Proposed Rule2023-27682
Education Department General Administrative Regulations and Related Regulatory Provisions
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
January 11, 2024
Issuing agencies
Education Department
Abstract
The Secretary of Education proposes to amend the Education Department General Administrative Regulations (EDGAR) and associated regulatory provisions to update the regulations and better align them with other U.S. Department of Education (Department) regulations and procedures. A brief summary of the proposed rule is available on Regulations.gov in the docket for the rulemaking.
Full Text
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[Federal Register Volume 89, Number 8 (Thursday, January 11, 2024)]
[Proposed Rules]
[Pages 1982-2031]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27682]
[[Page 1981]]
Vol. 89
Thursday,
No. 8
January 11, 2024
Part II
Department of Education
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34 CFR Parts 75, 76, 77, et al.
Education Department General Administrative Regulations and Related
Regulatory Provisions; Proposed Rule
Federal Register / Vol. 89 , No. 8 / Thursday, January 11, 2024 /
Proposed Rules
[[Page 1982]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 75, 76, 77, 79, and 299
RIN 1875-AA14
[Docket ID ED-2023-OPEPD-0110]
Education Department General Administrative Regulations and
Related Regulatory Provisions
AGENCY: Office of Planning, Evaluation and Policy Development,
Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary of Education proposes to amend the Education
Department General Administrative Regulations (EDGAR) and associated
regulatory provisions to update the regulations and better align them
with other U.S. Department of Education (Department) regulations and
procedures. A brief summary of the proposed rule is available on
<a href="http://Regulations.gov">Regulations.gov</a> in the docket for the rulemaking.
DATES: We must receive your comments on or before February 26, 2024.
ADDRESSES: Comments must be submitted electronically via the Federal
eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. However, if you require an
accommodation or cannot otherwise submit your comments via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact the program contact person listed
under FOR FURTHER INFORMATION CONTACT. The Department will not accept
comments submitted after the comment period closes. To ensure that we
do not receive duplicate copies, please submit your comments only once.
In addition, please include the Docket ID at the top of your comments.
Information on using <a href="http://Regulations.gov">Regulations.gov</a>, including instructions for
accessing agency documents, submitting comments, and viewing the
docket, is available on the site under ``FAQ.''
Note: The Department's policy is generally to make comments
received from members of the public available for public viewing in
their entirety at <a href="http://www.regulations.gov">www.regulations.gov</a>. Therefore, commenters should be
careful to include in their comments only information that they wish to
make publicly available. Commenters should not include in their
comments any information that identifies other individuals or that
permits readers to identify other individuals. The Department will not
make comments that contain personally identifiable information about
someone other than the commenter publicly available on
<a href="http://www.regulations.gov">www.regulations.gov</a> for privacy reasons. Therefore, commenters should
be careful to include in their comments only information that they wish
to make publicly available.
FOR FURTHER INFORMATION CONTACT: Kelly Terpak, U.S. Department of
Education, 400 Maryland Avenue SW, Room 4C212, Washington, DC 20202.
Telephone: (202) 245-6776. Email: <a href="/cdn-cgi/l/email-protection#8bcecfcccad9cbeeefa5ece4fd"><span class="__cf_email__" data-cfemail="a8edecefe9fae8cdcc86cfc7de">[email protected]</span></a>.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of this Regulatory Action: The last major update to EDGAR
was in 2013. Given that EDGAR serves as the foundational set of
regulations for the Department, we have reviewed EDGAR, evaluated it
for provisions that, over time, have become outdated, unnecessary, or
inconsistent with other Department regulations, and identified ways in
which EDGAR could be updated, streamlined, and otherwise improved.
Specifically, we propose to amend parts 75, 76, 77, 79, and 299 of
title 34 of the Code of Federal Regulations. These changes are detailed
in the Summary of Major Provisions of this Regulatory Action and the
Significant Proposed Regulations section of this document.
Summary of Major Provisions of this Regulatory Action: As discussed
in greater detail in the Significant Proposed Regulations section of
this document, the proposed regulations would:
<bullet> Make technical updates to refer to up-to-date statutory
authorities, remove outdated terminology, use consistent references,
and eliminate obsolete cross-references.
<bullet> Align EDGAR with updates in the most recent
reauthorization of the Elementary and Secondary Education Act of 1965
(ESEA). For example, updates to EDGAR would revise the tiers of
evidence to incorporate and parallel those in the ESEA and would
specify the procedures used to give special consideration to an
application supported by evidence in Sec. 75.226.
<bullet> Clarify, streamline, and expand the selection criteria the
Secretary may use to make discretionary awards under Sec. 75.210.
<bullet> Clarify procedural approaches, such as those related to
making continuation awards under Sec. 75.253, and exceptions to the
typical process for new awards under Sec. 75.219, such as if a grant
application had been mishandled.
<bullet> Improve public access to research and evaluation related
to Department-funded projects by requiring, under Sec. Sec. 75.590 and
75.623, that each grantee that prepares an evaluation or a peer-
reviewed scholarly publication as part of the grant award or on the
basis of grant-funded research make the final evaluation report or
peer-reviewed scholarly publication available through the Education
Resource Information Center (ERIC), which is current practice of the
Department's Institute of Education Sciences (IES).
<bullet> Expand and clarify flexibility for the Department in
administering its grants programs, including by--
[cir] Providing the Department the option to require applicants
under grant programs to include a logic model supporting their proposed
project under Sec. 75.112;
[cir] Replacing the definition in Sec. 75.225 of ``novice
applicant'' with a broader definition of ``new potential grantee,'' to
allow additional flexibility to give special consideration to such
grantees and increase equity in the applicant pool and recipients of
Department funds;
[cir] Allowing the Department to require a grantee to conduct an
independent evaluation of their project and make the results of such an
evaluation public under Sec. 75.590;
[cir] Defining ``independent evaluation'' under Sec. 77.1(c);
[cir] Clarifying under Sec. 76.50 that, where not prohibited by
law, regulation, or the terms and conditions of the grant award, States
have subgranting authority;
[cir] Allowing States flexibility under Sec. 76.140 to adopt a
process for amending a State plan that is distinct from the process
used for initial approval; and
[cir] Clarifying the hearing and appeal process under Sec. 76.401
for subgrants of State-administered formula grant programs, including
by clarifying that aggrieved applicants must allege that a specific
Federal or State statute or regulation has been violated.
<bullet> Consolidating and clarifying regulations about
participation of private school children, teachers, and other
educational personnel in part 299.
Costs and Benefits: The Department believes that the benefits of
this regulatory action would outweigh any associated costs to States,
local educational agencies (LEAs), and other Department applicants and
grantees. The proposed regulations would, in part, update terminology
to align with applicable statutes and regulations. Many of the
adjustments would support the Department, its grantees, or both, in
selecting high-quality grantees and to support those grantees in
ensuring the effectiveness and continuous
[[Page 1983]]
improvement of their projects. These changes include, for example,
adding potential selection criteria that apply only to programs that
elect to use them, as announced in a notice inviting applications
(NIA), and clarifying the language in selection criteria for applicants
and peer reviewers. Please refer to the Regulatory Impact Analysis
section of this document for a more detailed discussion of costs and
benefits. Consistent with Executive Order 12866, as amended most
recently by Executive Order 14094, the Secretary has determined that
this action is significant and, thus, is subject to review by the
Office of Management and Budget.
Incorporation by Reference: Proposed Sec. 75.616 incorporates by
reference the American Society of Heating, Refrigerating, and Air
Conditioning Engineers (ASHRAE) Standard 90.1. ASHRAE is included in
the construction section focused on energy conservation and has been
included in EDGAR for over 30 years. The ASHRAE standards are the
industry leading standards and are relevant to the construction
regulations in this section of EDGAR because grantees need to know the
current standard with which they must comply. Standard 90.1 has been a
benchmark for commercial building energy codes in the United States,
and a key basis for codes and standards around the world, for almost
half a century. This standard provides the minimum requirements for
energy-efficient design of most sites and buildings, except low-rise
residential buildings. It offers, in detail, the minimum energy
efficiency requirements for design and construction of new sites and
buildings and their systems, new portions of buildings and their
systems, and new systems and equipment in existing buildings, as well
as criteria for determining compliance with these requirements. It is
an indispensable reference for engineers and other professionals
involved in design of buildings, sites, and building systems. This
standard is available to the public at <a href="http://www.ashrae.org/technical-resources/bookstore/standard-90-1">www.ashrae.org/technical-resources/bookstore/standard-90-1</a>.
Proposed Sec. 77.1 incorporates by reference the What Works
Clearinghouse (WWC) Procedures and Standards Handbook, Version 5.0. The
purpose of the What Works Clearinghouse is to review and summarize the
quality of existing research in educational programs, products,
practices, and policies. We incorporate the Handbook, which provides a
detailed description of the standards and procedures of the WWC, by
reference. The Handbook is available to interested parties at <a href="https://ies.ed.gov/ncee/wwc/Handbooks">https://ies.ed.gov/ncee/wwc/Handbooks</a>. The Version 5.0 Handbook includes a new
Chapter I, Overview of the What Works Clearinghouse and Its Procedures
and Standards and aligns the flow of content with the study review
process. Additionally, it no longer allows for topic-specific
customization of the standards, aligns its effectiveness ratings with
the evidence definitions in Sec. 77.1(c), and describes other
protocols for specific study designs. More details are available at
<a href="https://ies.ed.gov/ncee/WWC/Docs/referenceresources/Final_HandbookSummary-v5-0-508.pdf">https://ies.ed.gov/ncee/WWC/Docs/referenceresources/Final_HandbookSummary-v5-0-508.pdf</a>.
The WWC is an initiative of the Department's National Center for
Education Evaluation and Regional Assistance, within IES, which was
established under the Education Sciences Reform Act of 2002 (Title I of
Pub. L. 107-279). The WWC is an important part of the Department's
strategy to use rigorous and relevant research, evaluation, and
statistics to inform decisions in the field of education. The WWC
provides critical assessments of scientific evidence on the
effectiveness of education programs, policies, products, and practices
(referred to as ``interventions'') and a range of publications and
tools summarizing this evidence. The WWC meets the need for credible,
succinct information by reviewing research studies, assessing the
quality of the research, summarizing the evidence of the effectiveness
of interventions on student outcomes and other outcomes related to
education, and disseminating its findings broadly.
This handbook is available to the public at <a href="https://ies.ed.gov/ncee/wwc/handbooks#procedures">https://ies.ed.gov/ncee/wwc/handbooks#procedures</a>.
Invitation to Comment: We invite you to submit comments regarding
these proposed regulations.
The following standards appear in the amendatory text of the
document and have already been approved for the locations in which they
appear: What Works Clearinghouse Standards Handbook, Versions 4.0 and
4.1; What Works Clearinghouse Procedures Handbook, Versions 4.0 and
4.1; and the What Works Clearinghouse Procedures and Standards
Handbook, Versions 2.1 and 3.0.
To ensure that your comments have maximum effect in developing the
final regulations, we urge you to clearly identify the specific section
or sections of the proposed regulations that each of your comments
addresses, and to provide relevant information and data whenever
possible, even if there is no specific solicitation of data and other
supporting materials in the request for comment. We also urge you to
arrange your comments in the same order as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Orders 12866, 13563, and 14094 and their
overall goal of reducing the regulatory burden that might result from
the proposed regulations. Please let us know of any further ways that
we may reduce potential costs or increase potential benefits, while
preserving the effective and efficient administration of the
Department's programs and activities. We also welcome comments on any
alternative approaches to the subjects addressed by the proposed
regulations.
During and after the comment period, you may inspect all public
comments about the proposed regulations by accessing <a href="http://Regulations.gov">Regulations.gov</a>.
You may also inspect the comments in person. Please contact the person
listed under FOR FURTHER INFORMATION CONTACT to make arrangements to
inspect the comments in person.
Directed Questions: One of the Department's goals in these proposed
regulations, in addition to helping strengthen and streamline
implementation and monitoring of Department grants, is to better
support continuous improvement--encouraging grantees to use research,
data, community and other engagement, and other feedback to
periodically review and improve their project plans to best advance
their programmatic objectives. We particularly welcome comments on how
these proposed regulations could best advance this goal of continuous
improvement.
We also specifically seek input on the proposed changes to Sec.
75.210, which outlines the Department's general selection criteria. We
carefully examined usage of these selection criteria over the years to
inform the proposed changes. We also looked at how the selection
criteria align with the components of a logic model, to allow peer
reviewers to assess the logic model more directly, including how the
pieces of the proposed project align with the intended outcomes. We
seek public input on whether the proposed changes to Sec. 75.210 would
add clarity for applicants and peer reviewers and help ensure that the
Department funds the highest-quality grant applications that are most
likely to lead to successful projects.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation
[[Page 1984]]
or auxiliary aid to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for the proposed regulations. To schedule an
appointment for this type of accommodation or auxiliary aid, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Background
In this notice of proposed rulemaking (NPRM), we propose various
updates to EDGAR and related regulatory provisions. The proposed
changes range from technical updates (such as removing references to
the Trust Territory of the Pacific Islands, which no longer exists) to
streamlining regulations (such as consolidating those concerning State
plans under State-administered formula grant programs) to adding new
options for grant competition requirements (such as providing the
Department the option to require a logic model in any competitive grant
program or to require a grantee to conduct an independent evaluation).
Except for minor or technical revisions, such as updates to citations,
cross-references, references to outdated programs, links, or general
terminology, the proposed changes and reasons for them are explained in
detail in the Significant Proposed Regulations section of this NPRM.
The applicable authority for this regulatory package is section 410 of
the General Education Provisions Act (GEPA) and section 414 of the
Department of Education Organization Act (20 U.S.C. 1221e-3 and 3474,
respectively), unless otherwise noted.
Significant Proposed Regulations
34 CFR Part 75--Direct Grant Programs
Sections 75.1 and 75.200 Programs to Which Part 75 Applies and How
Applications for New Grants and Cooperative Agreements Are Selected for
Funding; Standards for Use of Cooperative Agreements
Current Regulation: Section 75.1 establishes that part 75 applies
to direct grant programs of the Department. Section 75.200 further
defines ``direct grant programs'' as either discretionary grant or
formula grant programs.
Proposed Regulation: Proposed Sec. 75.1 would combine Sec. 75.1,
and the note that follows that section, with Sec. 75.200(a), (b)(1),
and (c). Proposed Sec. 75.1(c)(3) would specify what regulations in
part 75 apply to direct grant programs, which the proposed regulation
clarifies are either a discretionary grant program or a formula grant
program other than a State-administered formula grant program covered
by part 76. We also propose in Sec. 75.1 to change ``authorizing
statute'' to ``applicable statutes and regulations.'' We also propose
deleting current Sec. 75.200(b)(3)(ii).
Reasons: We propose these changes to consolidate all information
relevant to which programs are covered by part 75 into one regulatory
provision. The changes are not substantive. We propose to change
``authorizing statute'' because we think the term is too narrow, as it
does not include other applicable statutes, such as annual
appropriations laws, that may override, modify, or supplement the
``authorizing statute'' without amending them. Although not reiterated
throughout this preamble, we propose to make this conforming change in
each applicable instance throughout the proposed regulations. Likewise,
we propose to make this change in relevant instances where the term
``program statute'' is used. We propose deleting current Sec.
75.200(b)(3)(ii) to remove redundancy with Sec. 75.200(b)(3)(i).
Section 75.4 Department Contracts
Current Regulation: Section 75.4 describes what regulations apply
to Federal contracts and in what circumstances part 75 applies to a
contract of the Department.
Proposed Regulation: We propose to remove and reserve Sec. 75.4.
Reasons: Section 75.4 discusses contractual arrangements of the
Department and when part 75 may apply to a Department contract.
However, part 75 concerns the administration of the Department's direct
grant programs, not contracts entered into by the Department.
Additionally, Sec. 75.4 describes requirements found in Chapters 1 and
34 of title 48 of the Code of Federal Regulations. These requirements
apply to Department procurements, not Department grant programs or
procurements undertaken by Department grantees. Therefore, to promote
clarity and accessibility of the Department's regulations, we propose
to remove Sec. 75.4 as unnecessary and redundant given the focus on
direct grants in part 75. This provision concerns the regulations that
govern Federal agency contracting, not grantee contracting. We do not
propose to remove any provision relevant to a grantee's contracting,
and removing Sec. 75.4 would not modify any provision related to
contractual arrangements of the Department.
Section 75.60 Individuals Ineligible To Receive Assistance
Current Regulation: Section 75.60 prohibits certain individuals
from receiving a fellowship, scholarship, or loan from the Department
if they are in default, as that term is used in 34 CFR part 668. The
current section lists specific Department programs that are fellowship,
scholarship, or loan programs.
Proposed Regulation: The proposed revisions to Sec. 75.60 would
delete the outdated list of programs and instead define Department
programs that provide a fellowship, scholarship, or loan as being a
program that offers a fellowship, scholarship, or loan ``administered
by the Department.''
Reasons: Current Sec. 75.60 lists numerous programs that no longer
exist. Rather than update the list with specific references to programs
that may become outdated later, we believe that reliance on a
description of those programs ensures that, over the long term, the
text does not become outdated. The change is not intended to be
substantive.
Section 75.101 Information in the Application Notice That Helps an
Applicant Apply
Current Regulation: Section 75.101 describes what information the
Secretary may include in an application notice, including information
about the program and the application forms. Current Sec. 75.101(a)(1)
includes a description of what information an application package
contains.
Proposed Regulation: We propose to revise Sec. 75.101(a)(1) to
refer more generally to the application package.
Reasons: The information described in current Sec. 75.101(a)(1)(i)
and (ii) is now included in the application notice itself and not in
the application package. Therefore, we believe that removing Sec.
75.101(a)(1)(i) and (ii) would improve the clarity of the regulations.
Sections 75.102 and 75.104 Deadline Date for Applications and
Applicants Must Meet Procedural Rules
Current Regulation: Section 75.102(b) provides that, if an
applicant wants a new grant, the applicant must submit an application
in accordance with the requirements in the application notice.
Proposed Regulation: We propose to move paragraph (b) of Sec.
75.102 to Sec. 75.104, where it would be added as a new paragraph (c).
We also propose to revise the heading of Sec. 75.104 to better reflect
the topics covered by the regulation.
Reasons: Moving this paragraph, which concerns the requirements in
application notices, from Sec. 75.102 to Sec. 75.104, would improve
the clarity of the regulations because Sec. 75.102 pertains to
deadlines for submitting applications and Sec. 75.104 concerns
[[Page 1985]]
applicants' compliance with additional application provisions.
Section 75.105 Annual Priorities
Current Regulation: Section 75.105 describes the process by which
the Secretary may use annual absolute and competitive preference
priorities. Current Sec. 75.105(b)(2) describes the exceptions to
publishing the annual priorities for public comment. Paragraph
(b)(2)(i) describes the Department's use of invitational priorities and
paragraph (b)(2)(iii) refers to the exceptions to the requirement for
notice-and-comment rulemaking in section 553 of the Administrative
Procedure Act (APA) (5 U.S.C. 553).
Proposed Regulation: The proposed revisions would update the term
``annual priorities'' in the section title to ``annual absolute,
competitive preference, and invitational priorities,'' and add existing
exceptions to the public comment requirement in a new paragraph
(b)(2)(vi). These include the exception authorized by section 437(d)(1)
of GEPA (20 U.S.C. 1232(d)(1)) for the first grant competition under a
new or substantially revised program authority, as well as rulemaking
exceptions under specific statutes.
We also propose updates to paragraphs (b)(2)(i), (iii), and
(b)(2)(iv) to properly describe the exceptions to the Department's
normal practice of publishing proposed priorities for notice and
comment.
Reasons: The Department has statutory authority to use and has used
the GEPA exception for many years, and adding this exception would
clarify that the regulation supplements the statutory exemption in GEPA
section 437(d)(1). The exception to notice and comment rulemaking for
the first grant competition under a new or substantially revised
program authority is established by GEPA section 437(d)(1); therefore,
this change is not substantive. In addition, we propose to add
references to section 681(d) of the Individuals with Disabilities
Education Act (20 U.S.C. 1481(d)), and section 191 of the Education
Sciences Reform Act (20 U.S.C. 9581), both of which provide
longstanding exemptions to the generally applicable requirement for the
Department to conduct notice and comment rulemaking with respect to its
discretionary grants.
Section 75.109 Changes to Application; Number of Copies
Current Regulation: Section 75.109(a) requires each applicant that
submits a paper copy of an application to submit an original and two
copies to the Department.
Proposed Regulation: We propose to remove paragraph (a) of this
section and revise the section heading accordingly.
Reasons: We propose to remove this paragraph because it is no
longer needed. The majority of applications are now submitted
electronically.
Section 75.110 Information Regarding Performance Measurement
Current Regulation: Section 75.110 sets out information regarding
the Secretary's authority to establish performance measurement
requirements in an application notice.
Proposed Regulation: The proposed revisions would clearly
differentiate between program performance measures and project-specific
performance measures as well as establish requirements, to which
grantees must agree, related to the quality of data and use of
performance measures for continuous improvement.
Reasons: As a general matter, the Department's programs have
program-level performance measures against which all grantees must
report. Further, some programs also encourage or require grantees to
establish project-specific performance measures. Both sets of measures
are important sources of information about program and grantee
performance. The current regulations do not clearly differentiate
between these two types of performance measures, and these proposed
revisions would make that differentiation. Additionally, it is
important to ensure that applicants propose to collect and report
quality data and that grantees use their performance measures to inform
continuous improvement of their projects. Therefore, we propose to
require assurances for quality data as part of the applications, and
that the data will be used to inform the continuous improvement plan
for the project.
Section 75.112 Include a Proposed Project Period and a Timeline
Current Regulation: Section 75.112 requires that applications
include project periods and timelines of how the applicants plan to
meet each project objective.
Proposed Regulation: We propose to revise Sec. 75.112 to allow the
Secretary to include a requirement for a logic model in a particular
competition, in addition to requiring a project period and a timeline.
Reasons: This change would support the development of high-quality
applications, given that logic models describe the need for a project,
its inputs and outputs, and the intended outcomes. Logic models are
helpful tools for applicants to use when establishing timelines and
resource needs. They also are helpful to the Department and reviewers
in understanding the applicant's rationale for how its proposed project
will achieve the project outcomes. Accordingly, adding the flexibility
for programs to establish a requirement for logic models would support
project planning as well as project implementation if the project is
selected for funding.
Section 75.127 Eligible Parties May Apply as a Group
Current Regulation: Section 75.127(b) lists some of the terms used
to identify a group of eligible parties that may apply as a group for a
grant. The list includes: (1) a combination of institutions of higher
education; (2) a consortium; (3) joint applicants; and (4) cooperative
arrangements.
Proposed Regulation: We propose revising Sec. 75.127(b) to include
the term ``partnerships.'' We also propose adding a paragraph (c)
stating that, in the case of a group application submitted in
accordance with Sec. Sec. 75.127-75.129, all parties in the group must
be eligible applicants under the competition. This change would not
alter the ability of applicants to form partnerships with entities that
are not eligible to be recipients under a program.
Reasons: We propose this change solely for clarity. In the case of
an application submitted by a group of eligible applicants, a
partnership is similar to a consortium, but in some programs the former
term is used instead of the latter. Also, in the context of these
regulations, the term ``eligible applicant'' is synonymous with
``eligible party,'' although Sec. 75.127(a) and (b) refer to both as
``eligible parties.''
Sections 75.190-192 Development of Curricula or Instructional Materials
Current Regulation: Sections 75.190, 75.191, and 75.192 describe
assurances and define reasonable consultation costs when grantees
develop curricula or instructional materials.
Proposed Regulation: We propose to remove Sec. Sec. 75.190-75.192.
Reasons: These regulations duplicate other assurances and
regulations, including the cost principles in 2 CFR part 200, subpart
E, that allow consultation costs that are reasonable and necessary. In
addition, we think the open licensing requirements in 2 CFR 3474.20 for
Department competitive grants awarded in competitions announced after
February 21, 2017, promote dissemination of materials developed with
Department grant funds.
[[Page 1986]]
We propose removing them to avoid unnecessary duplication, which we
believe may be confusing to grantees if we duplicate certain assurances
and regulations but not others.
Section 75.201 How the Selection Criteria Will Be Used
Current Regulation: Section 75.201(b) provides that, if points are
assigned to the selection criteria, the Secretary informs applicants in
the application package or a notice published in the Federal Register.
Paragraph (c) provides that, if no points or weights are assigned to
the selection criteria and selected factors, the Secretary evaluates
each criterion equally and, within each criterion, each factor equally.
Proposed Regulation: In Sec. 75.201(b), we propose adding the
words ``or factors'' after the words ``selection criteria.'' In
paragraph (c), we propose replacing the word ``and'' between the words
``selection criteria'' and ``selected factors'' with the word ``or.''
Reasons: The proposed revision to paragraph (b) would clarify that
the Secretary may assign specific points, either to selection criteria
or to the individual factors that make up an individual selection
criterion, where appropriate to guide applicants and reviewers in more
effectively preparing and reviewing applications. The revision to
paragraph (c) would clarify the meaning of the provision and more
accurately inform applicants and reviewers of how points are allocated
among selection criteria and the individual factors making up each
selection criterion when points are not assigned to the criteria or the
selection factors.
Section 75.210 General Selection Criteria
Current Regulation: Section 75.210 lists the selection criteria and
factors that the Department uses in the peer review process to score
applications for discretionary grants.
Proposed Regulation: We propose changes to paragraphs (a) through
(i) of Sec. 75.210. Throughout this section, we also propose to remove
parenthetical cross-references to definitions in Sec. 77.1(c), to
improve the consistency of how we refer to those definitions throughout
our regulations. This global technical change would not affect the
applicability of those definitions.
Specifically, the proposed regulations would make the following
updates:
In paragraph (a), Need for project, as further described below, we
propose clarifying in the criterion heading that it is need for ``the''
project. Regarding paragraph (a), Need for project, and paragraph (b),
Significance, we propose a number of changes to provide greater clarity
to applicants regarding the information they should provide in their
applications to demonstrate the need or significance of the proposed
project, including how the proposed project focuses on underserved
populations, with the intent that the clarity for applicants will also
provide better guidance for peer reviewers as they assess the extent to
which applicants address these revised selection criteria factors. We
also propose consolidation of factors where factors were similar in
focus to streamline the menu of factors under the criterion.
In paragraph (c), Quality of the project design, we propose
revisions to the factors that more explicitly reference and connect to
a logic model, emphasizing the importance of considering the components
of a logic model in relation to the design of the proposed project. We
are also proposing to add three new factors regarding how the proposed
project is informed by similar projects implemented by the applicant,
the extent to which an applicant will allocate a significant portion of
requested funding to the evidence-based components, and the commitment
of key decision-makers at implementation sites for the proposed
project.
In paragraph (d), Quality of project services, we propose
clarifying in the criterion heading that it is the quality of ``the''
project services. We also propose to explicitly tie this factor to
section 427 of GEPA (20 U.S.C. 1228(a)), and the related form Equity
For Students, Teachers, And Other Program Beneficiaries (OMB Control
No. 1894-0005), to connect an applicant's response to this form with
the peer review of the application. Like Quality of the project design,
proposed changes to Quality of project services reflect input from
entities involved in the project, more direct connection to and
engagement with the populations served by the proposed project, and the
impacts of the services on those populations. We also propose a new
factor related to early childhood and family outcomes, given the
importance of serving young children and families effectively.
In paragraph (e), Quality of project personnel, we propose
clarifying in the criterion heading that it is quality of ``the''
project personnel. We also propose revisions that would address how the
personnel of the proposed project are representative of the population
to be served by the project, including a new factor that would speak to
the project team reflecting the demographics of the community to be
served. Revisions also would address the relevance of experience of the
project personnel with similar projects. Lastly, we propose a new
factor that seeks to ensure that the project team is familiar with the
assets, needs, and other contextual considerations of the proposed
implementation sites.
In paragraph (f), Adequacy of resources, we propose revisions that
would combine the adequacy of the resources and how those resources
will support the proposed project. We also propose revisions that
clarify commitments from partners, long-term sustainability and
institutionalization of the project, and a new proposed factor on the
reasonableness of the costs related to potential future adoption of the
project.
In paragraph (g), Quality of the management plan, we propose
revisions that focus on the feasibility of the project, how data will
be used to inform continuous improvement, and how the management plan
includes the perspectives of underserved populations for the proposed
project.
In paragraph (h), Quality of the project evaluation, we propose
revising the criterion heading to ``Quality of the project evaluation
and evidence-building.'' In addition to the changes regarding the term
``evidence-building,'' which we propose to define in Sec. 77.1(c), we
propose revisions that would focus on the relevance of the evaluation,
a focus of the evaluation on underserved populations, continuous
improvement efforts and data to inform continuous improvement, revising
the current factor on ``promising evidence'' so that it refers to the
types of studies instead, differentiation of impacts for project
components, and the experiences and independence of the evaluator.
Lastly, we propose new factors focused on fidelity of implementation
and dissemination of evidence-building learnings from the project.
In paragraph (i), Strategy to scale, we propose revisions that
would clarify how the scaling work is informed by, and builds on, the
project, seeks to serve underserved populations, and addresses previous
barriers to impact. The revisions would allow for scaling at either the
regional level or the national level and could include dissemination as
well as adaptation and replication. We also propose new factors that
look at how scaling efforts will target new populations or settings,
the efficiencies in the project that will be incorporated into the
scaling efforts, and the revenue stream to support scaling.
Reasons: The proposed revisions would provide clarity, ensure
technical
[[Page 1987]]
and grammatical consistency, and make certain substantive changes,
further described below. The menu of selection criteria and factors has
expanded over the years through the various updates to EDGAR, and we
closely reviewed it to determine what changes are needed. We also
looked at how the existing factors were used in the various Department
discretionary grant competitions to inform which factors are used
frequently and which factors have rarely or never been used. For those
rarely or never used, we examined whether there were other similar
factors that might be used in their place, or if the language of the
factor might be confusing. In some instances, we propose consolidating
factors for these reasons, and, in some instances, we propose deleting
the factors because they have rarely or never been used. We also sought
to examine how the selection criteria can advance the Department's
objectives of increasing diversity of applicants, ensuring equity in
project services, and advancing usage of evidence. Clarity in the
selection factors aids grant applicants' understanding and the
Department's peer review and selection of grantees. The proposed
changes to the selection criteria and factors under each criterion are
based on lessons we have learned from using the existing selection
criteria, ways to streamline the factors, and improvements to clarity.
The proposed revisions seek to broaden the applicability of the
factors, focus on data to inform project design and continuous
improvement, demonstrate how the project and its personnel reflect the
population to be served, and indicate how lessons learned from the
project are incorporated into the project and plans for continued
implementation and improvement after the grant period.
In paragraph (a), Need for project, we propose to revise the
factors to further distinguish need, including allowing the Department
to request comparison data that help an applicant demonstrate their
need for the project and having applicants identify gaps that the
proposed project will fill. Furthermore, we propose to focus these
factors to further target grant funds to individuals and populations
that are underserved and lack access to services.
Like the factors under Need for project, the proposed revisions
under paragraph (b), Significance, are meant to allow applicants to
quantify the significance of the project, including significance beyond
the individual grant project and relevance to broader educational
challenges. The proposed changes are meant to provide information on
contributions to the field, capacity for the project to be adopted by
others in the field, and a new proposed factor (xvii) that would focus
on innovative approaches to existing evidence-based project components
that support efforts under some Department programs to invest and then
scale innovative projects. Additional revised factors would require
using knowledge from project implementation to identify effective
strategies to address educational challenges, as we think it is
important for applicants to plan for not just implementing a project
but developing ways to share knowledge from the implementation beyond
the grant project. Recognizing that the Department is not the only
agency or organization that funds and supports educational efforts, we
think it is important for applicants to prepare for sharing their
contributions to the field, and that the field is broader than just the
Department. In addition, proposed factor (iv) would more explicitly
reference rehabilitative services, which would be important for grant
programs under the Rehabilitation Services Administration of the
Department's Office of Special Education and Rehabilitative Services.
In paragraph (c), Quality of the project design, we intend to
emphasize the importance of ensuring that the project design reflects
engagement of the community to be served and other relevant entities,
includes a focus on continuous improvement, and relies on relevant
high-quality research that informs the proposed project. These
revisions are intended to strengthen a proposed project design. We also
propose to add new factors: how the proposed project is informed by
similar projects implemented by the applicant, the extent to which an
applicant will allocate a significant portion of requested funding to
the evidence-based project components, the commitment of key decision
makers at implementation sites for the proposed project, and the
engagement of community members and partners in the design of the
proposed project. The intent of these additions is to focus on project
designs that consider previous implementations, the evidence base, and
the needs of the community by engaging them. Additional revisions
propose the development and use of a logic model because we think that
logic models establish project designs that connect the intended
outcomes with the inputs and activities to support those outcomes.
Current factors reference only a conceptual framework or the
``demonstrates a rationale'' or ``promising evidence'' evidence levels
but do not specifically discuss a logic model, which is defined in part
77. Lastly, we propose a factor about commitments at implementation
sites to address issues we have seen in grant projects for which
implementation sites were named in an application, but their support
was unclear and affected implementation during the project period.
In paragraph (d), Quality of project services, we propose to
explicitly tie this factor to section 427 of GEPA (20 U.S.C. 1228(a)),
and the related form Equity For Students, Teachers, And Other Program
Beneficiaries (OMB Control No. 1894-0005), for equitable access to, and
participation in, the proposed project. The intent of this alignment is
to connect an applicant's responses related to equity considerations on
that form to the project services proposed under the project and aligns
with the form's instructions, which include a broad list of potential
barriers that may impede equitable access and participation. We propose
these revisions under Quality of the project service and not under
Quality of project personnel, as we think the responses on the form are
more relevant to the project services and the activities being carried
out under the grant. Other proposed revisions to factors under Quality
of project services would align with proposed changes to other
selection criteria, focusing on community engagement in project
services, ensuring that project services are focused on underserved
populations, and the relevance of the services and the data being
collected and used to inform the project services. We propose a new
factor focused on the outcomes of early childhood and families to align
with Department programs that focus on these populations, because these
populations are currently not included in this criterion.
In paragraph (e), Quality of project personnel, we propose
revisions to parallel those under Quality of project services that
would align the listed examples of groups that have experienced
barriers between the two criteria. We also propose factors that align
the qualifications of the personnel with similar projects, factors that
focus project personnel on being representative of the target
population for project services, and a factor to have personnel who are
familiar with the needs of the implementation sites for the proposed
project. The proposed revisions and new factors are intended to help
ensure that personnel are positioned to meet the needs of the
underserved populations to be served and more closely reflect those
[[Page 1988]]
populations, including a focus on the training and experiences of the
personnel that align with the work to be carried out under the proposed
project.
Regarding paragraph (f) Adequacy of resources, the proposed changes
are intended to clarify the connection between the budget for the
proposed project and how those costs are reasonable and significant,
including a new factor that looks at the reasonableness of others being
able to adopt and implement the project, because we are interested in
the anticipated costs of broader implementation. We also propose
revisions to the factor that requires applicants to address matching
funds and partner commitments, which is significant given the number of
program statutes that have matching requirements.
In paragraph (g), Quality of the management plan, we propose
revisions to the existing factors to focus on the applicant's plan to
meet goals and objectives, timelines, and budgets. Separately, we
propose a revised factor to involve the use of community and partner
input in the management plan, to inform continuous improvement efforts
related to project implementation. Lastly, the proposed revisions to
criterion (v) are meant to ensure meaningful engagement from the
underserved populations to be served by the project to ensure the
management plan reflects their needs.
In paragraph (h), Quality of the project evaluation, the proposed
changes are intended to recognize that rigorous evaluation is not
feasible for all projects; however, there are efforts relating to
project goals, objectives, and performance measurement that can be used
to improve the project, reach intended outcomes, and focus on evidence-
building, which would be supported by the proposed definition in Sec.
77.1(c). We also propose revising the current factor on ``promising
evidence'' so that it refers to the types of studies instead, which we
think provides greater clarity on what evaluation designs are necessary
to meet the requirements of the factor.
In paragraph (i), Strategy to scale, the proposed changes focus on
underserved populations. We propose two factors that would establish
the level of the efforts to scale, having a separate factor for scaling
to the regional level because not all projects can scale to the
national level. A proposed new factor focuses scaling on new
populations or settings, which is meant to get at the broader potential
scaling of the proposed project. Multiple factors are meant to focus on
how an applicant will address issues to scaling, including identifying
and proposing strategies to address barriers to scaling, adaptions and
replications to allow for scaling, and the addition of two new factors
focused on the financial aspects of scaling, including efficiencies in
scaling and revenue sources. All these revisions are meant to encourage
applicants to more thoughtfully consider all of the aspects related to
successful scaling of a project, to ensure ongoing support and growth
for a project after Federal funding ends.
Section 75.216 Applications Not Evaluated for Funding
Current Regulation: Section 75.216 provides that the Secretary does
not evaluate an application if: (a) The applicant is not eligible; (b)
the applicant does not comply with all procedural rules that govern the
submission of the application; (c) the application does not contain the
information required under the program; or (d) the proposed project
cannot be funded under the applicable statute and regulation or
implementing regulations for the program.
Proposed Regulation: We propose to revise Sec. 75.216 by removing
paragraphs (a) and (d) and revising the section heading to read:
Applications that the Secretary may choose not to evaluate for funding.
Reasons: We propose to revise this provision because the Department
is bound by law to follow applicable statutes and regulations, and this
change to Sec. 75.216 would not change the rules that govern the
eligible entities and types of projects that can be funded under a
particular grant competition. To meet the deadlines for timely review
of applications, the Department will often forward applications for
evaluation to peer reviewers before making final determinations on
compliance with all the requirements in Sec. 75.216, which are often
complex and time consuming. The proposed changes to Sec. 75.216 align
with current Department practice, allow the peer review process to
proceed in a timely fashion, and allow final eligibility determinations
to be made prior to an award being made to an applicant. For this
reason, paragraphs (a) and (d) are unnecessary. In addition, the
revisions to the title would clarify the Department's determinations
not to evaluate an application for the reasons set forth in this
regulation and codifies Department practice.
Section 75.217 How the Secretary Selects Applications for New Grants
Current Regulation: Paragraph (c) of Sec. 75.217 provides that the
Secretary prepares a rank order of the applications based solely on the
evaluation of their quality according to the selection criteria.
Proposed Regulation: We propose to revise paragraph (c) of Sec.
75.217 to clarify that we may prepare multiple rank orders where we
have a menu of absolute priorities that applicants must meet, as well
as clarify that the rank order will also reflect any competitive
preference points.
Reasons: The proposed change would provide a full description of
the information relied on by the Secretary in preparing a rank order of
applications under Sec. 75.217 and codifies our current practice in
Sec. 75.217.
Section 75.219 Exceptions to the Procedures Under Sec. 75.217
Current Regulation: Section 75.219(b) excepts an application from
the procedures described under Sec. 75.217 if the application was
rated highly enough to be funded but was not funded because it was
mishandled.
Proposed Regulation: We propose to revise Sec. 75.219(b)(2) and
(3) to provide for situations in which an application was not selected
for funding because the application was mishandled or improperly
processed by the Department and an application has been rated highly
enough to qualify for selection under Sec. 75.217.
Reasons: We propose this change to improve the clarity of this
provision. There have been instances in which the mishandling or
improper processing of applications by the Department resulted in
either an applicant not being rated or having its rating not properly
recorded due to a clerical or other error. As a result, we propose
changes to clarify that Sec. 75.219(b) applies if, in the absence of
the mishandling or improper processing, an application either had been
rated highly enough to be funded or would have been rated highly enough
to be funded had it been reviewed. When the Department discovers an
application that was not reviewed due to mishandling or improper
processing, it has the application reviewed and, if the score is high
enough, makes an award using funds that are available when the review
is conducted. This proposed change clarifies the scope of this
provision and the procedures the Department follows in practice.
Section 75.220 Procedures the Department Uses Under Sec. 75.219(a)
Current Regulation: Section 75.220(b)(2) references an employee of
the Office of the Chief Financial Officer (OCFO) with responsibility
for grants policy to serve on a board to review an application under
the special
[[Page 1989]]
circumstances of Sec. 75.219(a) (The objectives of the project cannot
be achieved unless the Secretary makes the grant before the date grants
can be made under the procedures in Sec. 75.217.)
Proposed Regulation: We propose revising paragraph (b)(2) to refer
instead to the Office of Finance and Operations (OFO).
Reasons: In the reorganization at the Department that went into
effect in January 2019, the OCFO functions were incorporated into the
new OFO, and this section would be updated to reference the correct
office.
Section 75.221 Procedures the Department Uses Under Sec. 75.219(b)
Current Regulation: Section 75.221 provides that, if the special
circumstances of Sec. 75.219(b) appear to exist for an application,
the Secretary may select the application for funding if: the Secretary
has documentary evidence that the special circumstances of Sec.
75.219(b) exist; and (b) the Secretary has a statement that explains
the circumstances of the mishandling.
Proposed Regulation: We propose to revise Sec. 75.221 to improve
its clarity and eliminate the requirement that the Secretary have a
statement that explains the circumstances.
Reasons: We propose to revise the provision to improve its clarity
and eliminate unnecessary language. The proposed changes would remove
the requirement for an explanation of the mishandling separate from
documentation of the circumstances of the mishandling. The Department
does not believe that further explanation of the reasons the
application was mishandled is necessary if the Secretary has
documentation of the circumstances, already required under Sec.
75.219(b).
Section 75.522 Procedures the Department Uses Under Sec. 75.219(c)
Current Regulation: Section 75.222 describes the procedures for
considering an unsolicited application, including the note accompanying
Sec. 75.222 references the Application Control Center, which no longer
exists.
Proposed Regulation: Proposed Sec. 75.222 would update the mailing
procedures for unsolicited applications to align with the mailing
procedures discussed in the Common Instructions for Applicants to
Department of Education Discretionary Grant Programs, published in the
Federal Register on December 7, 2022 (87 FR 75045).
Section 75.225 What procedures does the secretary use if the secretary
decides to give special consideration to novice applications?
Current Regulation: Section 75.225 describes the circumstances in
which the Secretary may give an absolute or competitive preference to
an applicant that meets the definition of ``novice applicant.'' To be a
``novice applicant'' under current Sec. 75.225, an applicant must
have, in part: (1) never received a grant or subgrant under the program
from which it seeks funds; (2) never been a member of a group
application; and (3) not had an active discretionary grant from the
Federal government in the last five years.
Proposed Regulation: Proposed Sec. 75.225 would replace the term
``novice applicant'' with the term ``new potential grantee'' and
provide a definition of that new term. The proposed definition includes
five options from which the Department could choose to apply one or
more of the conditions to a specific competition. The options of
conditions for defining a new potential grantee would include: (1) an
applicant that has never received a grant or cooperative agreement,
including membership in a group application submitted in accordance
with Sec. Sec. 75.127-75.129 that received a grant, under the program
from which it seeks funds; (2) an applicant that does not, as of the
deadline date for submission of applications, have an active grant or
cooperative agreement, including membership in a group application
submitted in accordance with Sec. Sec. 75.127-75.129 that received a
grant, under the program from which it seeks funds; (3) an applicant
that has not had an active discretionary grant or cooperative
agreement, including membership in a group application submitted in
accordance with Sec. Sec. 75.127-75.129 that received a grant, under
the program from which it seeks funds in a specified number of years
before the deadline date for submission of applications under the
program; (4) an applicant that has not had an active discretionary
grant or cooperative agreement from the Department, including
membership in a group application submitted in accordance with
Sec. Sec. 75.127-75.129 that received a grant, in a specified number
of years before the deadline date for submission of applications under
the program; or (5) an applicant that has not had an active contract
from the Department in a specified number of years before the deadline
date for submission of applications under the program from which it
seeks funds. Based on program needs, a discretionary grant program
could choose to define ``new potential grantee'' using one or any
combination of the five options described in proposed Sec. 75.225(a).
If used, the Secretary would specify the number of years for
definitions (3), (4), and (5) in the NIA by selecting from among the
identified options, as described in proposed Sec. 75.225(b). In
addition, the proposed regulations would create a corresponding inverse
priority for applicants that are not ``new potential grantees'' to be
used when the Secretary creates an absolute priority for ``new
potential grantees'' and plans to create multiple funding slates for
applicants that are ``new potential grantees'' and those that are not.
The intent is for this inverse option to be used when the ``new
potential grantee'' priority is used as an absolute priority, and there
is a need to be able to create another funding slate for those
applicants that do not meet the ``new potential grantee'' priority.
Reasons: Since the enactment of this regulation in 2002, we have
discovered that the definition of ``novice applicant'' is often complex
and overly restrictive in practice. For instance, many of the
Department's grant programs have very few, if any, eligible entities
(such as institutions of higher education) that have not had other
discretionary grants from the Federal government in the last five
years. Despite Sec. 75.225 being applicable to all the Department's
discretionary grant programs, many programs have needed to create
program-specific definitions of ``novice applicant'' that are tailored
to their individual contexts because the vast majority of prospective
applicants for our programs would not meet the current definition of
``novice applicant'' in Sec. 75.225. These proposed revisions would
provide the Department's programs with increased options to define
``new potential grantee.'' We think that these proposed revisions would
allow this priority to be usable in more discretionary grant programs
and more effectively promote the Department's interest in awarding
grants to a more diverse and inclusive variety of applicants.
Furthermore, these revisions align with the successful implementation
of the ``Applications from New Potential Grantees'' and ``Applications
from Grantees that are Not New Potential Grantees'' priorities from the
Administrative Priorities for Discretionary Grant Programs published in
the Federal Register on March 9, 2020 (85 FR 13640) (Administrative
Priorities), which have worked well in allowing the Department to
prioritize
[[Page 1990]]
new potential grantees. We propose to add those priorities to the
regulations for clarity and consistency.
In the Administrative Priorities and proposed here, option (1)
would apply in programs where the Department would intend to focus on
applicants that have never received a grant under the program; option
(2) would apply in grant competitions for which the Department would
intend to prioritize ``new potential grantees'' without an active grant
under the program; option (3) would apply in the event that a program
may have multiple cohorts of grantees, and the Department would intend
to define ``new potential grantees'' as those that have not had a grant
under the program for the specified number of years; option (4) would
apply when the Department would intend to be inclusive of other
Department grant programs when determining ``new potential grantees;''
and option (5) would apply in cases when there are grant programs where
an applicant may not have a Department grant but may have Department
contracts and is familiar with the work of the Department already. The
intent of these options is to take into consideration program specific
contexts, such as the different characteristics of programs, including
different types of applicants and different frequencies in which grant
competitions are run.
Section 75.226 What procedures does the Secretary use if the Secretary
decides to give special consideration to applications supported by
strong, moderate, or promising evidence?
Current Regulation: Section 75.226 describes the Secretary's
authority to give special consideration to applications supported by
strong, moderate, or promising evidence.
Proposed Regulation: The proposed revision would also permit the
Secretary to give special consideration to an application that
``demonstrates a rationale'' as defined in Sec. 77.1(c) without
disallowing evidence that may meet more than one of the four levels
described in that section. We also propose removing cross-references to
the definitions of ``strong evidence,'' ``moderate evidence,'' and
``promising evidence'' in Sec. 77.1(c), because we do not include such
cross-references elsewhere in part 75, and they are not necessary.
Reasons: While we continue to be very interested in grant projects
that are supported by rigorous evidence, we recognize that the research
base supporting many of our discretionary grant programs is still
emerging. In addition, we think it is important to provide incentives
for innovative approaches to systemic problems in education wherever
possible. Adding the ``demonstrates a rationale'' level of evidence to
Sec. 75.226 would allow the Department to give priority to
applications that meet this standard, thereby requiring or encouraging
applicants to incorporate research into their project planning, where
possible, while still supporting the identification of innovative
solutions. This addition is also consistent with the ``Applications
that Demonstrate a Rationale'' priority in the Administrative
Priorities, which has been beneficial to achieving these objectives in
discretionary grant competitions.
Section 75.227 [Reserved]
Current Regulation: Section 75.227 is currently reserved.
Proposed Regulation: We propose to add a new Sec. 75.227 that
would allow the Secretary to establish a separate competition for, or
provide competitive preference to, applicants that propose to serve
rural locations. Specifically, the Secretary could decide to give such
special consideration to applicants that can demonstrate one or more of
the following: (1) the area the applicant proposes to serve is a rural
LEA, (2) the area the applicant proposes to serve is a rural community,
(3) the area the applicant proposes to serve is a rural school, or (4)
the applicant is a rural institution of higher education. We propose to
utilize rural programs authorized under ESEA as well as the locale
codes from the National Center for Education Statistics School District
search tool, given that there are different Federal definitions for
``rural.'' The proposed regulation also specifies that, if using an
absolute priority related to rural applicants, the Secretary may also
include an absolute priority for applicants that do not meet that
priority in order to offer separate competitions, resulting in separate
rank orders, for each competition.
Reasons: Rural communities face unique challenges due to their
being remote, and they also have unique opportunities. These factors
are reflected in many program statutes' priorities accorded to
applicants that serve rural communities in many Department programs,
but we believe that it is necessary that every discretionary grant
program have the option to give priority to applicants that will serve
rural communities. This section would enable the Department to
specifically encourage applications that will provide services in rural
communities. This addition would also be consistent with ``Rural
Applicants'' and ``Non-Rural Applicants'' priorities in the
Administrative Priorities, which have worked well to achieve these
goals in discretionary grant competitions.
Section 75.234 The Conditions of the Grant
Current Regulation: Section 75.234 refers to ``special conditions''
that the Secretary determines prior to making a grant.
Proposed Regulation: Proposed Sec. 75.234 replaces the term
``special'' with the term ``specific.''
Reasons: ``Specific'' is the term the Department now uses,
consistent with 2 CFR 200.208 to refer to conditions imposed on a grant
award. The change is not substantive.
Section 75.250 Maximum Funding Period
Current Regulation: Section 75.250(a) provides that the Secretary
may approve a project period of up to 60 months to perform the
substantive work of the grant.
Proposed Regulation: We propose to revise the heading for Sec.
75.250 to change ``funding'' to ``project'' and propose to revise Sec.
75.250(a) to clarify that the Secretary may approve project periods of
up to 60 months unless statutory authority provides otherwise. We also
propose removing Sec. 75.250(b) because we propose a new Sec. 75.254
to separately address data collection periods.
Reasons: We propose the change to the heading to align with the use
of the term ``project period'' in Sec. 75.250(a). We propose the
change to Sec. 75.250(a) to clarify that EDGAR does not supersede the
applicable statutes and regulations that apply to a given program. We
also propose to delete Sec. 75.250(b) as we propose a new Sec. 75.254
to allow for data collection periods separate from the extension of a
project period.
Section 75.253 Continuation of a Multiyear Project After the First
Budget Period
Current Regulation: Section 75.253 describes the process and
requirements for making continuation awards.
Proposed Regulation: The proposed revisions would clarify those
procedures and requirements, including addition of verification of the
quality data submitted, and explain that, if the Department decides not
to make a continuation award, a grantee will be given an opportunity to
object under 2 CFR 200.341 through a request for reconsideration. They
also would explain existing Department practices that a determination
by the Secretary to not make a continuation award, or to reduce the
amount of a continuation
[[Page 1991]]
award, to a grantee does not constitute a withholding under section 455
of GEPA (20 U.S.C. 1234d).
Reasons: These proposed changes would reflect existing Department
practices and provide a clearer description of the relevant
requirements and procedural rights of grantees in the continuation
awards process. In addition, these revisions would explain that a
determination by the Department not to make a continuation award, or to
reduce the amount of a continuation award, to a grantee does not
constitute a withholding under section 455 of GEPA. That provision of
GEPA deals with circumstances in which funds have already been
obligated, such as a discretionary grantee that has already received a
continuation award or, as is the case with a formula grant program, a
grantee that is entitled to receive funds or has already received funds
if it meets certain eligibility requirements. Neither of these
conditions is present if the Secretary decides to not make, or to
reduce, a continuation award.
Section 75.254 [Reserved]
Current Regulation: Section 75.254 is currently reserved.
Proposed Regulation: We propose to add a new Sec. 75.254 that
would allow the Secretary to award a data collection period of up to 72
months after the end of the project period and provide funds for the
data collection period. The proposed regulation would also set forth
how the Secretary would inform applicants of this data collection
period. It would further state that the Secretary may require
applicants to include a budget and description for the data collection
period in their applications if the data collection period is announced
through the NIA.
Reasons: Currently, Sec. 75.250 allows for a data collection
period for a grant for a period of up to 72 months after the end of the
project period. However, Sec. 75.250 is not an option for those
Department programs for which there is a maximum statutory performance
period. Flexibility in how and for which programs the Department can
allow data collection awards would give us opportunities to learn more
about the impacts of our grants. Statutory limitations on project
periods inhibit this longer-term data collection that could inform
impacts beyond grant project periods. Furthermore, the Department
operationalizes the data collection period under Sec. 75.250 as a
separate grant award and establishing a separate section in EDGAR gives
the Department greater flexibility in how to use data collection
awards. This section would also align with a similar priority from the
Administrative Priorities, building on lessons learned from that
priority, including notifying applicants in the NIA to propose a
timeline that includes a data collection period.
Section 75.261 Extension of a Project Period
Current Regulation: Section 75.261 describes when grant project
periods may be extended and under what conditions a grantee may receive
a project period extension.
Proposed Regulation: Proposed Sec. 75.261 would clarify that there
are two types of project period extensions: (1) a one-time extension of
up to 12 months without prior approval if the requirements in 2 CFR
200.308(e)(2) are met and there are no applicable statutes,
regulations, or grant conditions prohibiting such an extension; and (2)
an additional extension beyond the 12 months with prior approval of the
Secretary, if certain other conditions are met. The proposed revision
also would remove references to specific technical assistance centers
in current paragraph (b) that no longer exist, correct citations, and
align language to be consistent with the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements (the Uniform
Guidance) for Federal Awards in 2 CFR part 200, as adopted and amended
as regulations of the Department in 2 CFR part 3474.
Reasons: The regulation, as currently written, includes numerous
revisions made over the years and is now in need of streamlining, and
contains outdated references and citation errors. These proposed
changes would promote greater clarity and accessibility for the public
regarding project period extensions. The proposed changes are not
substantive.
Section 75.263 Pre-Award Costs; Waiver of Approval
Current Regulation: Section 75.263 describes when pre-award costs
may be incurred.
Proposed Regulation: Proposed Sec. 75.263 would remove the clause
``notwithstanding any requirement in 2 CFR part 200.''
Reasons: The language we propose to remove is not necessary to
establish that the requirements of 2 CFR part 200 apply; removing it
would add clarity to the regulation. The proposed change is not
substantive.
Section 75.519 Dual Compensation of Staff
Current Regulation: Section 75.519 prohibits paying for project
staff who are compensated from another source of funds.
Proposed Regulation: Proposed Sec. 75.519 would add a reference to
the cost principles described in 2 CFR part 200, subpart E--Cost
Principles.
Reasons: The reference we propose to add provides the source for
the prohibition discussed in Sec. 75.519. The change is not
substantive.
Sections 75.560-75.564 Indirect Cost Rates
Current Regulations: Sections 75.560-75.564 describe the
application of indirect costs under discretionary grant programs,
including who approves indirect costs rates and how they are applied.
Proposed Regulations: The proposed revisions would align these
sections of EDGAR with the Uniform Guidance in 2 CFR part 200, include
cost allocation plans along with indirect costs rates, and provide
clarity on the application of indirect cost rates.
Reasons: The Uniform Guidance sets out requirements that apply to
Federal grants and was adopted by the Department in 2 CFR part 3474.
The Uniform Guidance, in conjunction with EDGAR, governs Department
grants and therefore these provisions should be closely aligned with
one another. These sections of EDGAR do not reflect recent updates to
the Uniform Guidance, including the addition of the de minimis rate,
referencing cost allocation plans as performing a role equivalent to
indirect costs rate, and clarifications on restricted rates, and this
alignment is necessary to ensure that there is no confusion. Moreover,
the proposed changes are intended to add clarity regarding how indirect
cost rates are applied, as well as the indirect cost rate options an
entity has.
Section 75.590 Evaluation by the Grantee
Current Regulation: Section 75.590 describes what grantees must
demonstrate or provide to the Department regarding performance
reporting and the evaluation of their projects.
Proposed Regulation: The proposed revision would add a new
paragraph (c) that would permit the Department to include a requirement
for an independent evaluation in any grant competition, for the results
of that evaluation to be made public, including the option to make the
data available to third-party researchers, and for the results of that
evaluation or a grantee final report to be submitted to ERIC, which is
administered by IES.
[[Page 1992]]
Reasons: We want to have more tools available to build, use, and
disseminate rigorous evidence more effectively. Requiring grantees to
conduct independent evaluations, where appropriate, would help increase
the credibility of their project evaluations because the entity
conducting the evaluation would have no vested interest in the outcome
of the evaluation. An independent evaluation to assess the
implementation or impact of a project or project component has the
potential to build the evidence base through the work of competitive
program grantees, and the sharing of data with third-party researchers
allows for additional data analysis. Submitting evaluations and the
final performance reports under grants to ERIC can help identify
emerging evidence and promote further research.
Section 75.591 Federal Evaluation--Cooperation by a Grantee
Current Regulation: Section 75.591 requires grantees to cooperate
in the Department's efforts to evaluate the program supporting their
project.
Proposed Regulation: We propose to clarify the types of activities
that grantees could be expected to undertake as part of their
participation in a Federal program evaluation.
Reasons: Although the current regulation makes it clear that
grantees must cooperate with the Secretary's evaluation of the program,
it does not provide potential applicants information about what that
cooperation might entail. The proposed regulation would provide
increased transparency about the types of activities in which a grantee
may be required to participate. For example, a grantee may be required
to participate in a randomized controlled trial conducted by the
Department, and we think that it is important to provide clarity, where
possible, on grantee expectations under the regulation.
Section 75.600-75.617 Construction
Current Regulations: Sections 75.600-75.617 cover various
regulations related to construction projects and the acquisition of
real property.
Propose Regulation: We propose to amend certain regulations related
to construction projects and real property acquisition in parts 75, 76,
and 77. The proposed changes to parts 76 and 77 are addressed in more
detail in the applicable sections of this preamble.
Specifically, the proposed changes include the following:
<bullet> A reorganization of Sec. Sec. 75.600-75.614 for a more
logical progression of the statutory and regulatory requirements at
each stage of the construction project. The proposed regulations are
organized to progress through all the stages of a construction project,
through Department approval (Sec. 75.601), planning the project (Sec.
75.602), beginning the project (Sec. 75.603), during the project
(Sec. 75.604), and after the project (Sec. 75.605).
<bullet> Clarifying that the Secretary considers a grantee's
compliance with specific statutes and regulations related to
construction prior to approval of the construction project (proposed
Sec. 75.602(c)).
<bullet> Adding specific provisions regarding real property
acquisition that, in part, incorporate requirements from existing
governmentwide assurances, including nondiscrimination assurances
(proposed Sec. 75.606). These provisions mirror the construction
provisions in proposed Sec. 75.601 to clarify that real property
projects must also receive Department approval.
<bullet> Incorporating, and updating, as appropriate, applicable
cross references to the Uniform Guidance and other applicable law in
the various stages of the construction project in various sections of
the regulations.
<bullet> Moving and consolidating the requirements currently in
Sec. Sec. 75.607-75.608 into proposed Sec. 75.602. We do not propose
any substantive changes to the current requirements in Sec. 75.607 or
Sec. 75.608.
<bullet> Decreasing the period for which the grantee must retain
title to the site from 50 years to 25 years in proposed Sec. 75.610.
<bullet> Clarifying the requirements of the National Environmental
Policy Act of 1969 (NEPA) (proposed Sec. 75.611). This section would
not create a requirement, but rather provide additional guidance that
the NEPA requirements apply to ``major Federal projects'' as defined by
NEPA.
<bullet> Moving the requirements of Sec. 75.611 (Avoidance of
flood hazards) and Sec. 75.617 (Compliance with the Coastal Barrier
Resources Act) to proposed Sec. 75.612 and Sec. 75.613, respectively.
We do not propose any substantive changes to the current requirements
in Sec. 75.611 or Sec. 75.617.
<bullet> Clarifying the process and roles of the Secretary and
State reviewing a construction project involving historic preservation
(proposed Sec. Sec. 75.614 and 76.600). We do not propose any
substantive changes to the current requirements in Sec. 75.602.
<bullet> Adding the applicability of the new Build America, Buy
America Act to construction projects (proposed Sec. 75.615). This
section explains that a grantee must comply with the requirements of
the Build America, Buy America Act, Public Law 117-58, Sec. 70901-
70927 and implementing regulations in 2 CFR part 184.
<bullet> Updating the requirements of Sec. 75.616 (Energy
conservation) to require compliance with the most current ASHRAE
standards. The current regulation requires compliance with standards
from 1975, 1977, and 1980, respectively.
<bullet> Moving the requirements of Sec. 75.610 (Access by the
handicapped) to proposed Sec. 75.617 and updating the title to
``Access for individuals with disabilities.'' We do not propose any
substantive changes to the current requirements in Sec. 75.610.
<bullet> Moving and consolidating the requirements currently in
Sec. 75.609 (Comply with safety and health standards) into proposed
Sec. 75.618. We do not propose any substantive changes to the current
requirements in Sec. 75.609.
Reasons: The purpose of these proposed changes is to update the
current construction regulations in response to statutory changes and
related issues that have arisen over the last thirty years, as many of
the regulations for this section have not been updated since 1992; to
better align the regulations to the Uniform Guidance that was first
promulgated in 2014 and updated in 2020; and to improve clarity and
transparency regarding Federal program operations. The Department
proposes to decrease the period in proposed Sec. 75.610 because we
found that grantees with site leases had difficulty establishing that
they had an option to extend their lease for 50 years. Rather, we
propose to reduce to 25 years or the useful life of the construction,
which we think more closely aligns with the Federal investment. We also
propose to update these regulations to include the requirements
grantees must follow during construction projects under the Build
America, Buy America Act, Pub. L. 117-58, Sec. 70901-70927. The Build
America, Buy America Act was enacted as part of the overall
Infrastructure Investment and Jobs Act in November 2021. The purpose of
the Build America, Buy America Act is to create demand for domestically
produced goods, helping to sustain and grow domestic manufacturing.
Section 75.618 Charges for Use of Equipment or Supplies
Current Regulation: Section 75.618 states that a grantee may not
charge for ordinary use of equipment or supplies.
Proposed Regulation: We propose to repurpose Sec. 75.618 for use
under the Construction subheading and move the current Sec. 75.618 to
currently unused
[[Page 1993]]
Sec. 75.619. We do not propose any changes to the text of this
section.
Reasons: To create space for an additional section under the
Construction heading regarding safety and health standards, we propose
to move current Sec. 75.618 to Sec. 75.619.
Section 75.620 General Conditions on Publication
Current Regulation: Section 75.620(b) includes the text of a
statement that grantees must include in any publication that contains
project materials.
Proposed Regulation: The proposed revision would update the
required statement with current and more comprehensive language,
including current forms of publication, such as on a website or a web
page.
Reasons: The statement was last updated in 1980. Since then,
Federal Government endorsement disclaimers, including the one in Sec.
75.620(b), have evolved to be more comprehensive. We propose updating
the statement to mirror the standard disclaimer used by the Department
in other contexts, such as what the Department may require on work
products developed by Department contractors. In addition, methods of
publication have changed since 1980, to include websites and web pages.
Section 75.623 Public Availability of Grant-Supported Research Articles
Current Regulation: None.
Proposed Regulation: We propose to add a new Sec. 75.623 to
require each grantee that prepares a peer-reviewed scholarly
publication as part of its grant award or based on grant-funded
research to make the publication available to the public by submitting
the final peer-reviewed scholarly publication to ERIC. To support Sec.
75.620, we also propose to add a definition of ``peer-reviewed
scholarly publication'' under Sec. 77.1(c).
Reasons: This section would align the practice of the entire
Department with the current practice of IES, which requires all its
grantees to make their peer-reviewed publications available to the
public in this manner. Currently, these materials are exempt from the
open licensing requirements in 2 CFR 3474.20. Applying the requirement
in this section to peer-reviewed publications produced under grants
made by other offices in the Department is in line with the
Department's Plan and Policy Development Guidance for Public Access,\1\
with the Office of Science and Technology Policy's memorandum,
Increasing Access to the Results of Federally Funded Research,\2\ and
would ensure that the results of grant-funded research are available to
a wider array of Department partners and other interested parties than
is currently the case.
---------------------------------------------------------------------------
\1\ The Department's Plan and Policy Development Guidance for
Public Access is available at <a href="https://ies.ed.gov/funding/pdf/EDPlanPolicyDevelopmentGuidanceforPublicAccess.pdf">https://ies.ed.gov/funding/pdf/EDPlanPolicyDevelopmentGuidanceforPublicAccess.pdf</a>.
\2\ The Office of Science and Technology Policy's memorandum is
available at <a href="https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf">https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf</a>.
---------------------------------------------------------------------------
Section 75.700 Compliance With the U.S. Constitution, Statutes,
Regulations, Stated Institutional Policies, and Applications
Current Regulation: Section 75.700 states that grantees shall
comply with and uses Federal funds in accordance with applicable
statutes, regulations, and approved applications.
Proposed Regulation: We propose to revise Sec. 75.700 to include
Executive orders in addition to statutes, regulations, and approved
applications.
Reasons: We propose this revision to align Sec. 75.700 to Sec.
75.708, which includes the requirement for subgrantees to comply with
Executive orders.
Section 75.708 Subgrants
Current Regulation: Section 75.708(b) states that the Secretary
may, through an announcement in the Federal Register, authorize
subgrants when necessary to meet the purposes of a program, and
paragraph (e) states that grantees may contract for supplies,
equipment, construction, and other services.
Proposed Regulation: We propose to revise paragraph (b) to state
that this authorization may take place ``through an announcement in the
Federal Register or other reasonable means of notice.'' We propose to
revise paragraph (e) to clarify that, when subgrants are not allowed,
grantees are still authorized to contract, as needed, for supplies,
equipment, and other services.
Reasons: There may be circumstances in which Federal Register
notification is not the most efficient or effective way for the
Secretary to authorize subgrants. To account for these situations, we
propose adding more flexibility to the current regulation. We also
propose to clarify when and how contracts for supplies, equipment, and
other services can be used when subgrants are not allowed.
Section 75.720 Financial and Performance Reports
Current Regulation: Section 75.720 sets out the financial and
performance reporting requirements that grantees must meet.
Proposed Regulation: We propose to add a new paragraph (d) that
would require grantees to publish, on a public-facing website, the
reports they submit to the Secretary under Sec. 75.720 upon request of
the Secretary. Under this new paragraph, the Secretary could choose
which grant competitions would be subject to this requirement. The
Department expects that any such publication on a public-facing website
would be consistent with applicable accessibility requirements and in
accordance with privacy laws.
Reasons: This requirement would increase transparency with respect
to grantee performance and provide useful information on the
effectiveness of projects supported by Department grant funds to
grantee participants and beneficiaries as well as the general public.
Section 75.901 Suspension and Termination
Current Regulation: Section 75.901 indicates that the Secretary may
use the Office of Administrative Law Judges (OALJ) to resolve disputes
concerning a variety of matters that are not subject to other
proceedings.
Proposed Regulation: We propose to revise the introductory language
to this regulation by removing the following words: ``that are not
subject to other procedures.''
Reasons: This proposed change would clarify the authority of the
Secretary to use the OALJ to resolve disputes on the matters identified
in Sec. 75.901(a)-(f).
Part 76 State-Administered Programs
Section 76.1 Programs to Which Part 76 Applies
Current Regulation: Section 76.1 describes the programs to which
part 76 applies. Paragraph (a) of Sec. 76.1 references ``each State-
administered program'' while paragraph (b) references ``a State formula
grant program.''
Proposed Regulation: We propose to revise the language in both
paragraphs to clarify that part 76 applies to ``State-administered
formula grant programs.'' We also propose to make conforming changes,
as necessary, throughout this part, including the title for this part.
Reasons: Inconsistent use of terms within part 76 could create
confusion about its applicability. These updates would clarify that all
provisions of part
[[Page 1994]]
76 apply only to ``State-administered formula grant programs.''
Section 76.50 Statutes Determine Eligibility and Whether Subgrants Are
Made
Current Regulation: Section 76.50 describes the circumstances in
which the Secretary makes a grant to a State agency, either as directed
by the applicable statute and regulation or as designated by the State
consistent with the applicable statute and regulation. The regulation
states explicitly that the applicable statute determines the extent to
which a State may use grant funds itself or make subgrants. Regarding
subgrants, Sec. 76.50(c) states that the regulations in part 76 on
subgrants apply to a program only if subgrants are authorized under
that program, and paragraph (d) states that the applicable statute
determines an applicant's eligibility for a subgrant.
Proposed Regulation: We propose to modify Sec. 76.50 in six
general ways. First, we propose to change the heading to read ``Basic
Requirements for Subgrants.'' Second, we propose to add references to a
State-administered formula grant program's regulations throughout.
Third, we propose to make clear in new paragraph (b) that States may
make subgrants using funds from State-administered formula grant
programs unless prohibited by their authorizing statutes, implementing
regulations, or the terms and conditions of their awards. Fourth, we
propose to delete paragraphs (c) on how other requirements in part 76
apply to subgrants and (d), which was a previous statement about
entities eligible for subgrants, and to incorporate essential
requirements into new paragraph (b). Fifth, we propose to add a new
paragraph (c) to explicitly identify grantee responsibility for
subgrantee monitoring consistent with 2 CFR 200.332. Finally, we
propose to add a new paragraph (d) to clarify that subgranting
prohibitions under which Department programs operate should not be
construed as prohibiting grantees from entering into contracts for
goods or services in accordance with 2 CFR part 200, subpart D--Post
Federal Award Requirements (2 CFR 200.317-200.326).
Reasons: We propose to modify this section to ensure that State-
administered formula grant programs have maximum flexibility to make
subgrants. To that end, we propose to revise the heading to signal to
States that subgrants are allowed, unless specifically prohibited by
statute, regulation, or the terms and conditions of a grant award.
Under the current regulations, some State-administered formula grant
programs have interpreted statutory silence as meaning that subgranting
is not permissible. We believe that the proposed regulations would
address this unintended consequence through the changes proposed to the
heading and to new paragraph (b). However, we may prohibit subgranting
under the terms and conditions of a grant award, as appropriate, such
as when subgranting would be counter to fundamental statutory or
regulatory requirements for a program. We also propose to refer to both
applicable statutes and regulations throughout the provision, rather
than just statutes, in case the applicable regulations provide
necessary clarification. We propose to remove current paragraph (b)
because it does not provide any guidance that is not already provided
in a program's authorizing statute. We propose to incorporate essential
requirements from paragraphs (c) and (d) into new paragraph (b). As a
result, we propose to delete current paragraphs (c) and (d) as no
longer necessary. We propose to add new paragraph (c) to highlight
grantee responsibilities for monitoring subgrantees to encourage fiscal
responsibility, transparency, and appropriate control of taxpayer
funds. We propose to add a new paragraph (d) to clarify that,
regardless of the authority to subgrant, a grantee is authorized to
contract for supplies, equipment, and other services in accordance with
2 CFR part 200, subpart D--Post Federal Award Requirements (2 CFR
200.317-200.326.
Section 76.101 The General State Application
Current Regulation: Section 76.101 requires a State that makes
subgrants to LEAs under a program subject to this part to have on file
with the Secretary a State plan that meets the requirements of section
441 of GEPA (20 U.S.C. 1232d).
Proposed Regulation: We propose to revise Sec. 76.101 to make
clear that the requirements of section 441 of GEPA do not apply to a
State plan submitted for a program under the ESEA.
Reasons: Section 8304(b) of the ESEA (20 U.S.C. 7844(b)) states
that the requirements of section 441 of GEPA do not apply to State
plans under the ESEA. The purpose of this change is to align the
regulations with that statutory provision.
Section 76.102 Definition of State Plan for Part 76
Current Regulation: Section 76.102 includes a table specifying
applications or other documents required under various State-
administered formula grant programs that, for the purpose of part 76,
are considered ``State plans.''
Proposed Regulation: We propose to remove the table from Sec.
76.102 and to describe a State plan, as that term is used in part 76,
as ``any document that the applicable statutes and regulations for a
State-administered formula grant program require a State to submit in
order to receive funds for the program.'' To the extent that any
provision of part 76 conflicts with program-specific implementing
regulations related to the plan, the program-specific implementing
regulations govern.
Reasons: Current Sec. 76.102 includes a table intended to list all
programs that are covered by the State plan regulations in part 76.
However, some of the listed programs no longer exist. Other programs
have been renamed under a reauthorized statute. Rather than update the
table of programs, given that programs may become outdated in the
future, we believe that a definition aligned with governing statutes
and regulations would be the best way to convey the intended scope of
the provision. In addition, the proposed regulations would make clear
that, if any provision of part 76 conflicts with program-specific
implementing regulations related to the plan, the program-specific
implementing regulations govern.
Section 76.103 Multi-Year State Plans
Current Regulation: Section 76.103 makes clear that a State plan
will be effective for a period of more than one fiscal year, to be
determined by the Secretary or by regulations. It authorizes the
Secretary to stagger submission of State plans and identifies numerous
programs to which the section does not apply.
Proposed Regulation: We propose to simplify Sec. 76.103 by
deleting the list of programs to which the provision does not apply.
Instead, we would make clear that a State plan may be effective for
more than one year unless otherwise specified by statute, regulation,
or the Secretary. In addition, we remove the note at the end of this
section.
Reasons: All the programs listed in Sec. 76.103(c) have been
reauthorized or repealed since the provision was promulgated in 1980.
Rather than listing other programs that could become outdated, we would
add language that affords flexibility for a multiyear State plan unless
a statute, regulation, or the Secretary specifies otherwise. We also
propose to remove the note at the end of this section because it is
outdated and no longer needed.
[[Page 1995]]
Sections 76.125-76.137 Consolidated Grant Applications for Insular
Areas
Current Regulation: The Department's consolidated grant authority
regulations in part 76, as well as in the definitions of ``State'' in
Sec. Sec. 77.1(c) and 79.2, refer to the Trust Territory of the
Pacific Islands. In addition, Sec. 76.125(c) states that the Secretary
may make annual consolidated grants to assist an Insular Area in
carrying out a Department State-administered formula grant program. The
following sections then refer to programs listed in Sec. 76.125 as
being eligible for consolidation.
Proposed Regulations: We propose to update the regulations to
remove all references to the Trust Territory of the Pacific Islands. In
addition, the proposed regulations would revise Sec. 76.125(c) to
clarify that grantees may consolidate grants only if not otherwise
prohibited from doing so by applicable law. Also, we propose to change
all references in the following sections from ``programs listed in
Sec. 76.125(c)'' to ``State-administered formula grant programs.'' We
also propose to revise the examples in Sec. Sec. 76.128 and 76.129 to
update the statutory references, and to make conforming changes to
remove the term ``Trust Territory of the Pacific Islands,'' from the
definitions of ``State'' in Sec. Sec. 77.1(c) and 79.2.
Reasons: The Trust Territory of the Pacific Islands was a United
Nations trust territory administered by the United States from 1947 to
1986. During the latter part of that time, it was eligible for
Department program funding and services much like the Outlying Areas of
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam,
and the U.S. Virgin Islands. For that reason, it was included, in
EDGAR, in the Department's consolidated grant authority regulations as
well as in the EDGAR definitions of ``State'' in Sec. Sec. 77.1(c) and
79.2.
The trusteeship ended in 1986 and from it emerged the Federated
States of Micronesia, the Republic of the Marshall Islands, and the
Republic of Palau (collectively, the Freely Associated States). While
the Freely Associated States still have a special relationship with the
United States and each of them receives certain funds through the
Department, as provided in their Compacts of Free Association with the
United States, they do not receive funds as part of the Trust Territory
of the Pacific Islands, which no longer exists. On this point, as a
purely technical matter, we propose to delete the outdated reference to
the Trust Territory of the Pacific Islands.
The change to Sec. 76.125(c) would clarify that consolidation may
take place only in a manner that is consistent with applicable law. For
clarity, we propose to update references elsewhere to Sec. 76.125(c)
to refer directly to ``State-administered formula grant programs.''
Sections 76.140-76.142 State Plan Amendments
Current Regulation: Section 76.140 requires a State to amend its
State plan if the Secretary determines that an amendment is essential
or if there is a significant and relevant change regarding the plan.
Section 76.141 requires a State to use the same procedures when
amending its State plan as it did when submitting the plan to the
Secretary. Section 76.142 requires the Secretary to use the same
procedures to approve an amendment as the Secretary used when reviewing
and approving the initial State plan.
Proposed Regulation: We propose to remove duplicate language in
Sec. 76.140(b) regarding when an amendment is needed. New proposed
paragraph (c) would incorporate current Sec. 76.141 with revisions
that would allow the Secretary to prescribe different procedures for a
State to amend its State plan based on the characteristics of a
particular State-administered formula grant program. We propose to
remove Sec. Sec. 76.141-76.142.
Reasons: The current regulations, in Sec. 76.140(b), go into
greater detail than necessary about the kinds of changes that result in
an amendment; the proposed regulations would simplify and clarify the
regulations by stating that a State must submit an amendment whenever
there is a significant and relevant change in information or assurances
in the State plan. The language in current Sec. 76.140(b)(2) and
(b)(3) could be included in the general ``information'' in the State
plan and thus we propose combining the provisions in proposed Sec.
76.140(b)(1). Current Sec. Sec. 76.141-76.142 are overly prescriptive
in requiring States and the Secretary to use the same process for
submitting and approving amendments as they used when submitting and
approving an initial State plan. Those processes may be burdensome and
may not always be appropriate for an amendment to a State plan. We
propose to remove current Sec. 76.141 and add a new paragraph (c) to
Sec. 76.140, which seeks to provide flexibility so that the Secretary
may prescribe different procedures for States to use based on the
specific State-administered formula grant program. The proposed
regulations would also remove the requirement in current Sec. 76.142
that the Secretary follow the same procedures when approving an
amendment as the Secretary used to approve the initial State plan in
order to allow the Secretary discretion to streamline the approval of
amendments.
Section 76.301 Local Educational Agency Application in General
Current Regulation: Section 76.301 requires an LEA that applies for
a subgrant under a program subject to part 76 to have on file with the
State an application that meets the requirements of section 442 of GEPA
(20 U.S.C. 1232e).
Proposed Regulation: We propose to make clear that the requirements
of section 442 of GEPA do not apply to an LEA application for a program
under the ESEA.
Reasons: Section 8306(b) of the ESEA (20 U.S.C. 7846(b)) states
that the requirements of section 442 of GEPA do not apply to LEA plans
under the ESEA. We propose this change to align the regulation with the
statute.
Section 76.401 Disapproval of an Application--Opportunity for a Hearing
Current Regulation: Section 76.401 sets forth the requirements that
a state educational agency (SEA) must meet when disapproving an
application for a subgrant in one of the Department's covered State-
administered formula grant programs, which are identified in a table in
the regulations. The regulation restates the requirements in section
432 of GEPA (20 U.S.C. 1231b-2), including the due process an SEA must
provide to an applicant for a subgrant before (or after, in some cases)
the SEA either: (1) disapproves or fails to approve a subgrant
application in whole or in part; or (2) fails to provide funds in
amounts in accordance with the requirements of laws and regulations.
Section 76.401 also reiterates the statutory requirements for the
relevant timelines, the right of an applicant to appeal an SEA's final
decision disapproving an application or failing to provide funds in the
required amount to the Secretary, and the standard of review that the
Secretary must apply in considering such an appeal. Section 76.401 is
silent regarding the information that must be included in a notice of
appeal submitted to the Secretary. Under Sec. 76.401(b), the
requirements for providing an opportunity for a hearing before
disapproving a subgrant application do not apply to a State agency
other than an SEA.
Proposed Regulation: We propose to revise the regulation in current
Sec. 76.401 in several respects by:
[[Page 1996]]
(1) Removing the table of programs and clarifying that the
requirements apply to State-administered formula grant programs
administered by an SEA in which the SEA makes subgrants.
(2) Clarifying that an applicant must include a citation to the
alleged violation of a Federal or State statute, rule, regulation, or
guideline governing the applicable program and a brief description of
the alleged violation when it requests that the SEA hold a hearing on
the application disapproval.
(3) Requiring a notice of appeal to the Secretary submitted
pursuant to section 432(b) of GEPA to include, at a minimum, a citation
to the specific Federal statute, rule, regulation, or guideline that an
SEA allegedly violated and a brief description of the alleged
violation.
(4) Deleting an opportunity for a hearing if an SEA fails to
provide funds in amounts required by statutes and regulations because
Sec. 76.401 applies only to disapproval of an application for a
subgrant. Rather, the requirement that an SEA hold a hearing, upon
request of a subgrantee, when the SEA fails to provide funds in
accordance with applicable statutes and regulations would be added to
Sec. 76.783(a)(3), which describes other circumstances in which a
subgrantee may request that an SEA hold a hearing that meets the
procedural requirements in Sec. 76.401.
(5) Making numerous other changes to eliminate duplicate
provisions.
Reasons: For several reasons, described below, we propose to
clarify that a notice of appeal to the Secretary must cite the specific
Federal statute, rule, regulation, or guideline the appellant believes
the SEA's final decision violates and provide a brief description of
the alleged violation. For the same reasons, we are also proposing to
clarify that an applicant's request to an SEA for a hearing must
provide a brief description of the alleged violation of Federal or
State statute, rule, regulation, or guideline governing the applicable
program.
Section 432 of GEPA affords a subgrantee that is aggrieved by the
final action of an SEA in disapproving or failing to approve its
application for funds the right to request that the SEA conduct a
hearing and, upon receiving an adverse final decision, to appeal the
SEA's decision to the Secretary. This section applies only to SEAs. In
some programs, the authorizing statute may require that a particular
State agency be the sole State agency to administer the approved State
plan, such as the Independent Living Services for Older Individuals Who
are Blind program in section 752(a)(2) of the Rehabilitation Act of
1973 (29 U.S.C. 796k(a)(2)). This program requires that the sole State
agency to administer the approved State plan be the State Vocational
Rehabilitation Services agency that provides services to individuals
who are blind in the State. Even if that State agency is located within
an SEA, if it is the other State agency designated by statute that is
the only agency authorized to take the final action in disapproving or
failing to approve a subgrantee's application for funds, then it is not
the SEA that is taking the final action within the meaning of Sec.
76.401, and this section does not apply to that program.
These due process protections contemplate that an SEA has violated
a Federal or State statute, rule, regulation, or guideline governing
the applicable program. Clarifying that a notice of appeal to the
Secretary must cite the specific Federal statute, rule, regulation, or
guideline that the SEA allegedly violated will help to ensure that an
appeal subject to GEPA and the procedures described in Sec. 76.401 is
about a violation of Federal law, consistent with GEPA, and not solely
a disagreement with the SEA's substantive decision. The GEPA appeal
rights apply only when an SEA allegedly violates Federal law and, so,
it follows that a GEPA appeal must, at a minimum, allege such a
violation.
In the past few years, the Department received numerous GEPA
appeals that were without merit; these appeals often came from
applicants whose applications were not selected for funding pursuant to
a discretionary subgrant competition. In a large portion of these
appeals, the primary argument that the appellant made was that it
disagreed with the SEA's assessment of its application. This argument
is insufficient as a matter of law in a GEPA appeal because it does not
allege that the SEA's final decision was contrary to Federal laws,
rules, regulations, or guidelines. Even so, currently, when such an
appeal is filed, the appeal is fully briefed, reviewed, and adjudicated
before the Secretary issues a final decision denying the appeal,
thereby tying up SEA and Department resources for an extended period.
Under our proposed revisions to Sec. 76.401(d)(3), the Secretary
would be able to dismiss an appeal immediately upon receipt of a notice
of appeal if it is apparent on the face of the notice that it fails to
allege a violation of Federal statutes, rules, regulations, or
guidelines governing the applicable program. The Secretary would, as a
matter of practice, prior to dismissing a GEPA appeal, first request
that the appellant show cause for why the appeal should not be
dismissed and permit the appellant to revise its notice of appeal to
include the specific Federal statute, rule, regulation, or guideline
the appellant alleges the SEA violated. By asking that the appellant
show cause prior to dismissing the appeal, the Secretary would not
cause undue harm to appellants unrepresented by legal counsel who
submit their appeals on their own behalf and might have omitted the
specific Federal statute, rule, regulation, or guideline the appellant
alleges the SEA violated from the initial version of the appeal. Absent
the appellant's ability to show cause, however, the appeal would be
dismissed, thereby limiting GEPA appeals to those that fall under the
Secretary's authority under section 432 of GEPA: those that allege a
violation of Federal law, rule, regulation, or guideline governing the
applicable program.
The proposed regulations would also make changes to clarify,
streamline, and delete duplicative information. For example, current
Sec. 76.401 includes a table of programs to which the section applies.
Some programs listed no longer exist. Other programs have been renamed
under a reauthorized statute. Rather than update the table of programs,
which may become outdated, we believe that clarifying that the
procedures described in the section apply only to an applicant that is
aggrieved by the final action of an SEA with respect to disapproving or
failing to approve its application for funds under a State-administered
formula grant program ensures that, over the long term, the text does
not become outdated. Additionally, we propose to move the requirements
with respect to a subgrantee's allegation that an SEA failed to provide
funds in amounts in accordance with the requirements of applicable
statutes and regulations to Sec. 76.783(a)(3). Section 76.401 is about
disapproval of an application, and it is, therefore, more logical to
include the ``failing to provide funds'' provision in Sec. 76.783,
which describes other circumstances in section 432 of GEPA in which a
subgrantee may request a hearing and, ultimately, appeal to the
Secretary. This does not change the procedural requirements that apply
when a subgrantee alleges that an SEA failed to provide funds in
amounts prescribed by law.
The other changes in proposed Sec. 76.401 are for consistency and
clarity.
[[Page 1997]]
Section 76.560-76.569 Indirect Cost Rates
Current Regulation: Sections 76.560-76.569 describe the application
of indirect costs under State-administered formula grant programs,
including who approves indirect costs rates and how they are applied.
Proposed Regulation: The Uniform Guidance, in conjunction with
EDGAR, governs Department grants and, therefore, these provisions
should be closely aligned with one another. The proposed revisions
would align these sections of EDGAR with the Uniform Guidance, include
cost allocation plans along with indirect costs rates, and provide
clarity on the application of indirect cost rates, as well as the
addition of Sec. 76.562, specific to reimbursement of indirect costs.
Reasons: These sections of EDGAR currently do not reflect updates
to the Uniform Guidance, including the addition of the de minimis rate,
referencing cost allocation plans as performing a role equivalent to
indirect costs rate, and clarifications on restricted rates and this
alignment is necessary to ensure that there is no confusion about these
requirements. Moreover, the proposed changes are intended to add
clarity to how indirect cost rates are applied, the indirect cost rate
options an entity has, and reimbursement of indirect costs.
Section 76.600 Where To Find Construction Regulations
Current Regulations: Section 76.600 provides section references to
the EDGAR regulations on construction.
Propose Regulation: We propose to amend certain regulations related
to construction projects and real property acquisition in parts 75, 76,
and 77. Specifically for Sec. 76.600, the proposed regulations would
update citations to align with the proposed revision in part 75.
Reasons: The purpose of these proposed changes is to update the
current regulations in response to statutory changes and related issues
that have arisen, as many of the regulations for this section have not
been updated since 1992; to better align the regulations to the Uniform
Guidance; and to improve clarity and transparency regarding Federal
program operations. The proposed changes would also update the
citations to the regulations on construction in part 75 and set out the
State's responsibilities when approving construction projects.
Section 76.650-76.662 Participation of Students Enrolled in Private
Schools
Current Regulation: Sections 76.650-76.662 include general
requirements applicable to State-administered formula grant programs
that require a grantee or subgrantee to provide for participation by
students enrolled in private schools.
Proposed Regulation: We propose to amend section 76.650 and remove
Sec. Sec. 76.651-76.662. As a result, we also propose updates to Sec.
75.119, which cross-references Sec. 76.656, and Sec. 75.650, which
cross-references Sec. Sec. 76.650-76.662. In addition, we propose to
delete Sec. 299.6(c), which provides that Sec. Sec. 76.650-76.662 do
not apply to the programs covered under Sec. 299.6(b).
Reasons: Sections 76.650-76.662 are currently unchanged since they
were issued in 1980. Since then, applicable statutory requirements have
changed, and the Department has issued program-specific regulations
regarding the provision of services to private school children,
teachers and other educational personnel, and families. These include
the following regulations: (1) 34 CFR 200.62-200.68, applicable to the
provision of equitable services under part A of Title I of the ESEA;
(2) Sec. Sec. 299.6-299.10, applicable to equitable services for
programs subject to the requirements in section 8501 of the ESEA; and
(3) 34 CFR 300.130-300.144, applicable to equitable services under part
B of the Individuals with Disabilities Education Act (IDEA). Therefore,
we propose to remove Sec. Sec. 76.651-76.662 because they are
unnecessary, redundant, and, in some instances, inconsistent with
current law. We propose to amend Sec. 76.650 to reference Sec. Sec.
299.7-299.11 to cover any State-administered formula grant program that
requires the provision of services to private school children, teachers
and other educational personnel, and families and that is not otherwise
governed by applicable regulations. We believe that this approach would
ensure greater alignment across programs and reduce the potential for
confusion. These proposed changes are for clarity and would not
substantively affect the services and assistance available to private
school students, educators, or families.
Section 76.665 Providing Equitable Services to Students and Teachers in
Non-Public Schools
Current Regulation: Section 76.665 applies to providing equitable
services to children and teachers in non-public schools under the CARES
Act. It was necessary because equitable services under the CARES Act
were not governed by the provisions in part 299.
Proposed Regulation: We propose to delete Sec. 76.665.
Reasons: Section 76.665 is no longer needed because funds under the
CARES Act are no longer available for obligation. Moreover, the
regulations on determining the proportional share under Sec. 76.665(b)
have been invalidated by several United States district courts (see,
e.g., Michigan v. DeVos, 481 F.Supp.3d 984 (N.D. Cal. 2020) and
Washington v. DeVos, 481 F.Supp.3d 1184 (W.D. Wash. 2020)).
Sections 76.670-76.677 Procedures for Bypass
Current Regulation: Sections 76.670-76.677 establish procedural
requirements applicable to programs under which the Secretary is
authorized to waive requirements for providing services to private
school children and implement a bypass under which the Department
assumes responsibility for providing those services.
Proposed Regulation: We propose to remove Sec. Sec. 76.670-76.677
and add Sec. Sec. 299.18-299.28 in a new subpart G of part 299 and
amend the requirements to reflect statutory changes.
Reasons: Currently, the Secretary is authorized to implement a
bypass only under ESEA State-administered formula grant programs and
part B of the IDEA. With respect to part B of the IDEA, the Department
has established program-specific regulations applicable to a bypass.
Because the current bypass regulations in Sec. Sec. 76.670-76.677
apply only to applicable ESEA State-administered formula grant
programs, it is appropriate to remove these requirements from part 76,
which applies to more than the ESEA, and add similar provisions as
Sec. Sec. 299.18-299.28 of part 299, which establishes uniform
administrative rules for ESEA programs. We describe Sec. Sec. 299.18-
299.28 elsewhere in this document.
Section 76.783 State Educational Agency Action--Subgrantee's
Opportunity for a Hearing
Current Regulation: Section 76.783 requires an SEA to provide a
subgrantee an opportunity for a hearing under certain circumstances.
With respect to an SEA, the regulation cross-references Sec. 76.401,
which restates the requirements from section 432 of GEPA, including the
due process an SEA must provide to subgrantees if the SEA either: (1)
orders the repayment of misspent or misapplied Federal funds; or (2)
terminates further assistance for an approved project.
[[Page 1998]]
Proposed Regulation: The proposed regulation would add to Sec.
76.783 the requirement currently in Sec. 76.401 that an SEA hold a
hearing, upon request of a subgrantee, when the SEA fails to provide
funds in amounts in accordance with the requirements of statutes,
rules, regulations, or guidelines.
Reasons: The proposed regulation would move the requirements with
respect to a subgrantee's allegation that an SEA failed to provide
funds in amounts in accordance with the requirements of statutes,
rules, regulations, and guidelines from Sec. 76.401 to Sec. 76.783.
Section 76.401 is about disapproval of an application, and it is,
therefore, more logical to include the ``failing to provide funds''
provision in Sec. 76.783, which describes other circumstances under
section 432 of GEPA in which a subgrantee of an SEA may request a
hearing and, ultimately, appeal to the Secretary. This provision does
not change the procedural requirements that apply when an SEA is
alleged to have failed to provide funds in amounts prescribed by law;
rather, it moves the requirement to a more relevant section of this
part.
Part 77 Definitions That Apply to Department Regulations
Section 77.1 Definitions That Apply to All Department Programs
Current Regulation: Section 77.1 includes a number of definitions,
including a definition of ``direct grant program,'' which is referred
to in Sec. 75.1. The regulation also includes definitions of
``Director of the Institute of Museum Services,'' ``Director of the
National Institute of Education,'' and ``State,'' definitions related
to evidence, and definitions about the scope of a project. The current
definition of ``evidence-based'' applies to both direct grant programs
administered under part 75 and State-administered formula grant
programs administered under part 76. These definitions support the
various sections in EDGAR and are used by the Department in NIAs where
relevant to the specific grant competition.
Proposed Regulation: We propose to remove the definitions of
``direct grant program'' and ``Director of the Institute of Museum
Services.'' In addition, we propose technical updates to the following
definitions: ``demonstrates a rationale,'' ``Director of the National
Institute of Education,'' and ``evidence-based.'' Specifically, we
propose limiting the definition of ``evidence-based'' to only direct
grant programs administered under part 75, to align with the
interpretation that underlying authorizing statutes are the source for
the definition of ``evidence-based'' for formula grant programs. We
propose technical updates to the cross-references in section 77.1(b) as
a result of changes to the Uniform Guidance. We propose additional
updates to the definitions of ``moderate evidence,'' ``national
level,'' ``performance period,'' ``promising evidence,'' ``regional
level'', ``strong evidence,'' and ``What Works Clearinghouse
Handbooks.'' We propose to add definitions of ``construction,''
``evaluation,'' ``evidence-building,'' ``independent evaluation,'' and
``minor remodeling,'' ``peer-reviewed scholarly publication,'' and
``quality data.''
Reasons:
Definitions of Direct Grant Program and Director of the National
Institute of Education
We propose to remove the definition of ``direct grant program,''
because it applies only to part 75 and the proposed regulations would
define it in Sec. 75.1. Although a technical change, we propose to
replace the definition of ``Director of the National Institute of
Education'' with a definition of ``Director of the Institute of
Education Sciences'' due to a statutory change in the name of that
position, enacted in 2002.
Definitions of National Level and Regional Level
We propose revising the definitions of ``national level'' and
``regional level'' to replace the phrase ``process, product, strategy,
or practice'' in these two definitions with the term ``project
component'' because ``project component'' is already defined and would
provide more clarity.
Definition of Project Period
We propose clarifying, in the definition of ``performance period,''
that the ``period during which funds can be obligated'' is specific to
grantees and not the Department.
Evidence-Related Definitions
We propose expanding the definitions of ``moderate evidence,''
``promising evidence,'' and ``strong evidence,'' and the references to
evidence levels for practice guides, effectiveness ratings for
intervention reports, studies and samples in intervention reports to
correspond with the designations on the What Works Clearinghouse
website and in Version 5.0 of the What Works Clearinghouse Handbooks.
We also propose to update the definition of ``What Works Clearinghouse
Handbooks'' to incorporate by reference these updated standards.
Additionally, we propose to modify the definition of ``moderate
evidence'' to allow, for example, high-quality studies of low-incidence
populations to meet the standard in the context of a systematic review.
The new definition of ``construction'' would give meaning to a term
used in multiple sections in parts 75 and 76, and is meant to add
clarity, as well as the proposed definition of ``minor remodeling''
that is meant to help distinguish it from construction. The new
definition of ``evaluation,'' a term used in various sections and
especially in Sec. 75.210, would clarify and provide a shared
understanding of what is meant when this term is used. The new
definition of ``evidence-building,'' a term used in Sec. 75.210, would
support the Department's efforts to ensure learning from funded grants
where rigorous evaluation is not appropriate but feedback and
continuous improvement efforts are better suited. The new definition of
``quality data,'' as referenced in section 515 of the Treasury and
General Government Appropriations Act, 2001 (Appendix C of Public Law
106-554) (commonly known as the ``Information Quality Act'') and
further defined in the Department's Information Quality Act Guidelines
(<a href="http://www2.ed.gov/policy/gen/guid/iq/iqg.html">www2.ed.gov/policy/gen/guid/iq/iqg.html</a>), would support the
Department's ongoing effort to improve the data that the Department
receives from applicants and grantees by ensuring data encompass
utility, objectivity, and integrity of the information. The new
definition of ``independent evaluation,'' a term used in Sec. 75.590,
would support the Department's ongoing effort to increase the quality
and credibility of the project evaluations supported by competitive
grant programs through evaluations conducted independently from project
developers and implementers. As discussed in greater detail in the
section regarding Sec. Sec. 76.125-76.137, the revised definition of
``State'' would remove the reference to the Trust Territory of the
Pacific Islands. The revisions to the other definitions listed above
would clarify the regulations and align with statutory language.
Definition of Evidence-Based
State-administered formula grant programs administered under part
76 have their own statutory definitions of ``evidence-based'' and
limiting the scope of this definition to part 75 will help ensure that
the regulatory and statutory definitions of ``evidence-based'' do not
conflict.
[[Page 1999]]
Definitions of Construction and Minor Remodeling
We propose adding a definition of ``construction'' and revising the
definition of ``minor remodeling'' under Sec. 77.1(c). This proposed
definition of ``construction'' is modeled after the definition of
``construction'' in the Impact Aid program regulations (34 CFR
222.176(a) ``Construction''). The Department has found that it is
important to define ``construction'' to distinguish construction
activity from ``minor remodeling'', a term already defined in Sec.
77.1(c), as there has been confusion about what activities are
considered construction, and which are considered minor remodeling. We
propose to revise the term ``minor remodeling'' to more clearly
indicate that minor remodeling is not considered ``construction'' under
the proposed definition.
Definition of Peer-Reviewed Scholarly Publication
We propose adding a definition of ``peer-reviewed scholarly
publication'' to support the use of this term in Sec. 75.620. This
definition is intended to clarify that research is made available in a
variety of formats, and that research funded by the Department that is
submitted for publication in scholarly publications should also be made
available for free by submission to ERIC.
34 CFR Part 79--Intergovernmental Review of Department of Education
Programs and Activities
Section 79.1-79.8 Intergovernmental Review
Current Regulation: Part 79 discusses the requirements related to
intergovernmental review of Department programs and activities.
Proposed Regulation: We propose to remove from Sec. Sec. 79.1,
79.3, 79.4, and 79.8 references to Section 401 of the Intergovernmental
Cooperation Act of 1968 and Section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966, which are outdated.
Reasons: Section 401 of the Intergovernmental Cooperation Act of
1968 and Section 204 of the Demonstration Cities and Metropolitan
Development Act of 1966 are outdated, and we therefore propose to
remove them from these sections.
34 CFR Part 299--General Provisions
Section 299.7
Current Regulation: None.
Proposed Regulation: We propose to add a new Sec. 299.7 to
incorporate the requirements in ESEA section 8501 for consultation with
private school officials for programs that require the provision of
equitable services to private school children, teachers, and other
educational personnel.
Reasons: This section would reflect the requirements for
consultation with private school officials for programs that require
the provision of equitable services to private school children,
teachers, and other educational personnel. The addition of a section on
consultation is consistent with the current regulations on Title I
equitable services in Sec. 200.63. This section would also clarify the
requirements in section 8501(c)(1)(H) of the ESEA, which reference the
number of children from low-income families in a participating public
school attendance area who attend private schools. This language is the
same as a similar provision in section 1117(b)(1)(J) of the ESEA, which
applies to equitable services under Title I, part A, but is not
applicable to equitable services under other covered programs because
participation in equitable services under these other programs is not
limited to children from low-income families who live in a Title I
participating public school attendance area.
34 CFR Part 299--General Provisions
Section 299.8
Current Regulation: Section 76.660, which elsewhere in this
document we propose to remove, contains information about the context
in which a subgrantee may use program funds to pay for the services of
an employee of a private school.
Proposed Regulation: We propose to add a new Sec. 299.8 to
incorporate the information articulated in Sec. 76.660, which we
propose elsewhere in this document to remove. Proposed Sec. 299.8
would note that, in providing for the participation of students in
private schools, a grantee or subgrantee may use program funds to pay a
private school employee if the employee performs services outside of
his or her regular hours of duty and under public supervision and
control. While Sec. 76.660 refers only to subgrantees, the proposed
Sec. 299.8 would also clarify that a grantee, in addition to a
subgrantee, may pay for services of private school personnel if the
relevant conditions are met.
Reasons: Incorporating this provision in part 299 would consolidate
regulations related to the participation of private school students and
teachers in part 299 and clarify that the same approach applies whether
a grantee or subgrantee is providing services to students enrolled in
private schools.
Section 299.16 What must an SEA include in its written resolution of a
complaint?
Current Regulation: None.
Proposed Regulation: We propose to add a new Sec. 299.16 to
require that an SEA's written resolution of a complaint from an
organization or individual alleging violation of a Federal statute or
regulation that applies to an applicable program include specific
elements.
Reasons: This section would add clarity regarding the contents of
an SEA's written resolution of a complaint to help ensure that the
resolution includes relevant information and is clear, concise, and
understandable to the parties involved. This would also help facilitate
the Department's timely review and resolution of any appeal of an SEA's
written resolution of a complaint, particularly within the context of
equitable services appeals that require the Department to investigate
and resolve an appeal within 90 days of receipt.
Section 299.17 What must a party seeking to appeal an SEA's written
resolution of a complaint include in its appeal request?
Current Regulation: None.
Proposed Regulation: We propose to add a new Sec. 299.17 to
require that certain elements be included in a party's appeal of an
SEA's written resolution of a complaint.
Reasons: This section would clarify what must be included in an
appeal in order to facilitate the Department's timely review and
resolution of the appeal, particularly within the context of equitable
services appeals that require the Department to investigate and resolve
an appeal within 90 days of receipt.
Section 299.18 When are bypass provisions applicable?
Current Regulation: None.
Proposed Regulation: We propose to add a new Sec. 299.18, which
would incorporate part of current Sec. 76.670(a), which elsewhere in
this document we propose to remove. Section 299.18 would clarify those
applicable ESEA programs under which the Secretary is authorized to
waive the requirements for providing equitable services to private
school children, teachers, and other educational personnel (hereafter,
for ease of reference, ``private school children'') and implement a
bypass.
Reasons: Because current Sec. 76.670(a) applies only to ESEA
programs under which the Secretary is authorized to waive the
requirements for providing equitable services to private school
[[Page 2000]]
children and implement a bypass, we propose to move this section to a
new subpart G of part 299, which would contain other requirements
regarding the provision of equitable services to private school
children. Proposed Sec. 299.18 would delete the list of applicable
programs contained in current Sec. 76.670(a) because that list is out
of date.
Section 299.19 Bypass--General
Current Regulation: None.
Proposed Regulation: Proposed Sec. 299.19 would state the
statutory standards that authorize the Secretary to implement a bypass.
Reasons: We propose to add Sec. 299.19 to clarify the
circumstances in which the Secretary is authorized to waive the
requirements for providing equitable services to private school
children and implement a bypass.
Section 299.20 How To Request a Bypass
Current Regulation: None.
Proposed Regulation: Proposed Sec. 299.20 would clarify the
circumstances in which a private school official or an agency,
consortium, or entity, as applicable, may request a bypass.
Reasons: Sections 1117(b)(6)(C) and 8501(c)(6)(C) of the ESEA
contain provisions added by the Every Student Succeeds Act that require
an SEA to provide equitable services directly or through a contract
with a public or private agency, organization, or institution if an
appropriate private school official has requested that the SEA provide
those services and demonstrated that an agency, consortium, or entity
has not met the requirements of section 1117 or 8501, as applicable. If
an SEA determines that it is appropriate to provide equitable services
itself, a bypass request to the Secretary would be unnecessary.
Accordingly, proposed Sec. 299.20(a) would clarify that an appropriate
private school official may request a bypass from the Secretary if an
SEA declines to provide equitable services itself following a private
school official's request or if the failure to provide equitable
services is by an SEA. Proposed Sec. 299.20(b) would clarify that such
a request may also be made if an agency, consortium, or entity is
prohibited by law from providing equitable services.
Section 299.21 Notice of Intent To Implement a Bypass
Current Regulation: Section 76.671 contains notice procedures that
the Secretary uses prior to implementing a bypass, which elsewhere in
this document we propose to remove.
Proposed Regulation: Proposed Sec. 299.21 contains notice
provisions essentially identical to those in current Sec. 76.671, with
a few edits to conform language to section 8504 of the ESEA.
Reasons: We propose to remove current Sec. 76.671 and include its
substance in proposed Sec. 299.21 in new Subpart G of part 299, which
contains other provisions regarding the provision of equitable services
to private school children.
Section 299.22 Filing Requirements
Current Regulation: Section 76.670(b) contains filing requirements
to request that the Secretary implement a bypass, which elsewhere in
this document we propose to remove.
Proposed Regulation: Proposed Sec. 299.22 contains filing
requirements similar to those in current Sec. 76.670(b).
Reasons: We propose to remove current Sec. 76.670(b) and include
its substance in proposed Sec. 299.22 in new Subpart G of part 299,
with changes to replace references to facsimile transmission with
references to electronic mail.
Sections 299.23 Through 299.28 Bypass Determination Process
Current Regulation: Sections 76.672-76.677, which elsewhere in this
document we propose to remove, contain procedures for implementing a
bypass.
Proposed Regulation: Proposed Sec. Sec. 299.23-299.28 are
essentially identical to Sec. Sec. 76.672-76.677, with a few edits to
conform to section 8504 of the ESEA.
Reasons: We propose to remove current Sec. Sec. 76.672-76.677 and
include their substance, with minor edits, in proposed Sec. Sec.
299.23-299.28 in new subpart G of part 299, which contains other
regulations regarding the provision of equitable services to private
school children.
Executive Orders 12866, 13563, and 14094
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) must determine whether this regulatory action is ``significant''
and, therefore, subject to the requirements of the Executive order and
subject to review by OMB. Section 3(f) of Executive Order 12866, as
amended by Executive Order 14094, defines a ``significant regulatory
action'' as an action likely to result in a rule that may--
(1) Have an annual effect on the economy of $200 million or more
(as of 2022 but adjusted every 3 years by the Administrator of the
Office of Information and Regulatory Affairs (OIRA) of OMB for changes
in gross domestic product), 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, territorial, or
Tribal governments;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise legal or policy issues for which centralized review would
meaningfully further the President's priorities, or the principles
stated in the Executive order, as specifically authorized in a timely
manner by the Administrator of OIRA in each case.
This proposed regulatory action is a significant regulatory action
subject to review by OMB under section 3(f)(4) of Executive Order
12866, as amended by Executive Order 14094. Notwithstanding this
determination, we have assessed the potential costs and benefits, both
quantitative and qualitative, of this proposed regulatory action and
have determined that the benefits would justify the costs.
We have also reviewed these proposed regulations under Executive
Order 13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
[[Page 2001]]
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' OIRA has emphasized
that these techniques may include ``identifying changing future
compliance costs that might result from technological innovation or
anticipated behavioral changes.''
We are issuing these proposed regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on an analysis of anticipated costs
and benefits, we believe that these proposed regulations are consistent
with the principles in Executive Order 13563.
We also have determined that this regulatory action would not
unduly interfere with State, local, and Tribal governments in the
exercise of their governmental functions.
Potential Costs and Benefits
We have reviewed the changes proposed in this NPRM in accordance
with Executive Order 12866, as amended by Executive Order 14094, and do
not believe that these changes would generate a considerable increase
in burden. In total, we estimate that the proposed changes in this NPRM
would result in a net decrease in burden of approximately $4,000 with
transfers of between $109.7 and $113.8 million. Most of the changes
proposed in this NPRM are technical in nature and are unlikely to
affect the administration of programs or allocation of benefits in any
substantial way. However, given the large number of edits proposed
herein, we discuss each provision, other than those for which we are
updating citations or cross-references and making other technical
edits, and its likely costs and benefits in turn below.
Proposed changes to Sec. Sec. 75.1 and 75.200 would simply combine
currently existing text into a single section and clarify terms used.
We do not expect that these changes will have any quantifiable cost,
and it may benefit the Department and general public by improving the
clarity of the regulations.
The proposed deletion of Sec. 75.4 as unnecessary and redundant is
unlikely to generate any quantifiable cost and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.60, which would delete an outdated
table and clarify a definition, are unlikely to generate any
quantifiable cost and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.101 are unlikely to generate any
meaningful cost and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. Sec. 75.102 and 75.104, which would move
paragraph (b) of Sec. 75.102 to Sec. 75.104, are unlikely to generate
any quantifiable costs and may benefit the Department and general
public by improving the clarity of the regulations.
Proposed changes to Sec. 75.105, which add reference to an already
existing exemption to the public comment period to the regulations, are
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.109, which would eliminate the
requirement that an applicant submit two copies of any paper
applications in addition to the original, may reduce costs for
applicants that submit paper applications. However, those savings are
likely to be minimal, given the small incremental cost of photocopies
and the low number of paper applications the Department receives in any
year. At most, we estimate that it would save applicants $7.50 per
application, assuming a 75-page application photocopied at a rate of
$0.05 per page. Assuming an average of 50 paper applications submitted
per year, this change would result in an annual savings of
approximately $375.
Proposed changes to Sec. 75.110, which would more clearly specify
how applicants must report against program measures and project-
specific performance measures, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.112, which would allow the Secretary
to require applicants to submit a logic model, are unlikely to generate
any quantifiable costs or benefits. Many grant competitions already
include this requirement and, to the extent that it is included in
additional competitions in the future, we do not believe that it would
create a substantial burden for applicants, because we assume that
applicants in those programs would likely already have conceptualized
an implicit logic model for their applications and, therefore, would
experience only minimal paperwork burden associated with memorializing
it in their applications.
Proposed changes to Sec. 75.127, which would add the term
``partnership'' and clarify that all members of a group application
must be eligible entities, are unlikely to generate any quantifiable
costs and may benefit the Department and general public by improving
the clarity of the regulations.
The proposed deletion of Sec. Sec. 75.190-75.192 as duplicative is
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.201, which refer to selection
``factors,'' as well as ``criteria'' are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.210, which would clarify word choice
and make updates to language based on past experience in using the
current selection criteria and factors, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.216, which would remove paragraphs (a)
and (d) and revise the section heading, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations and providing the Department
additional flexibility in considering applications.
Proposed changes to Sec. 75.217, which would remove the word
``solely'' and add ``and any competitive preference points,'' are
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.219, which would reorganize the
section to improve clarity, are unlikely to generate any quantifiable
costs and may benefit the Department and general public by improving
the clarity of the regulations.
Proposed changes to Sec. 75.221, which would revise the section to
improve clarity and remove unnecessary language, are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 75.222, which would update the mailing
address for unsolicited applications, are unlikely to generate any
quantifiable costs and may benefit the Department and general
[[Page 2002]]
public by improving the clarity of the regulations.
The proposed change to Sec. 75.225 would change the current term
``novice applicant'' to ``new potential grantee'' and revise the
definition to provide greater flexibility to the Department in
classifying applicants as ``new potential grantees.'' We believe that
this proposed regulation may result in a number of changes in the
behavior of both Department staff and applicants. First, we believe
that the additional flexibility in the new definition will increase the
number of competitions in which Sec. 75.225 is used. Second, we
believe that it may result in additional applicants submitting
applications for competitions in which Sec. 75.225 is used. Finally,
we believe that the additional applicants, in conjunction with any
absolute or competitive preference associated with the revised section,
may shift at least some of the Department's grants among eligible
entities. However, because this revised standard would neither expand
nor restrict the universe of eligible entities for any Department grant
program, and since application submission and participation in our
discretionary grant programs is completely voluntary, we do not think
that it would be appropriate to characterize any increased
participation in our grant competitions as costs associated with this
regulation.
Proposed changes to Sec. 75.226, which would provide the Secretary
with the authority to give special consideration to an application that
demonstrates a rationale, are unlikely to generate any quantifiable
costs or benefits. Many grant competitions already ask applicants to
discuss the extent to which they can demonstrate a rationale for their
proposed projects through a selection factor and, to the extent that it
is included in additional competitions in the future, we do not believe
that it would create a substantial burden for applicants, because we
assume that applicants in those programs would likely already have
conceptualized an implicit logic model for their applications and
would, therefore, experience only minimal paperwork burden associated
with memorializing it in their applications.
Proposed changes to Sec. 75.227 would give the Secretary the
authority to give special consideration to rural applicants. The
proposed language in this section mirrors language adopted by the
Department in the Administrative Priorities. As such, these proposed
changes will not generate any quantifiable costs and may benefit the
Department and general public by improving the clarity and transparency
of the Department's authority to provide special consideration to
particular applicants.
Proposed changes to Sec. 75.234, which would replace the word
``special'' with the word ``specific,'' are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.250, which would update the heading
and would clarify that an extension of the project period is authorized
by EDGAR only if the applicable statutes and regulations permit it, are
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.253, which would allow a grantee whose
request for a non-competitive continuation award has been denied to
request reconsideration, could generate costs to affected grantees and
the Department. In general, we do not deny a large number of non-
competing continuation awards and, if that does happen, grantees are
often aware of the likelihood of the decision well in advance and often
cite no concerns if they do not receive a continuation award.
Therefore, we do not believe that many grantees would qualify for the
redress, and we do not believe that the few who may qualify would
exercise the right. However, for the purpose of this analysis, we
assume that we would process 10 such requests annually--which we
believe is an overestimate of the likely incidence. For each request,
we assume a project director earning $106.76 per hour, on average,
would spend 24 hours drafting and submitting the request. At the
Department, a program officer at the GS-13/1 level ($61.96 per hour)
would spend approximately 8 hours reviewing each request, along with 2
hours for their supervisor at the GS-14/1 level ($72.69 per hour) to
review. We also assume that a Department attorney ($72.69 per hour)
would spend approximately 4 hours reviewing each request. In sum, we
estimate that this provision would generate an additional cost of
approximately $25,622 for grantees and $9,320 for the Department per
year.
The proposed addition of a new Sec. 75.254 would give the
Secretary the authority to approve data collection periods. The
proposed language in this section is aligned with this previous
authority under Sec. 75.250(b) as well the Administrative Priorities.
As such, these proposed changes will not generate any quantifiable
costs and may benefit the Department and general public by allowing for
data collection periods that give grantees additional time to
collection data to measure project impact.
Proposed changes to Sec. 75.261, which would remove references to
obsolete programs and make other edits, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.263, which would remove the clause
``notwithstanding any requirement in 2 CFR part 200,'' are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. Sec. 75.560-75.564, which align these
sections with the Uniform Guidance and provide additional information
on the application of indirect cost rates, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 75.590, which would allow the Department
to require the use of an independent evaluation in a program, would
likely generate transfers for affected grantees. Specifically, we
assume that grantees that are required to use an independent evaluator
will transfer grant funds from their currently designated purpose (such
as to defray the costs of an internal evaluation) to pay for an
independent evaluation. We note, however, that we do not believe that
these transfers would substantially affect the level of support that
beneficiaries of our competitive grant programs receive; the grantees
would have spent a certain percentage of their awards on evaluation,
whether such evaluation is conducted by an internal or external entity.
We believe that the most likely programs in which the Department would
require an independent evaluation are those that include an expectation
of a rigorous evaluation using selection factors related to What Works
Clearinghouse evidence standards in project evaluations. From 2014
through 2022, we included such selection factors in 18 competitions
(excluding programs that have their own independent evaluation
requirements, such as Education Innovation and Research and its
predecessor, Investing in Innovation, because these programs are
already included in the baseline), with a combined average of $194.8
million in awards per year. Assuming that evaluation costs in these
programs average approximately 15 percent of total project costs, we
estimate that the evaluations for these competitions would cost
approximately $29,227,000
[[Page 2003]]
per year. Assuming equal-sized cohorts of new grants per year, we
estimate that this total would increase through Year 5, when it would
plateau at $146,135,000 per year. To the extent that grantees already
use evaluators that would meet the requirements for an independent
evaluation, this would represent an overestimate of the transfers
associated with this provision.
Proposed changes to Sec. 75.591, which clarify how grantees
cooperate with Federal research activities, are unlikely to generate
any quantifiable costs and may benefit the Department and general
public by improving the clarity of the regulations.
Proposed changes to Sec. Sec. 75.600-75.615 and Sec. Sec. 75.618-
75.619 would restructure the sections on construction to improve the
flow of the information, as well as update citations, are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 75.620, which would update language
regarding Federal endorsement, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
The proposed addition of Sec. 75.623 would require certain
grantees to submit final versions of Department-funded research
publications to ERIC so that they are publicly available. Given that
submission of the files would be a required grant activity, we do not
anticipate that the requirement generating any additional costs for
grantees. To the extent that submission did generate additional
burdens, they would likely be minimal and would be properly considered
transfers from support of other grant-related activities. Such
transfers would be de minimis. Further, the addition of this
requirement would generate benefits for the general public by
increasing the availability of publicly supported research.
Proposed changes to Sec. 75.700, which would add Executive orders
to the list of authorities with which grantees must comply, are
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.708, which would allow the Secretary
to provide notice authorizing subgrants through the Federal Register or
another reasonable means, may generate minimal efficiency returns to
the Department by reducing burdens and costs associated with preparing
a notice for publication in the Federal Register. However, we estimate
that staff time to draft and compile these notices will likely remain
unchanged and, therefore, do not estimate any changes in burden
associated with this provision.
Proposed changes to Sec. 75.720 would allow the Secretary to
require grantees to publish their annual performance reports on a
public-facing website. Given that this requirement would apply only to
a subset of discretionary competitive grant programs and participation
in such programs is voluntary, we do not estimate any costs associated
with this proposed change. However, we believe that, to the extent that
the requirement results in a shift in activities by grantees, it is
possible that there would be minimal transfers. We estimate that it
would take a web developer approximately 30 minutes to post a copy of
the grantee's annual performance report on the website. Assuming that a
loaded wage rate is $57.05 per hour for web developers, we estimate
that this requirement could generate approximately $29 per year per
affected grantee. In FY 2020, the Department made approximately 7,700
grants. Assuming this requirement would be used in 20 percent of those
grants, we estimate total transfers of approximately $43,930 per year.
Proposed changes to Sec. 76.1, which would ensure consistent
reference to State-administered formula grant programs, are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 76.50 would clarify that, in the absence
of a statutory or regulatory prohibition against subgranting, or in the
absence of a term and condition in the grant award that would prohibit
subgranting, States, consistent with 2 CFR 200.332, determine whether
to make subgrants. These proposed changes would likely generate cost
savings for States associated with the reduced burden associated with
making subgrants as opposed to contracts. However, we do not have
sufficient information to quantify this impact and we invite public
comment on the cost savings associated with such a shift at the State
level.
Proposed changes to Sec. 76.101, which would clarify the
applicability of section 441 of GEPA, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. 76.102, which would remove a table and
provide a general definition of the term ``State plan,'' are unlikely
to generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 76.103, which would remove extraneous
text and simplify the section, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Proposed changes to Sec. Sec. 76.125-76.137, which would remove
references to the Trust Territory of the Pacific Islands and make other
changes, are unlikely to generate any quantifiable costs and may
benefit the Department and general public by improving the clarity of
the regulations.
Proposed changes to Sec. Sec. 76.140-76.142, which would, among
other things, allow the Secretary to prescribe alternative amendment
processes on a program-by-program basis, could generate benefits for
both States and the Department. The proposed changes would provide the
Secretary broad flexibility in prescribing alternative procedures,
which makes it difficult to assess precisely the specific cost
reductions that would occur. However, we assume that these alternative
procedures would result in a net burden reduction of 2 hours for a
management analyst at the State level and 0.5 hours for an
administrator at the State level for each State plan revision under the
ESEA. We further estimate that likely alternative procedures would
result in a burden reduction of 5 hours for a management analyst and
0.5 hours for a chief executive at the State level for each State plan
revision under the Workforce Innovation and Opportunity Act (WIOA). We
further assume an average of 15 State plan amendments under the ESEA
and 52 State plan amendments under WIOA each year. In total, we
estimate that these alternative procedures would reduce costs for
States by approximately $23,733 per year. We also assume that the
alternative procedures would reduce burden on Federal staff by
approximately 1 hour per State plan amendment for a total Federal
savings of approximately $4,150 per year.
Proposed changes to Sec. 76.301, which would clarify that section
442 of GEPA does not apply to LEA subgrantees, would not generate any
quantifiable costs, and would benefit the Department and the general
public by improving the clarity of the regulations.
Proposed changes to Sec. 76.401, which would clarify that a notice
of appeal must include an allegation of a specific violation of law by
the SEA, are likely to generate benefits for the Department by reducing
the number of appeals that fail to state a claim that we receive and
[[Page 2004]]
process each year. On average, we process approximately 10 appeals each
year, with an attorney spending approximately 30 hours reviewing each
appeal. We estimate that this provision would reduce the number of
appeals the Department receives each year by approximately 20 percent,
resulting in a net savings of 60 hours per year or approximately $5,530
per year. We also believe that this provision would generate cost
savings at the State level, but do not have sufficient information on
the case load at the State level to make a reliable estimate. We invite
public comment on the potential savings at the State level associated
with this proposed change.
Proposed changes to Sec. Sec. 76.560-76.569, which would align
these sections with the Uniform Guidance and provide additional
information on the application of indirect cost rates, are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 76.650 and related sections, which would
revise regulatory references, are unlikely to generate any quantifiable
costs and may benefit the Department and general public by improving
the clarity of the regulations.
The proposed deletion of Sec. 76.655 as unnecessary is unlikely to
generate any quantifiable cost and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 76.783 indicate that a subgrantee may
request a hearing related to a State educational agency's failure to
provide funds in amounts in accordance with the requirements of
applicable statutes and regulations. These proposed changes would not
generate any additional costs, as this circumstance was previously
contemplated in Sec. 76.401, which we are proposing to delete.
Proposed changes to Sec. 77.1(c), which would update existing
definitions, remove unnecessary definitions, and add new definitions,
are unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Proposed changes to part 79, which would remove outdated statutory
references, are unlikely to generate any quantifiable costs and may
benefit the Department and general public by improving the clarity of
the regulations.
Proposed changes to part 299, which would reflect statutory
changes, are unlikely to generate any quantifiable costs and may
benefit the Department and the general public by improving the clarity
of the regulations. The proposed additions of Sec. Sec. 299.16-299.17
would add specificity as to what an SEA's resolution of a complaint
must include and what a party's appeal to the Secretary of an SEA
decision must include. The specific elements named in these sections
are all things that a legal decision or appeal should already include
(such as a description of applicable statutory and regulatory
requirements, legal analysis and conclusions, supporting
documentation). When the Department receives records on appeal that do
not include one or more of these elements, we go back to the parties to
request the missing element(s). Specifying in these sections what we
need to issue a decision would prevent this unnecessary delay; however,
we do not think that the specific elements would generate quantifiable
costs.
Proposed additions of Sec. Sec. 299.18-299.28 regarding the
procedures for a bypass in providing equitable services to eligible
private school children, teachers or other educational personnel, and
families, as applicable, are unlikely to generate any quantifiable
costs and may benefit the Department and the general public by
improving the clarity of the regulations. These sections reflect only
minor updates to information previously contained in Sec. Sec. 76.670-
76.677, which elsewhere we propose to remove.
In total, we estimate that these regulations would result in a net
decrease in costs of approximately $4,014 per year with transfers
ranging from $109.7 million to $113.8 million per year. Of the net
benefit, approximately $3,610 would accrue to grantees. The remaining
approximately $400 in net additional benefits would accrue to the
Department.
As noted above, we do not anticipate any meaningful, quantifiable
impact from the majority of proposed regulatory changes. However, for
those provisions for which we do estimate impacts, we summarize those
impacts below using 3 and 7 percent discount rates, consistent with OMB
Circular A-4:
------------------------------------------------------------------------
3% discount 7% discount
Provision rate rate
------------------------------------------------------------------------
Benefits
-------------------------------
Sec. 75.109--Reduce the number of $375 $375
paper copies of an application to be
submitted..............................
Sec. 76.140-142--Amendments to State 34,940 34,940
Plan...................................
Sec. 76.401--Disapproval of an 10,655 10,655
application............................
-------------------------------
Costs
-------------------------------
Sec. 75.253--Request for ($27,924) ($27,924)
Reconsideration........................
-------------------------------
Transfers
-------------------------------
Sec. 75.590--Independent evaluation... $113,824,837 $109,706,758
Sec. 75.720--Financial and Performance $43,500 $43,500
Reports................................
------------------------------------------------------------------------
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
<bullet> Are the requirements in the proposed regulations clearly
stated?
<bullet> Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
<bullet> Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
<bullet> Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections?
<bullet> Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of
[[Page 2005]]
this preamble be more helpful in making the proposed regulations easier
to understand? If so, how?
<bullet> What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make the
proposed regulations easier to understand, see the instructions in the
ADDRESSES section.
Regulatory Flexibility Act Certification
The Secretary certifies that this proposed regulatory action would
not have a significant economic impact on a substantial number of small
entities. The U.S. Small Business Administration Size Standards define
proprietary institutions as small businesses if they are independently
owned and operated, are not dominant in their field of operation, and
have total annual revenue below $7,000,000. Nonprofit institutions are
defined as small entities if they are independently owned and operated
and not dominant in their field of operation. Public institutions are
defined as small organizations if they are operated by a government
overseeing a population below 50,000.
Of the impacts we estimate accruing to grantees or eligible
entities, all are voluntary and related mostly to an increase in the
number of applications prepared and submitted annually for competitive
grant competitions. Therefore, we do not believe that these regulations
present any significant impact on small entities beyond the potential
for increasing the likelihood of their applying for, and receiving,
competitive grants from the Department.
Paperwork Reduction Act
The proposed regulatory action does not contain any information
collection requirements. However, we do anticipate that the proposed
changes to Sec. Sec. 76.140-76.142 would reduce State burden under
existing information collection requirements by approximately 323.5
hours per year (see the Discussion of Costs, Benefits, and Transfers
for more information on this estimate). The valid OMB control number
for that information collection is 1810-0576.
Intergovernmental Review
These programs are subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for these programs.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or Portable Document Format (PDF). To
use PDF you must have Adobe Acrobat Reader, which is available free at
the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects
34 CFR Part 75
Accounting; Copyright; Education; Grant programs--education;
Incorporation by reference; Indemnity payments; Inventions and patents;
Private schools; Reporting and recordkeeping requirements; Youth
organizations.
34 CFR Part 76
Accounting; Administrative practice and procedure; American Samoa;
Education; Grant programs--education; Guam; Northern Mariana Islands;
Pacific Islands Trust Territory; Prisons; Private schools; Reporting
and recordkeeping requirements; Virgin Islands; Youth organizations.
34 CFR Part 77
Education; Grant programs--education; Incorporation by reference.
34 CFR Part 79
Intergovernmental relations.
34 CFR Part 299
Administrative practice and procedure; Elementary and secondary
education; Grant programs--education; Private schools; Reporting and
recordkeeping requirements.
Miguel A. Cardona,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend parts 75, 76, 77, 79, and 299 of title 34 of the Code of
Federal Regulations as follows:
PART 75--DIRECT GRANT PROGRAMS
0
1. The authority citation for part 75 is revised to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
Section 75.263; 2 CFR 200.308(d)(1).
Section 75.617, 31 U.S.C. 3504, 3505.
Section 75.740 also issued under 20 U.S.C. 1232g and 1232h.
0
2. Revise Sec. 75.1 to read as follows:
Sec. 75.1 Programs to which part 75 applies.
(a) General. (1) The regulations in this part apply to each direct
grant program of the Department of Education, except as specified in
these regulations for direct formula grant programs, as referenced in
paragraph (c)(3) of this section.
(2) The Department administers two kinds of direct grant programs.
A direct grant program is either a discretionary grant program or a
formula grant program other than a State-administered formula grant
program covered by 34 CFR part 76.
(3) If a direct grant program does not have implementing
regulations, the Secretary implements the program under the applicable
statutes and regulations and, to the extent consistent with the
applicable statutes and regulations, under the General Education
Provisions Act and the regulations in this part. With respect to the
Impact Aid Program (Title VII of the Elementary and Secondary Education
Act of 1965), see 34 CFR 222.19 for the limited applicable regulations
in this part.
(b) Discretionary grant programs. A discretionary grant program is
one that permits the Secretary to use discretionary judgment in
selecting applications for funding.
(c) Formula grant programs. (1) A formula grant program is one that
entitles certain applicants to receive grants if they meet the
requirements of the program. Applicants do not compete with each other
for the funds, and each grant is either for a set amount or for an
amount determined under a formula.
(2) The Secretary applies the applicable statutes and regulations
to
[[Page 2006]]
fund projects under a formula grant program.
(3) For specific regulations in this part that apply to the
selection procedures and grant-making processes for direct formula
grant programs, see Sec. Sec. 75.215 and 75.230.
Note 1 to Sec. 75.1: See 34 CFR part 76 for the general
regulations that apply to programs that allocate funds by formula
among eligible States.
Sec. 75.4 [Removed and Reserved]
0
3. Remove and reserve Sec. 75.4.
Sec. 75.50 [Amended]
0
4. Amend Sec. 75.50 in paragraph (a) by removing the words ``the
authorizing statute'' and adding in their place the words ``applicable
statutes and regulations''.
Sec. 75.51 [Amended]
0
5. Amend Sec. 75.51 in paragraph (a) by removing the parenthetical
sentence ``(See the definition of nonprofit in 34 CFR 77.1.)''.
0
6. Revise Sec. 75.60 to read as follows:
Sec. 75.60 Individuals ineligible to receive assistance.
An individual is ineligible to receive a fellowship, scholarship,
or discretionary grant funded by the Department if the individual--
(a) Is not current in repaying a debt or is in default, as that
term is used in 34 CFR part 668, on a debt--
(1) Under a program administered by the Department under which an
individual received a fellowship, scholarship, or loan that they are
obligated to repay; or
(2) To the Federal Government under a nonprocurement transaction;
and
(b) Has not made satisfactory arrangements to repay the debt.
Sec. 75.61 [Amended]
0
7. Amend section 75.61 by:
0
a. In paragraph (a)(2), removing the words ``section 5301 of the Anti-
Drug Abuse Act of 1988 (21 U.S.C. 853a)'' and adding in their place the
words ``section 421 of the Controlled Substances Act (21 U.S.C. 862)'';
and
0
b. Removing the parenthetical authority citation at the end of the
section.
Sec. 75.62 [Amended]
0
8. Amend Sec. 75.62 by:
0
a. In paragraph (a)(2), removing the words ``section 5301 of the Anti-
Drug Abuse Act of 1988 (21 U.S.C. 853a)'' and adding, in their place,
the words ``section 421 of the Controlled Substances Act (21 U.S.C.
862)''; and
0
b. Removing the parenthetical authority citation at the end of the
section.
0
9. Amend Sec. 75.101 by:
0
a. Revising paragraph (a)(1);
0
b. Adding the period after ``assistance?)'' in paragraph (a)(7);
0
c. Removing paragraphs (a)(1)(i) and (ii); and
0
d. Removing the parenthetical authority citation at the end of the
section.
The revision reads as follows:
Sec. 75.101 Information in the application notice that helps an
applicant apply.
(a) * * *
(1) How an applicant can obtain an application package.
* * * * *
Sec. 75.102 [Amended]
0
10. Amend Sec. 75.102 by removing and reserving paragraph (b) and
removing the parenthetical authority citation at the end of the
section.
Sec. 75.103 [Amended]
0
11. Amend Sec. 75.103 by:
0
a. Removing in paragraph (b) the citation ``Sec. 75.102(b) and (d)''
and adding in its place the citation ``Sec. 75.102(d)''; and
0
b. Removing the parenthetical authority citation at the end of the
section.
0
12. Amend Sec. 75.104 by:
0
a. Revising the section heading;
0
b. Adding paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the
section.
The revision and addition read as follows.
Sec. 75.104 Additional application provisions.
* * * * *
(c) If an applicant wants a new grant, the applicant must submit an
application in accordance with the requirements in the application
notice.
0
13. Amend Sec. 75.105 by:
0
a. Revising the section heading;
0
b. In paragraph (b)(2)(i), removing the words ``by inviting
applications that meet the priorities'' and adding in their place the
words ``through invitational priorities'';
0
c. In paragraph (b)(2)(iii), removing the words ``seriously interfere
with an orderly, responsible grant award process or would otherwise'';
0
d. In paragraph (b)(2)(iv), removing the word ``or'' after the
semicolon;
0
e. In paragraph (b)(2)(v), removing the period and adding in its place
``; or'';
0
f. Adding paragraph (b)(2)(vi);
0
g. Removing the words ``high quality'' in paragraph (c)(3) and adding
in their place the words ``high-quality''; and
0
h. Removing the parenthetical authority citation at the end of the
section.
The revision and addition read as follows:
Sec. 75.105 Annual absolute, competitive preference, and invitational
priorities.
* * * * *
(b) * * *
(2) * * *
(vi) The final annual priorities are developed under the exemption
from rulemaking for the first grant competition under a new or
substantially revised program authority pursuant to section 437(d)(1)
of GEPA, 20 U.S.C. 1232(d)(1), or an exemption from rulemaking under
section 681(d) of the Individuals with Disabilities Education Act, 20
U.S.C. 1481(d), section 191 of the Education Sciences Reform Act, 20
U.S.C. 9581, or any other applicable exemption from rulemaking.
* * * * *
0
14. Revise Sec. 75.109 to read as follows:
Sec. 75.109 Changes to applications.
An applicant may make changes to its application on or before the
deadline date for submitting the application under the program.
0
15. Amend Sec. 75.110 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) and (c) as paragraphs (c) and (b),
respectively;
0
c. In newly redesignated paragraph (b) introductory text, adding the
word ``program'' before the words ``performance measurement'';
0
d. Revising newly redesignated paragraphs (b)(1)(ii) and (b)(2);
0
e. Revising newly redesignated paragraphs (c)(1) and (c)(2)(i); and
0
f. Removing the parenthetical authority citation at the end of the
section.
The revisions read as follows:
Sec. 75.110 Information regarding performance measurement.
(a) The Secretary may establish, in an application notice for a
competition, one or more program performance measurement requirements,
including requirements for performance measures, baseline data, or
performance targets, and a requirement that applicants propose in their
applications one or more of their own project-specific performance
measures, baseline data, or performance targets and ensure that the
applicant's project-specific performance measurement plan would, if
well implemented, yield quality data.
(b) * * *
(1) * * *
(ii) If the Secretary requires applicants to collect data after the
substantive work
[[Page 2007]]
of a project is complete in order to measure progress toward attaining
certain performance targets, the data-collection and reporting methods
the applicant would use during the post-performance period and why
those methods are likely to yield quality data.
(2) The applicant's capacity to collect and report the quality of
the performance data, as evidenced by quality data collection,
analysis, and reporting in other projects or research.
(c) * * *
(1) Project-specific performance measures. How each proposed
project-specific performance measure would: accurately measure the
performance of the project; be consistent with the program performance
measures established under paragraph (a) of this section; and be used
to inform continuous improvement of the project.
(2) * * *
(i) Why each proposed baseline is valid and reliable, including an
assessment of the quality data used to establish the baseline; or
* * * * *
0
16. Amend Sec. 75.112 by:
0
a. Revising the section heading;
0
b. Adding paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the
section.
The revision and addition read as follows:
Sec. 75.112 Include a proposed project period, a timeline, and a
logic model.
* * * * *
(c) The Secretary may establish, in an application notice, a
requirement to include a logic model.
Sec. 75.117 [Amended]
0
17. Amend Sec. 75.117 in paragraph (a) by adding ``and'' after the
semicolon.
Sec. 75.118 [Amended]
0
18. Amend Sec. 75.118 by:
0
a. In paragraph (a), removing ``2 CFR 200.327 and 200.328'' and adding
in its place ``2 CFR 200.328 and 200.329''; and
0
b. Removing the parenthetical authority citation at the end of the
section.
0
19. Revise Sec. 75.119 to read as follows:
Sec. 75.119 Information needed if private school children
participate.
If a program provides for participation of students enrolled in
private schools and, as applicable, their teachers or other educational
personnel, and their families, the application must include a
description of how the applicant will meet the requirements under
Sec. Sec. 299.7-299.11.
0
20. Amend Sec. 75.127 by:
0
a. Redesignating paragraphs (b)(3) and (4) as paragraphs (b)(4) and
(5), respectively;
0
b. Adding new paragraph (b)(3) and paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the
section.
The additions read as follows:
Sec. 75.127 Eligible parties may apply as a group.
* * * * *
(b) * * *
(3) Partnership.
* * * * *
(c) In the case of a group application submitted in accordance with
Sec. Sec. 75.127 through 75.129, all parties in the group must be
eligible applicants under the competition.
Sec. 75.135 [Amended]
0
21. Amend Sec. 75.135 by:
0
a. In paragraph (a) introductory text, removing the citation ``2 CFR
200.320(c) and (d)'' and adding in its place the citation ``2 CFR
200.320(b)''; and
0
b. In paragraph (b) introductory text, removing the citation ``2 CFR
200.320(b)'' and adding in its place the citation ``2 CFR 200.320(a)''.
Sec. 75.155 [Amended]
0
22. Amend Sec. 75.155 by removing the words ``the authorizing statue
requires'' and adding in their place the words ``applicable statutes
and regulations require''.
Sec. 75.157 [Amended]
0
23. Amend Sec. 75.157 by removing the parenthetical authority citation
at the end of the section.
Sec. 75.158 [Amended]
0
24. Amend Sec. 75.158 by:
0
a. In paragraph (c), removing the citation ``Sec. 75.102(b) and (d)''
and adding in its place the citation ``Sec. 75.102(d)''; and
0
b. Removing the parenthetical authority citation at the end of the
section.
Sec. Sec. 75.190 through 75.192 [Removed and Reserved]
0
25. Remove the undesignated section heading before Sec. 75.190, and
remove and reserve Sec. Sec. 75.190 through 75.192.
0
26-27. Revise the undesignated center heading before Sec. 75.200 and
revise Sec. 75.200 to read as follows:
Selection of New Discretionary Grant Projects
Sec. 75.200 How applications for new discretionary grants and
cooperative agreements are selected for funding; standards for use of
cooperative agreements.
(a) The Secretary uses selection criteria to evaluate the
applications submitted for new grants under a discretionary grant
program.
(b) To evaluate the applications for new grants under the program,
the Secretary may use--
(1) Selection criteria established under Sec. 75.209;
(2) Selection criteria in Sec. 75.210; or
(3) Any combination of criteria from paragraphs (b)(1) and (b)(2)
of this section.
(c)(1) The Secretary may award a cooperative agreement instead of a
grant if the Secretary determines that substantial involvement between
the Department and the recipient is necessary to carry out a
collaborative project.
(2) The Secretary uses the selection procedures in this subpart to
select recipients of cooperative agreements.
Sec. 75.201 [Amended]
0
28. Amend Sec. 75.201 by:
0
a. In paragraph (b), adding the words ``or factors'' after the words
``selection criteria'';
0
b. In paragraph (c), removing the word ``and'' between the words
``selection criteria'' and ``selected factors'' and adding in its place
the word ``or''; and
0
c. Removing the parenthetical authority citation at the end of the
section.
Sec. 75.209 [Amended]
0
29. Amend Sec. 75.209 by:
0
a. In the introductory text, adding a comma immediately after ``limited
to''; and
0
b. In paragraph (c), removing the words ``the program statute or
regulations'' and adding in their place the words ``applicable statutes
and regulations''.
0
30. Revise Sec. 75.210 to read as follows:
Sec. 75.210 General selection criteria.
In determining the selection criteria to evaluate applications
submitted in a grant competition, the Secretary may select one or more
of the following criteria and may select from among the list of
optional factors under each criterion. The Secretary may define a
selection criterion by selecting one or more specific factors within a
criterion or assigning factors from one criterion to another criterion.
[[Page 2008]]
(a) Need for the project. (1) The Secretary considers the need for
the proposed project.
(2) In determining the need for the proposed project, the Secretary
considers one or more of the following factors:
(i) The data presented (including a comparison to local, State,
regional, national, or international data) that demonstrates the issue,
challenge, or opportunity to be addressed by the proposed project.
(ii) The extent to which the proposed project demonstrates the
magnitude of the need for the services to be provided or the activities
to be carried out by the proposed project.
(iii) The extent to which the proposed project will provide
support, resources, or services; close gaps in educational opportunity;
or otherwise address the needs of the targeted population, including
addressing the needs of underserved populations most affected by the
issue, challenge, or opportunity to be addressed by the proposed
project.
(iv) The extent to which the proposed project will focus on serving
or otherwise addressing the needs of underserved populations.
(v) The extent to which the specific nature and magnitude of gaps
or challenges are identified and the extent to which these gaps or
challenges will be addressed by the services, supports, infrastructure,
or opportunities described in the proposed project.
(vi) The extent to which the proposed project will prepare
individuals from underserved populations for employment in fields and
careers in which there are demonstrated shortages.
(b) Significance. (1) The Secretary considers the significance of
the proposed project.
(2) In determining the significance of the proposed project, the
Secretary considers one or more of the following factors:
(i) The extent to which the proposed project is relevant at the
national level.
(ii) The significance of the problem or issue as it affects
educational access and opportunity, including the underlying or related
challenges for underserved populations.
(iii) The extent to which findings from the project's
implementation will contribute new knowledge to the field by increasing
knowledge or understanding of, including the underlying or related
challenges, effective strategies for addressing educational challenges
and their effective implementation.
(iv) The potential contribution of the proposed project to improve
the provision of rehabilitative services, increase the number or
quality of rehabilitation counselors, or develop and implement
effective strategies for providing vocational rehabilitation services
to individuals with disabilities.
(v) The likelihood that the proposed project will result in
systemic change that supports continuous and sustainable improvement.
(vi) The potential contribution of the proposed project to the
development and advancement of theory, knowledge, and practices in the
field of study, including the extent to which the contributions may be
used by other appropriate agencies, organizations, or institutions.
(vii) The potential for generalizing from the findings or results
of the proposed project.
(viii) The extent to which the proposed project is likely to build
local, State, or national capacity to provide, improve, sustain, or
expand training or services that address the needs of underserved
populations.
(ix) The extent to which the proposed project involves the
development or demonstration of innovative and effective strategies
that build on, or are alternatives to, existing strategies.
(x) The extent to which the proposed project is innovative and
likely to be effective compared to other efforts to address a similar
problem.
(xi) The likely utility of the resources (such as materials,
processes, or techniques) that will result from the proposed project,
including the potential for effective use in a variety of conditions,
populations, or settings.
(xii) The extent to which the resources, tools, and implementation
lessons of the proposed project will be disseminated in ways to the
targeted population and local community that will enable them and
others (including practitioners, researchers, education leaders, and
partners) to implement similar strategies.
(xiii) The potential effective replicability of the proposed
project or strategies, including, as appropriate, the potential for
implementation by a variety of populations or settings.
(xiv) The importance or magnitude of the results or outcomes likely
to be attained by the proposed project, especially contributions toward
improving teaching practice and student learning and achievement.
(xv) The importance or magnitude of the results or outcomes likely
to be attained by the proposed project, especially improvements in
employment, independent living services, or both, as appropriate.
(xvi) The importance or magnitude of the results or outcomes likely
to be attained by the proposed project that demonstrate the impact of
the proposed project for the targeted underserved populations in terms
of breadth and depth of services.
(xvii) The extent to which the proposed project introduces an
innovative approach, such as a modification of an evidence-based
project component to serve different populations, an extension of an
existing evidence-based project component, a unique composition of
various project components to explore combined effects, or an emerging
project component that needs further testing.
(c) Quality of the project design. (1) The Secretary considers the
quality of the design of the proposed project.
(2) In determining the quality of the design of the proposed
project, the Secretary considers one or more of the following factors:
(i) The extent to which the goals, objectives, and outcomes to be
achieved by the proposed project are clearly specified, measurable, and
ambitious yet achievable within the project period, and aligned with
the purposes of the grant program.
(ii) The extent to which the design of the proposed project
demonstrates community engagement and input to ensure that the project
is appropriate to successfully address the needs of the target
population or other identified needs and will be used to inform
continuous improvement strategies.
(iii) The quality of the conceptual framework, such as a logic
model, underlying the proposed project, including how inputs are
related to outcomes.
(iv) The extent to which the proposed project's logic model was
developed based on engagement of a broad range of community members and
partners.
(v) The extent to which the proposed project proposes specific,
measurable targets, connected to strategies, activities, resources,
outputs, and outcomes.
(vi) The extent to which the design of the proposed project
includes a thorough, high-quality review of the relevant literature, a
high-quality plan for project implementation, and the use of
appropriate methodological tools to enable successful achievement of
project objectives.
(vii) The quality of the proposed demonstration design, such as
qualitative and quantitative design, and procedures for documenting
project activities and results for underserved populations.
(viii) The extent to which the design for implementing and
evaluating the proposed project will result in
[[Page 2009]]
information to guide possible replication of project activities or
strategies, including valid and reliable information about the
effectiveness of the approach or strategies employed by the project.
(ix) The extent to which the proposed dev
[…truncated; see source link]Indexed from Federal Register on January 11, 2024.
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