50004]]
Sec. 1330.24 Selection criteria.
* * * * *
(c) * * *
(5) The extent to which research activities use appropriate
engineering knowledge and techniques to collect, analyze, or synthesize
research data.
(d) * * *
(4) The extent to which development activities apply appropriate
engineering knowledge and techniques to achieve development objectives.
* * * * *
(n) Project staff. In determining the quality of the applicant's
project staff, the Director considers one or more of the following
factors:
(1) The extent to which the applicant encourages applications for
employment from people with disabilities, who may include but are not
limited to people with disabilities who have the greatest support
needs.
(2) The extent to which the applicant encourages applications for
employment from people who are members of other groups that have
traditionally been underrepresented in research professions based on
race, ethnicity, national origin, sex (including sexual orientation and
gender identity), or age.
(3) The extent to which the key personnel and other key staff have
appropriate training and experience in disciplines required to conduct
all proposed activities.
(4) The extent to which the commitment of staff time is adequate to
accomplish all the proposed activities of the project.
(5) The extent to which the key personnel are knowledgeable about
the methodology and literature of pertinent subject areas.
(6) The extent to which the project staff includes outstanding
scientists in the field.
(7) The extent to which key personnel have up-to-date knowledge
from research or effective practice in the subject area covered in the
priority.
* * * * *
Dated: August 9, 2022.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-17422 Filed 8-12-22; 8:45 am]
BILLING CODE 4154-01-P
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