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Rule2024-17239

Education Department General Administrative Regulations and Related Regulatory Provisions

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Published

August 29, 2024

Effective

September 30, 2024

Issuing agencies

Education Department

Abstract

The Secretary of Education amends the Education Department General Administrative Regulations (EDGAR) and associated regulatory provisions to update, improve, and better align them with U.S. Department of Education (Department) implementing statutes and other regulations and procedures.

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[Federal Register Volume 89, Number 168 (Thursday, August 29, 2024)]
[Rules and Regulations]
[Pages 70300-70346]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17239]

[[Page 70299]]

Vol. 89

Thursday,

No. 168

August 29, 2024

Part IV

Department of Education

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34 CFR Parts 75, 76, 77, et al.

Education Department General Administrative Regulations and Related
Regulatory Provisions; Final Rule

Federal Register / Vol. 89, No. 168 / Thursday, August 29, 2024 /
Rules and Regulations

[[Page 70300]]

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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: Final regulations.

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SUMMARY: The Secretary of Education amends the Education Department
General Administrative Regulations (EDGAR) and associated regulatory
provisions to update, improve, and better align them with U.S.
Department of Education (Department) implementing statutes and other
regulations and procedures.

DATES: These regulations are effective September 30, 2024. The
incorporation by reference of certain publications listed in this final
rule is approved by the Director of the Federal Register as of
September 30, 2024. The incorporation by reference of the other
material listed in this final rule was approved by the Director of the
Federal Register as of July 31, 2017, and October 5, 2020.

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#2c69686b6d7e6c4948024b435a"><span class="__cf_email__" data-cfemail="97d2d3d0d6c5d7f2f3b9f0f8e1">[email&#160;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 amend parts 75, 76, 77, 79, and 299 of title 34 of the
Code of Federal Regulations.

Summary of Major Provisions of This Regulatory Action

The final EDGAR provisions:
<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 revise the tiers of evidence to
incorporate and generally parallel those in the ESEA and 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 the 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 or other conceptual
framework 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 to 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 its 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 for the first time that, under Sec. 76.50, where
not prohibited by law, regulation, or the terms and conditions of the
grant award, State agencies 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.
Costs and Benefits: As further detailed in the Regulatory Impact
Analysis section, the benefits of these final regulations will outweigh
any associated costs to States, local educational agencies (LEAs), and
other Department applicants and grantees. The final regulations will,
in part, update terminology to align with applicable statutes and
regulations. Many of the adjustments will support the Department in
selecting high-quality grantees and those grantees in ensuring the
effectiveness and continuous improvement of their projects. These
changes include, for example, adding 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. The Administrator of the Office of Information
and Regulatory Affairs (OIRA) has determined this to be a significant
regulatory action under Executive Order 12866, as amended most recently
by Executive Order 14094, and therefore has been subject to review by
OIRA.
Supplementary Information--General: On January 11, 2024, the
Secretary published a Notice of Proposed Rulemaking (NPRM) for these
amendments in the Federal Register (89 FR 1982).
There are differences between some of the selection criteria and
definitions proposed in the NPRM and those established in these final
regulations, as discussed in the Analysis of Comments and Changes
section below.
We recognize that the Office of Management and Budget (OMB) updated
the Uniform Administrative Requirements, Cost Principles, and Audit
Requirements (the Uniform Guidance) on April 22, 2024 (89 FR 30046).
Many of the changes in EDGAR align with the goals behind the changes in
the Uniform Guidance, and the Department will continue to review EDGAR,
as needed, to ensure alignment with the Uniform Guidance.
Incorporation by Reference: Section 75.616 incorporates by
reference the American Society of Heating,

[[Page 70301]]

Refrigerating, and Air Conditioning Engineers (ASHRAE) Standard 90.1-
2022. ASHRAE is included in the construction section focused on energy
conservation and has been included in EDGAR for more than 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>, and a read-only version is available
at <a href="https://www.ashrae.org/technical-resources/standards-and-guidelines/read-only-versions-of-ashrae-standards">https://www.ashrae.org/technical-resources/standards-and-guidelines/read-only-versions-of-ashrae-standards</a>. This final rule also will
remove outdated versions of the ASHRAE standard from Sec. 75.616.
Section 77.1 incorporates by reference the What Works Clearinghouse
(WWC) Procedures and Standards Handbook, Version 5.0. The purpose of
the WWC 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>. As the
Handbook is available as a free download, it is reasonably available to
the public. 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>.
Public Comment: In response to our invitation in the NPRM, 28
unique parties submitted comments on the proposed regulations. We group
major issues according to subject.
Analysis of Comments and Changes: An analysis of the comments and
of any changes in the regulations since publication of the NPRM
follows. Generally, we do not address technical or minor comments or
comments that are not relevant to the proposed changes in the NPRM.

General Comments

Comments: Multiple commenters offered general support for the
proposed changes to EDGAR and appreciated the specificity of the
proposed changes and the removal of conflicting regulations. One
commenter appreciated the focus on using and building evidence in the
Department's grant programs. One commenter recommended finalizing the
updates to EDGAR in time for fiscal year (FY) 2025 grant competitions.
Additionally, commenters appreciated the Department's effort to reduce
barriers for underserved populations.
Multiple commenters appreciated the focus on continuous improvement
in the proposed changes and recommended additional locations for such
focus in provisions governing discretionary and formula awards. One
commenter urged the Department to ensure it sets clear expectations in
its NIAs so that applicants with the greatest need and the opportunity
for greatest impacts receive funding. The commenter specifically called
for clear expectations by the Department in how it will continuously
improve its grantmaking efforts, including how the Department clearly
communicates the selection criteria in its NIAs, how those criteria are
scored, and expectations for grantee performance.
Discussion: We appreciate the support for the proposed changes and
agree that they will provide specificity and clarity regarding
Department processes and the purpose of these regulations and will
better serve the needs of underserved populations. We agree on the
importance of continuous improvement and address comments related to
specific proposed additions in the relevant sections below. The
proposed revisions to Sec. 75.210, discussed further below, are
intended to strengthen expectations around need and significance and
how applicants address those selection criteria.
Lastly, we appreciate the value of these final regulations for
upcoming and future grant competitions. We will consider approaches to
using these criteria that advance the goal of best positioning
applicants and grantees to continuously improve their practices while
implementing their projects. With respect to grantmaking expectations,
the Department continues to focus on simplifying NIAs and clarifying
the focus on outcomes for communities served.
Changes: None.

34 CFR Part 75--Direct Grant Programs

Sections 75.101 and 75.102 Information in the Application Notice That
Helps An Applicant Apply; Deadline Date for Applications
Comments: One commenter encouraged the Department to consider
additional revisions to EDGAR that were not part of the NPRM, focused
on the Department's outreach efforts when announcing grant competitions
and support to applicants during the application period. Specifically,
the commenter proposed revisions to Sec. Sec. 75.100 through 75.102 to
add LEA outreach efforts and to specify longer application periods (90
days or more) for competitions where LEAs are eligible applicants.
Discussion: The Department recognizes the importance of outreach in
its discretionary grant competitions. Outreach and technical assistance
efforts are a part of the Department's ongoing grant planning
conversations,

[[Page 70302]]

and the Department actively pursues outreach through stakeholders and
partner organizations, online forums, and grant competition summary
documents such as brochures. Outreach also includes technical
assistance for applicants during the application period, including
through webinars and other efforts to ensure applicant questions are
addressed. The Department shares the interest in continuously improving
outreach efforts to support increased awareness of grant opportunities
and to ensure all potential grantees are competitive. We appreciate the
recommendation to specify outreach efforts in Sec. Sec. 75.100 and
75.101 but decline the revisions proposed by commenters because the
Department needs to determine the best approach for each program based
on the potential applicants, lessons learned from previous efforts, and
new and creative approaches.
Regarding the proposed 90-day minimum application period in Sec.
75.102 for competitions where LEAs are eligible applicants, we are
continually looking for ways to ensure a sufficient grant application
period for our competitions, supporting efforts to make grant awards
earlier in the year, and also ensuring that grant awards are made early
enough to support efficient implementation timelines and to ensure
appropriated funds do not lapse. Given the complexity of grant
competitions, including those where LEAs are the eligible applicants,
the Department needs discretion in establishing appropriate deadlines
and therefore declines to make this change.
Changes: None.
Section 75.110 Information Regarding Performance Measurement
Comments: We received two comments on the proposed revisions to
Sec. 75.110 regarding performance measures. Both commenters generally
supported the proposed revisions and the Department's effort to clearly
differentiate between program and project-specific performance
measures, and the commenters believe the proposed changes will lead to
better quality data. The commenters proposed adding a new paragraph (d)
to Sec. 75.110 allowing applicants and grantees to propose alternative
measures, baseline data, or targets related to program goals and
objectives.
Discussion: We appreciate the support for the proposed revisions to
Sec. 75.110. Regarding the proposed paragraph (d), applicants and
grantees already are permitted to propose alternative performance
measures, baseline data, and targets in the form of project-specific
measures. See Sec. 75.110(a). As such, we do not think the additional
paragraph is necessary.
Changes: None.
Section 75.112 Include a Proposed Project Period and a Timeline
Comments: Multiple commenters offered support for the proposed
revisions to Sec. 75.112, stating that the benefit of a logic model--
requiring applicants to connect project activities to outcomes
outweighed any additional cost or time in its preparation. One
commenter noted the value of connecting the outcomes in the logic model
with a project's performance measures, and another commenter mentioned
how logic models help summarize the project's intent, activities, and
outcomes.
Multiple commenters recommended redesignating proposed paragraph
(c) as a new paragraph (d), adding a new paragraph (c) that would
require a continuous improvement plan, and expanding redesignated
paragraph (d) to require a conceptual framework, which is broader than
a logic model and accounts for other ways an applicant can demonstrate
a connection between inputs and outcomes. The commenters recommended
including a continuous improvement requirement so that applicants would
make clear how they would use research, data, community engagement, and
other feedback to inform the grant project.
A few commenters raised concerns about the proposed requirement for
a logic model in Sec. 75.112, worried it would potentially limit
applications, especially applications from smaller, less experienced
entities who lack resources (both time and funding) to apply for
Federal grant funds and add an application requirement that, they
believe, would not result in substantive improvement in the quality of
the application. The commenters felt such applicants may be unsure
about how to articulate their project's reasoning in the form of a
logic model or about using a specific template, and were concerned
about the amount of time and burden associated with using a template.
In addition, these commenters raised concerns that the logic model
might satisfy the requirement but might not actually be aligned with
the proposed project or the evaluation plan for the project, including
consideration of the local context. They also stated that logic models
are often developed by grant writers, which would favor entities that
can afford such a writer.
Discussion: We appreciate the commenters' feedback on the proposed
revisions to Sec. 75.112. We note that the inclusion of a logic model
as an option in EDGAR does not mean that all grant programs will
require one. We consider several things when designing a grant
competition, including the purpose of the program, the types of
applicants and their experience in applying for Department grants, as
well as which selection criteria to use for the competition.
We agree with the commenters interested in ensuring grantees have
continuous improvement plans for their projects. The final selection
criteria in Sec. 75.210 include factors that evaluate the elements of
an applicant's logic model, such as how inputs are related to outcomes
and the likely benefit to the intended recipients, as indicated by the
logic model, which address the commenters' concern about alignment with
the proposed project and its intended outcomes. The final selection
criteria in Sec. 75.210 also include factors requiring applicants to
consider how the proposed project design focuses on continuous
improvement efforts, such as establishing targets, using data, and
gathering community member and partner input to measure progress and
inform continuous improvement. We are revising paragraph (b) to include
the requirement to discuss continuous improvement in relation to the
logic model or within the applicant's project narrative.
We also agree with the commenters' suggestion that broadening the
language beyond ``logic model'' allows for other frameworks that
connect activities and outcomes, without requiring a specific logic
model format, and therefore added ``conceptual framework''.
The Department currently does not have a specific logic model
template. If a logic model is used in a particular grant competition,
the Department will provide technical assistance and resources to help
applicants design their logic model, which may include the Regional
Educational Laboratory Program's (REL Pacific) Education Logic Model
Application, available at <a href="https://ies.ed.gov/ncee/rel/Products/Region/pacific/Resource/100677">https://ies.ed.gov/ncee/rel/Products/Region/pacific/Resource/100677</a>, and other resources including <a href="https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014025.pdf">https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014025.pdf</a>, <a href="https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014007.pdf">https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014007.pdf</a>, and <a href="https://ies.ed.gov/ncee/edlabs/regions/northeast/pdf/REL_2015057.pdf">https://ies.ed.gov/ncee/edlabs/regions/northeast/pdf/REL_2015057.pdf</a>. The
Department agrees with the commenter that it is important to develop
these resources to support all applicants, and we value the role of
partners in the education community who provide resources to support
the development of logic models. Partners are a key element of
supporting

[[Page 70303]]

evidence-based policymaking in our shared efforts to improve
opportunities and outcomes for learners.
Changes: We have revised paragraph (b) in Sec. 75.112 to add
information about what details related to continuous improvement must
be addressed in the project narrative as well as added ``project
narrative'' to the title of Sec. 75.112, and revised paragraph (c) to
include a ``conceptual framework.''
Section 75.125 Submit a Separate Application to Each Program
Comments: Two commenters proposed a revision to Sec. 75.125 to
allow the Secretary to establish a common application process across
multiple grant programs. The commenters were interested in making it
easier for applicants to access Federal funds and to streamline
application requirements.
Discussion: We share the commenters' interest in reducing applicant
burden. The Department has the authority to establish a common
application process where appropriate, taking into account the
statutes, purposes, and requirements of each grant program, so
specifically recognizing such authority in the regulations is not
necessary.
Changes: None.
Section 75.210 General Selection Criteria
Comments: We received multiple comments on the proposed revisions
to the selection criteria. Commenters were generally supportive. Some
proposed revisions or additional selection factors, which are described
further below. Multiple commenters supported linking the selection
criteria to the components of an applicant's logic model. Commenters
also appreciated the focus on underserved populations when addressing
the need for, and significance of, a proposed project.
Regarding paragraph (a) (``need for the project''), some commenters
suggested including language to emphasize the comprehensiveness of the
data required in factor (i), which considers how the applicant's data
demonstrate the issue, challenge, or opportunity to be addressed by the
project, and language requiring coordination with other programs and
services. Some commenters also expressed support for factor (iv), which
considers the extent to which the project focuses on serving or
addressing the needs of underserved populations.
Regarding paragraph (b) (``significance''), commenters recommended
revisions to factors (v), (xi), and (xvii) that focused on measurable
improvement, data infrastructure, and data analysis, citing the
importance of using data to determine need and significance. Another
commenter expressed general support for factor (xii) and its focus on
dissemination of information beyond the individual grant so others can
learn from these Federal investments. One commenter sought clarity
about the meaning of the word ``innovative'' with respect to the
factors in paragraph (b), concerned that peer reviewers' understanding
of the term could widely vary.
Regarding paragraph (c) (``quality of the project design''), two
commenters proposed revisions to factors (v) and (x) to emphasize the
use of administrative data and reusable data tools in project design.
Another commenter expressed general support for the focus on formative
research in factor (xx) and the focus on continued refinement of a
project based on initial findings. One commenter proposed a new factor
for paragraph (c) focused on sharing the research design, methods, and
preliminary outcomes early in the project timeline to ensure the
quality of the research. One commenter appreciated the focus on
meaningful community engagement in factor (xviii). One commenter raised
a general concern about utilizing too many factors from paragraph (c)
in an NIA, worried it would complicate the NIA and disadvantage less
experienced applicants.
With respect to paragraph (d) (``quality of project services''),
two commenters proposed a revision to factor (xii) to include how data
from other social services or programs will be utilized to inform the
project services.
We received multiple comments regarding paragraph (e) (``quality of
the project personnel''). Specifically, multiple commenters appreciated
the focus of ensuring diverse perspective in factor (iv); commenters
were concerned, however, that an emphasis on having the project team
reflect the demographics of project participants might limit other
personnel with relevant experience, or that personnel might not be
willing to share their demographics. One commenter proposed inclusion
of ``proximate, lived experiences'' to broaden the focus of the factor.
Another commenter was concerned that this factor might result in a
researcher that is considered to be project personnel prioritizing
samples that are reflective of their own demographics. One commenter
proposed a new factor under paragraph (e) on project personnel using
technology for data collection and analysis.
In paragraph (f) (``adequacy of resources''), one commenter
appreciated factor (iv) and its focus on the reasonableness of costs in
relation to people served, and two commenters proposed a new factor
focused on ``leveraging shared data and evaluation infrastructure,''
consistent with the commenters' recommendations of including a focus on
data throughout the selection criteria.
In paragraph (g) (``quality of the management plan''), two
commenters recommended a revision to factor (ii) to include ``shared
data and evaluation infrastructure,'' consistent with the commenter's
interest in seeing the use of data across the selection criteria.
We received multiple comments on paragraph (h) (``quality of the
evaluation plan or other evidence-building''). One commenter was
concerned about the factors' wide range in rigor, especially in
relation to evaluation design, and sought clarification on the meaning
of an independent evaluation, specifically whether the evaluator could
be from a separate unit of the same organization. Two commenters
proposed a new factor on including administrative data and the ``depth
of insights'' from using such data in the project evaluation, citing
the importance of such data in continuous improvement efforts.
One commenter offered general support for paragraph (i) (``strategy
to scale''), understanding the importance of local context for scaling
strategies. One commenter sought clarity on how ``efficiency'' is
defined for purposes of the paragraph (i) factors. Two commenters
proposed a new factor in paragraph (i) on data tools and
infrastructure, continuing to emphasize the importance of using data,
and building an infrastructure for data, in Department grant programs
and grant projects.
Discussion: We appreciate the overall positive feedback on Sec.
75.210 and commenters' proposed revisions. We agree that it is
important to focus on underserved populations and to tie the selection
criteria to an applicant's logic model.
Regarding the proposed revisions to paragraph (a) factor (i), while
it is important for applicants to provide data to support the need for
the project, it would be difficult to meaningfully define
``comprehensive'' for all contexts, as the type of level of data varies
based on a program's purpose and the population to be served, and we
note that there are other selection criteria that incorporate the
concept of program or service coordination, such as the coordination
with other Federal investments. As such, we are not

[[Page 70304]]

including any of the proposed revision the factors under paragraph (a).
Under paragraph (b), we appreciate the general support for the
dissemination focus in factor (xii). We agree that it is important for
improvement to be ``measurable'' in (v) and that ``data
infrastructure'' fits within the purpose of factor (xi), and revised
those factors in paragraph (b) accordingly. As for the proposed
revisions to factor (xvii) to incorporate a data analysis tool, we
determined this would more appropriately fit within paragraph (i)
(``strategy to scale''), and we have included a proposed a new factor
(x) under paragraph (i) related to data tools and techniques. We
decline to adopt a definition of ``innovative'' for the purposes of
paragraph (b), because the meaning of that term could vary based on
program purpose and context, and it's important for individual programs
to decide its meaning. In some programs, for example, innovative may
mean something that is novel, while in others it may refer to a program
aspect that is specific to the population or setting to be served.
Regarding the comment about using too many factors in an NIA from
paragraph (c), we agree that it is important to consider, when
reviewing which selection criteria to include an NIA, which criteria
and how many factors are necessary, weighing applicant burden and the
peer review process as we make these determinations but are not making
and changes, as determination regarding the appropriate number of
selection criteria and factors are determined for each grant
competition. We support the proposed revision to factor (v) under
paragraph (c), as we agree with the use of administrative data to
support continuous improvement, and we have revised paragraph (c)
accordingly. We decline to revise factor (x) to require use of
administrative data, because not all grant programs or projects result
in the creation of data tools, and we do not want to unnecessarily
restrict the use of this factor. We appreciate the support for factors
(xviii) and (xx) and agree that community engagement, performance
feedback, and formative data are important to continuous improvement
efforts and project success. We decline to adopt the proposed new
factor related to early registration of research design, because we do
not think this is a marker of quality related to project design at the
application phase. Rather, this issue is best handled in post-award
monitoring.
We decline the proposed revision to factor (xii) in paragraph (d)
to include how data from other programs will inform project services,
because focusing on other programs dilutes the central purpose of this
factor, which is ensuring that project services align with the needs of
the target population.
Regarding comments on paragraph (e), factor (iv) is intended to
encourage projects that hire individuals who can relate to the life
experience, assets, and needs of the target population; we recognize,
however, that the demographics language as proposed could unnecessarily
limit how those qualities are determined. As such, we have revised
factor (iv) to include consideration of the lived or relevant
experiences of those in the target population to allow applicants the
flexibility to select a project team that can best serve project
participants, taking a range of relevant circumstances into account,
and have made a similar revision regarding lived experiences in factor
(ii). We also took into consideration, across factors, the appropriate
use of ``target population'' and ``project participants'' within a
given factor. Regarding the comment about a researcher prioritizing
study samples that reflect their own demographic characteristics during
a project evaluation, we think this factor relates to the
qualifications and relevant experiences of the personnel of the
project, not about the design of the evaluation and any potential
biases in the evaluation design. While we appreciate the suggestion to
add a factor emphasizing the use of technology to support data
collection and analysis, we have determined that this concept is more
appropriate as part of the ``strategy to scale'' factors in paragraph
(i), and we have added a new factor (x) in paragraph (i) to that
effect.
We appreciate the support for paragraph (f) and understand the
importance of shared data infrastructure. As noted above, we have
determined that this concept is more appropriate as part of the
``strategy to scale'' factors in paragraph (i), and we have added a
factor (x) related to data tools and techniques in paragraph (i).
In paragraph (g), we recognize the importance of the management
plan utilizing data but do not think it is necessary to add the data
source or the infrastructure around the data, as it is important that
the factor should be focused on the overall use of quantitative and
qualitative data without creating further complications for applicants
or peer reviewers.
We understand that expectations related to the project evaluation
in the paragraph (h) factors differ in terms of rigor; however,
variance in the evaluation factors is intentional to account for
reasonable differences in a program's purpose, the size of a grant, and
complexity of the project. Regarding the meaning of independent
evaluation, the NPRM included a proposed definition of ``independent
evaluation'' that is adopted in Sec. 77.1(c) of these final
regulations, and that definition specifies that the evaluation must be
independent from the design and implementation of the project
component, which could allow for a separate unit from an organization,
as long as that unit is not involved in the development or
implementation. As to the proposed new factor related to use of
administrative data, we agree there is value in mentioning the use of
administrative data and have added a new factor (xvi) to gauge the
extent to which the evaluation will access and link high-quality
administrative data from authoritative sources to improve evaluation
quality and comprehensiveness. Because this language comprehensively
encompasses use of high-quality administrative data, however, we
decline to also include the commenter's proposed ``depth of insights''
language.
With respect to paragraph (i), we appreciate the positive comments
recognizing the importance of scaling strategies and taking local needs
and context into consideration when scaling. We also agree that data
and infrastructure tools are important to scaling efforts. To capture
these important tools and additional proposed data-related factors in
one place, we have added a new factor (x), which will consider the
extent to which the project will create reusable data and evaluation
tools and techniques that facilitate expansion and support continuous
improvement. Consolidating the administrative data proposals into one
factor maximizes the impact of individual selection criteria, both in
terms of how applicants respond and how peer reviewers assess an
application. We decline the commenter's request to define
``efficiency'' for the purposes of paragraph (i) because efficiency may
vary within a specific Department grant program or individual grant
project, and we want to retain flexibility in the application of that
term. For example, efficiency in one grant program and grant project
might relate to the cost per participant, while in another it might
relate to identifying the project component(s) most necessary to
maintain at scale.
We also undertook a review of the factors and selection criteria to
ensure consistency, taking into consideration the comments received. As
a result of this review, we made minor edits for

[[Page 70305]]

clarity and consistency. These minor edits include, for example: under
``quality of the project design,'' using the term ``includes'' instead
of ``encourages;'' under ``quality of project personnel,'' adding ``the
extent to which,'' to better allow peer reviewers to assess the quality
of an applicant's response to the selection criteria and specific
factors; under ``adequacy of resources,'' connecting the costs more
clearly with potential replication; under ``quality of the project
evaluation or other evidence-building,'' aligning analytic strategies
with project components; and under ``strategy to scale,'' aligning the
introductory paragraphs with those of the other selection criteria.
Changes: In paragraph (a), we moved ``close gaps in the educational
opportunity'' to the end of factor (iii).
In paragraph (b), we added ``educational challenges'' to factor
(iii), we added ``measurable'' to factor (v), ``entities'' to factor
(vi), ``regional'' to factor (viii), ``more'' to factor (x), ``or data
infrastructure'' to factor (xi), and ``development of'' to factor
(xvii).
In paragraph (c), we ensured consistency in the use of ``logic
model'' and ``conceptual framework'' in factors (iii) and (iv); added
``and uses reliable administrative data to measure progress and inform
continuous improvement'' to factor (v); added ``more'' to factor (x),
changed ``encourages'' to ``includes'' in factors (xviii) and (xix); in
factor (xxii), clarified that reviewers can assess the extent to which
applicants propose a plan for capacity-building that leverages one or
more of the other resources listed in that factor; and included the
``extent to which'' language in factor (xxiii).
In paragraph (c), we added ``meaningful'' to factor (ii).
In paragraph (d), we added ``responsive'' to factor (i), modified
factor (ii) for clarity by substituting ``target population'' for
``entities,'' and added ``or other conceptual framework'' after ``logic
model'' in factor (iv).
In paragraph (e), we added the ``extent to which'' language in
factors (i) and (ii), and we revised factors (ii) and (iv) to focus on
lived and relevant experiences.
In paragraph (f), we removed the first mention of ``organization''
from factor (i), revised factor (v) to clarify how the costs would
``permit other entities to replicate the project,'' and in factor
(vii), we changed ``institution'' to ``applicant'' and the ``end date
of Federal funding'' to ``Federal funding ends.''
In paragraph (g), we added ``meaningful'' to factor (ii).
In paragraph (h), we changed ``provided for describing'' to ``are
designed to measure'' in factor (iii), added ``diagnostic'' to factor
(vi), revised the second half of factor (xi) to focus on informing
decisions about specific project components, added ``the extent to
which'' in factor (xiv) along with ``required to conduct an evaluation
of the proposed project,'' and added a new factor (xvi) on
administrative data.
In paragraph (i), we revised paragraph (1) to include ``the
proposed project for recipients, community members, and partners'' and
then removed this language from paragraph (2); added consistent
language in factors (ii) and (iii) on ``together with any project
partners;'' revised factor (iii) to focus on scaling at the national
level, to distinguish it from factor (ii), as was the intent; added the
``quality of the'' before ``mechanisms'' in factor (iv) for
consistency, changing ``being able to expand the proposed project'' to
``expansion'' in factor (vii); added ``and are responsive to'' in
factor (vii), and added a new factor (x) on data tools and techniques.
Section 75.225 What procedures does the secretary use when deciding to
give special consideration to new potential grantees?
Comments: Multiple commenters supported the proposed changes to
Sec. 75.225 and the ability to prioritize new potential grantees,
recognizing that the current ``novice applicant'' language limited the
Department to prioritizing only applicants that have not received
Federal funding in the past five years. Two commenters recommended that
the Department retain current Sec. 75.225(d), allowing for the
imposition of special grant conditions for novice applicants.
In addition to prioritizing new potential grantees, multiple
commenters encouraged prioritizing grantees ``with a history of
success,'' citing, as an example, rural grantees that have benefited
from the experience.
One commenter, while agreeing with the use of the term ``new
potential grantee'' instead of ``novice applicant,'' questioned the
likelihood that this modified priority would diversify the applicant
and grantee pools, particularly in competitions with limited numbers of
applications and competitions where there are often repeat grantees.
One commenter urged the Department not to prioritize new potential
grantees in the TRIO programs, citing the program's statutory
requirement to consider prior experience.
Discussion: We appreciate the support for the proposed changes to
Sec. 75.225 and agree that the proposed revisions will allow use of
this priority in more discretionary grant programs and that it will
more effectively promote the Department's interest in awarding grants
to a diverse and inclusive group of applicants, including those who
have served students with positive results but may have less experience
with Federal grants. The Department declines the commenter's suggestion
to retain the language regarding special conditions for new applicants
in current Sec. 75.225(d), because the Department already is required
to conduct a risk assessment of applicants prior to making an award
under 2 CFR 200.206 of the Uniform Guidance, and, under 34 CFR 200.208,
to impose appropriate specific conditions, and the revisions to Sec.
75.225 eliminate this redundancy.
The Department declines to adopt a specific priority for
experienced grantees, because other factors, such as the selection
criteria in Sec. 75.210, already take into account organizational and
personnel experience. We are clarifying, in paragraph (a), that in
instances where we prioritize new potential grantees by establishing an
absolute priority for those applicants, we also have a separate
absolute priority for applicants that are not new potential grantees,
to align with the current practices of the Department. For example, a
competition including Sec. 75.225(b)(3)(i) as an absolute priority
would include Sec. 75.225(c)(3)(i) as a separate absolute priority. We
are also clarifying how paragraph (a) works when used as a competitive
preference priority.
As to the concern about whether prioritizing new potential grantees
will successfully diversify the applicant and grantee pools, the
Department is actively engaged in outreach efforts for each of its
grant competitions, as discussed above in the response to the comment
on Sec. Sec. 75.100-75.102 and regards this new language as one tool
in the broader strategy to reach more potential applicants for its
grant programs.
Lastly, regarding the concern about prioritizing new potential
grantees in the TRIO programs, the Department considers a program's
statute and purpose, as well as the number and types of applicants in
recent competitions, when determining whether and how to use Sec.
75.225 for a particular grant competition.
Changes: We have revised paragraph (a) to clarify how new potential
grantees are prioritized through a competitive preference priority or
through an absolute priority by establishing one competition for those
applicants that meet one or more of the conditions in paragraph (b) of
this section and a separate competition for applicants that meet the
corresponding condition(s) in paragraph (c), deleted proposed

[[Page 70306]]

paragraph (c), and redesignated proposed paragraph (d) as paragraph
(c).
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, or an application that
demonstrates a rationale?
Comments: Several commenters supported the prioritization of
evidence in grant competitions, recognizing the need to prioritize
rigorous evidence, including at the ``demonstrates a rationale'' level
to support innovation. One commenter proposed to give the greatest
consideration to strong, moderate, or promising evidence. Multiple
commenters raised concerns about Sec. 75.226 and the prioritization of
evidence, asserting that the evidence level definitions are not clear
and that applicants may select evidence that meets the applicable
program requirement but does not align with the proposed project or
with local needs. These commenters suggested that if the Department
intends to replicate particular models supported by evidence, the
Department should provide a list of those models. One commenter was
concerned about how the Department intends to apply Sec. 75.226 to
specific Department grant programs, indicating that in some instances
project staff may lack the experience and expertise to conduct research
and, more generally, that a focus on research pulls resources from
direct services.
Discussion: We appreciate the thoughtful comments about Sec.
75.226. The Department has had the discretion to prioritize evidence at
the promising, moderate, and strong levels since 2013, and the proposed
update to Sec. 75.226 simply aligns this provision with the current
evidentiary definitions in the ESEA, including the fourth tier of
evidence: ``demonstrates a rationale.'' These four tiers of evidence
can be considered for use in any of the Department's programs.
Applicants should assess the evidence base in relation to their
particular local needs, the evidence base may include utilizing the
resources provided by the What Works Clearinghouse (WWC). The
Department also considers the evidence base when determining whether
and how to prioritize evidence in a grant competition and determines
the highest level of available evidence when making these decisions.
Regarding the priority of evidence in specific Department grant
programs, along with taking into consideration the current body of
evidence relating to a program, the Department also considers a
program's statute and purpose. Section 75.226 does not involve research
or specify a particular use of funds regarding research, or whether
funds are used for research or for direct services; instead, it
addresses an applicant's submission of evidence during the grant
application process to support a component of the proposed project. As
noted above, the Department has the discretion to choose whether and
how to use Sec. 75.226 in a particular grant competition. For these
reasons, it is not necessary or appropriate to add language giving
particular priority to the strong, moderate, or promising evidence
levels.
Changes: None.
Section 75.227 What procedures does the secretary use if the secretary
decides to give special consideration to rural applicants?
Comments: Multiple commenters supported the prioritization of rural
applicants, including entities that serve rural areas, stating that
Sec. 75.227 recognizes the unique needs of rural applicants and the
challenges in accessing resources for rural areas.
Two commenters expressed concerns with giving priority to an
applicant based on its locale, stating that some entities located
outside rural areas may have experience serving rural locations and
should not be excluded if they propose to serve more than solely rural
areas. They also expressed concern about prioritizing rural applicants
when many services are now provided virtually.
One commenter did not feel rural applicants in the TRIO programs
should receive priority because rural areas are already served by the
program.
Discussion: We appreciate the comments in support of Sec. 75.227.
We clarify that Sec. 75.227 does not require that an applicant be
rural; rather, the applicant must propose to serve a rural locale. With
respect to the comment regarding priority in the TRIO program, we note
that we consider a program's statute and purpose, including whether the
program serves rural areas, when determining whether and how to use
Sec. 75.227 for a particular grant competition. We are clarifying, in
paragraph (a), that in instances where we prioritize rural applicants
by establishing an absolute priority for those applicants, we also have
a separate absolute priority for applicants that are not rural
applicants, to align with the current practices of the Department. For
example, a competition including Sec. 75.227(b)(2)(i) as an absolute
priority would include Sec. 75.227(c)(2)(i) as a separate absolute
priority.
Changes: We have revised paragraph (a) to clarify how rural
applicants are prioritized through a competitive preference priority or
through an absolute priority by establishing one competition for those
applicants that meet one or more of the conditions in paragraph (b) of
this section and a separate competition for applicants that meet the
corresponding condition(s) in paragraph (c), deleted proposed paragraph
(c), and redesignated proposed paragraph (d) as paragraph (c).
Section 75.253 Continuation of a Multiyear Project After The First
Budget Period
Comments: We received two comments with recommended revisions to
Sec. 75.253 that focused on continuous improvement in making
continuation award decision for current grantees, stating that a focus
on continuous improvement and an examination of the goals and
objectives of the project can improve outcomes for the grant's target
population. Commenters specifically proposed a new paragraph that would
allow a grantee to achieve or exceed its goals, which could result in
revisions to targets.
Discussion: We appreciate the focus on continuous improvement and
the opportunity for grantees to revise targets as goals are met.
Grantees work with the Department on any proposed changes to the
approved grant application, which may include changes to targets based
on how grantees are performing relative to the goals outlined in the
approved grant application. We decline to adopt the commenters'
proposed revisions to proposed paragraphs (ii)(A) and (ii)(B) to
address changes when goals are exceeded, because paragraph (ii) applies
to a different group of grantees, specifically those who have
encountered challenges meeting their goals and are seeking approval for
changes to help them make substantial progress. We thus do not think
the proposed revisions align with the intent of paragraphs (ii)(A) and
(ii)(B).
Changes: None.
Section 75.254 Data Collection Period
Comments: We received three comments in support of the data
collection period in proposed Sec. 75.254. One commenter appreciated
the ability to use Federal funds for salaries and costs associated with
data collection requirements after the initial grant project period.
Another commenter appreciated the ability to provide the necessary
description and budget for a

[[Page 70307]]

data collection period in the initial grant application.
Discussion: We agree with the commenters on the value of a data
collection period and agree that it could be helpful for an applicant
to provide details about such a period in their initial grant
application.
Changes: None.
Section 75.261 Extension of a Project Period
Comments: None.
Discussion: After undertaking our own internal review, we have
revised the cross-reference in proposed Sec. 75.261(c) to read
``(b)(4)(ii)'' to align with current Department practices. This makes
clear that the waiver request in Sec. 75.261(c) is applicable to
paragraphs (b)(4)(ii)(A), (b)(4)(ii)(B), and (b)(4)(ii)(C).
Changes: We have revised the cross-reference in Sec. 75.261(c) to
read ``paragraph (b)(4)(ii).''
Section 75.590 Grantee Evaluations and Reports
Comments: We received multiple comments in support of the proposed
addition of paragraph (c) in Sec. 75.590, which allows the Secretary
to require an independent evaluation and make reports and data publicly
available. The commenters appreciated the effort to advance evidence by
sharing data and evaluations, and one commenter especially appreciated
the use of ERIC to reduce the public's burden finding published
evaluation results.
One commenter, in response to proposed Sec. 75.590(c) requested
clarity on the meaning of ``independent evaluation'' and requested that
the Department require rigorous evaluations proposed under paragraph
(h) of Sec. 75.210 (``quality of the project evaluation or other
evidence-building'') be posted to ERIC.
Two commenters had privacy concerns about making data available to
third-party researchers under proposed Sec. 75.590(c)(3). One
commenter felt LEAs might limit their participation in studies if they
required sharing data about students. The second commenter felt the
phrase ``consistent with applicable privacy requirements'' was not
specific enough and should take into consideration other legal and
privacy concerns, such as the Federal Policy for the Protection of
Human Subjects and institutional review board policies, as well as
terms established by the provider of the data.
Lastly, two commenters recommended that the Department set up a
system, perhaps through the WWC, to manage these data sets, similar to
how the IES makes data available from the National Center for Education
Evaluation and Technical Assistance evaluations.
Discussion: We appreciate the support for proposed Sec. 75.590(c)
and agree that it is valuable to share project evaluations and data,
including through ERIC as a central resource.
As for the meaning of ``independent evaluation'' under Sec.
75.590(c), these final regulations add a definition in Sec. 77.1(c).
The definition allows different types of entities or units of an
organization to conduct the evaluation, provided they are not directly
involved with the project implementation. We appreciate the commenter's
recommendation that rigorous evaluations proposed under paragraph (h)
(``quality of the project evaluation and evidence-building'') in Sec.
75.210 be posted to ERIC and will consider how to use the options
available under Sec. 75.590 when developing an NIA for a grant
competition.
With respect to commenters' privacy concerns about Sec.
75.590(c)(3), the Department's Public Access Plan takes data privacy
into account. <a href="https://ies.ed.gov/funding/pdf/EDPlanPolicyDevelopmentGuidanceforPublicAccess2024.pdf">https://ies.ed.gov/funding/pdf/EDPlanPolicyDevelopmentGuidanceforPublicAccess2024.pdf</a>. Specifically,

[t]here are circumstances, such as when a State or Federal law
does not allow student data to be further disclosed, where
investigators will not be able to share their complete data set.
However, [the Department] expects those data not restricted by law,
including primary data collected by the project or extant data
obtained from a private source, to be shared at the time of initial
publication of the findings or within a certain time period
following award close-out, whichever occurs first, in machine
readable formats. As with publications, these data should be made
available to the public without charge and with accompanying
metadata to facilitate discoverability and re-use (Public Access
Plan, section 3.0, page 6).

We agree that Sec. 75.590(c)(3) could further specify privacy
requirements and have added confidentiality language that is
conceptually similar to the commenter's proposal and mirrors language
in the Public Access Plan.
We decline commenters' request to establish a Department repository
for data, because, as set forth in the Public Access Plan, other
entities are developing plans to share data in public repositories that
align with the characteristics described in the National Science and
Technology Council document entitled ``Desirable Characteristics of
Data Repositories for Federally Funded Research'' whenever feasible.
<a href="https://www.whitehouse.gov/wp-content/uploads/2022/05/05-2022-Desirable-Characteristics-ofData-Repositories.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/05/05-2022-Desirable-Characteristics-ofData-Repositories.pdf</a>.
Changes: We have revised Sec. 75.590(c)(3) to ensure that the data
from the independent evaluation are made available to third-party
researchers consistent with the requirements in 34 CFR part 97,
Protection of Human Subjects, and other applicable laws.
Section 75.591 Federal Evaluation; Cooperation by a Grantee
Comments: Three commenters had concerns about the proposed
revisions to Sec. 75.591. One commenter recommended clarifying that
the examples provided in the proposed revisions are illustrative and
proposed adding language to clarify that there may be other activities
a grantee would be expected to undertake as part of a Federal
evaluation. Another commenter was concerned about increased burden on
grantees to participate in a Federal evaluation and about the ability
to recruit LEAs and other entities to participate in grants where there
is such a requirement. The commenter also was concerned that ``pilot''
studies would have limited ability to meet WWC standards, and found the
use of ``if required'' and ``must'' in paragraph (b) to be
contradictory. The third commenter stated that the TRIO programs are
expressly prohibited from recruiting ``additional students beyond those
the program or project would normally serve,'' which the commenter
interpreted to prohibit the random selection of a subset of subgrantees
for pilot projects contemplated in paragraph (b) with respect to the
TRIO programs.
Discussion: We appreciate the concerns raised about the revisions
to proposed Sec. 75.591.
We agree with the commenter's suggestion that paragraphs (a) and
(b) should be presented as a non-exhaustive list of required evaluation
activities and accept the commenter's proposed revision.
Not all programs or grantees will involve a Federal evaluation. We
consider program statutes and purposes, including statutory
requirements to conduct a program-level evaluation, when determining
which programs and grantees should participate in a Federal evaluation.
We also consider the Department's Learning Agenda, which sets forth six
focus areas for evidence building over four years to strengthen the
Nation's education system. <a href="https://ies.ed.gov/ncee/pdf/ED_FY22-26_Learning_Agenda_v2.pdf">https://ies.ed.gov/ncee/pdf/ED_FY22-26_Learning_Agenda_v2.pdf</a>. Because not all programs and grantees will
participate in a Federal evaluation,

[[Page 70308]]

proposed Sec. 75.591(b) included both ``if required'' and ``must.''
However, for streamlining with the introductory paragraph, which
already includes the phrase ``if requested by the Secretary,'' we are
removing the phrase ``if required by the Secretary'' at the beginning
of paragraph (b).
We also recognize that there are many types of evaluations and that
the randomized controlled trial referenced in paragraph (b) may not be
the appropriate type of evaluation for all programs. We take this point
into consideration, among other factors, when determining when and how
to evaluate a Federal program. Where a randomized controlled trial
might be appropriate, however, it is important that an applicant be
aware in advance and can recruit enough sites to allow the Department
to randomly select a subset for the purposes specified in paragraph
(b).
Additionally, we recognize that not all programs that will
participate in a Federal evaluation will have a program statute that
requires such participation, and we are removing this language to align
with current Department practices.
Changes: We added ``among other types of activities'' to the
introductory language of Sec. 75.591 and removed the ``in accordance
with program statute'' language. We also removed the phrase ``if
requested by the Secretary'' from the beginning of proposed Sec.
75.591(b).
Section 75.600-75.618 Construction
Comments: We received multiple comments related to the proposed
revisions to the construction regulations in Sec. Sec. 75.600-75.618.
One commenter urged the Department to consult with State educational
agencies (SEAs) and LEAs before finalizing these sections of EDGAR,
asserting that proposed Sec. Sec. 75.611 and 76.600 do not recognize
the distinction between direct grant programs and state-administered
programs. Regarding the application of Sec. Sec. 75.600-75.618, the
commenter requested that the Department consider existing paperwork
related to construction before requiring any new reporting, citing 2
CFR 200.329(d) of the Uniform Guidance.
One commenter had concerns that proposed Sec. 75.602(a)(1) could
inhibit innovative building practices by just focusing on meeting
building codes and not considering other concepts such as net zero
energy buildings. The commenter proposed revisions to focus on green
building practices.
Two commenters expressed concerns about the proposed changes to
Sec. 75.606(b)(3) and (b)(5) regarding the recording of a Federal
interest on real property and annual reporting on the status of real
property. The commenters raised concern about the administrative burden
of this recording and reporting when there are improvement and minor
updates to real property. One commenter cited a lack of consistency in
how ``real property acquisition'' is defined, including between the
Department and OMB (as shown on OMB Standard Form 424D, for example).
The commenter noted that the recording requirements of other agencies
are not as extensive as the Department's and they allow recording to be
forgone on a case-by-case basis where the Federal investment is minor.
The commenter also requested less frequent reporting in Sec.
75.606(b)(5), which the commenter asserted would be more consistent
with OMB and other agencies. The commenter proposed these revisions to
support a focus on green building efforts, encouraging the
modernization of school buildings, and consideration of life-cycle
costs in addition to upfront costs.
One commenter proposed specific edits to Sec. 75.612 regarding
mitigating flood hazards and flooding risks, noting that schools often
serve as community shelters during severe weather.
One commenter recommended that Sec. 75.616 include additional
language to cover subsequent updates to the ASHRAE standards; the
commenter also proposed language in paragraph (a) on life-cycle costs
that take into consideration costs associated with building beyond
initial construction and the costs associated with educating the
community about the building efforts, which the commenter suggested be
capped at 0.5%.
One commenter recommended revisions to Sec. 75.618 to allow a
grantee to ``use additional standards and best practices to support
health and wellbeing of students and staff.'' The commenter indicated
that, because standards are often updated more frequently than
regulations, it would be beneficial to allow grantees, and LEAs in
particular, to utilize standards when making health and safety
determinations for their population.
Discussion: We recognize the importance of working with entities
impacted by these regulations, including States and LEAs, and the
public comment period provided a valuable opportunity for these
entities to provide their perspectives. We also appreciate the concerns
about the potential burden of any additional reporting for grantees.
With respect to commenters' concerns about the scope of proposed Sec.
75.606(b), we note that Sec. 75.606(b) is specifically about the
acquisition of real property and construction, and we included a
definition for ``construction'' in Sec. 77.1(c). With respect to
potential administrative burden, we note that the Federal interest
recording and real property reporting requirements are not new, and
they are driven by the Uniform Guidance. When funds are used for
construction, many different existing requirements are triggered,
including the recording and reporting on real property improvements or
acquisition.
The definition of ``Federal interest'' and the annual reporting
requirement that is currently in 2 CFR 200.330 was originally in 2 CFR
200.329 when the Uniform Guidance was first adopted by many agencies,
including the Department. The Uniform Guidance provisions apply to all
new Department grant awards and non-competing continuations made on or
after December 26, 2014, and include requirements around reporting on
real property.
The Department's requirements are consistent with the Uniform
Guidance, and the Department cannot speak to the practices of other
agencies. We are adding introductory language to Sec. 75.606(b)(3) to
make clear that any recording of Federal interest must be in accordance
with agency directives, to account for any program-specific directives
that may impact the recording of Federal interest.
Regarding the comments and proposed edits to Sec. Sec. 75.602,
75.612, 75.616, and 75.618 related to green building practices and
flood hazards, and energy conservation, we recognize the importance of
considering flood hazards, green building practices, life-cycle costs
in building, and educating the community around construction efforts.
We include the proposed changes to Sec. 75.612 regarding flood hazards
and are including additional, relevant Executive orders. Additionally,
related to flood hazards, the Federal Emergency Management Agency's
``Guidelines for Implementing Executive Order 11988, Floodplain
Management, and Executive Order 13690, Establishing a Federal Flood
Risk Management Standard and a Process for Further Soliciting and
Considering Stakeholder Input'' includes information related to flood
risk guidance that we note here for consideration. While we decline to
require such measures due to potential costs to grantees, we agree that
many of the commenters' suggestions would add value in the construction
process and have added many of them as options in the provisions to
which they apply, as set forth in the ``Changes'' section

[[Page 70309]]

below. Given that community education is optional, it is not necessary
to include the commenter's suggested percentage limit on such costs.
We appreciate the interest in avoiding the need to update EDGAR
when the ASHRAE standards are updated, but because ASHRAE is
incorporated by reference in EDGAR, the specific version must be cited,
which the Department will update if the ASHRAE standards are revised.
Lastly, we reviewed the construction sections for clarity and are
making revisions to streamline the language, such as changing ``made a
determination on the specifications'' to ``approved''.
Changes: We are changing ``made a determination on the
specifications'' in Sec. 75.601(b) to ``approved'' and ``providing
approval of the final working specifications of'' in Sec. 75.602(c) to
``approving''. We are adding three new paragraphs to Sec. 75.602(b)
that allow grantees developing a construction budget to include funds
for energy, HVAC, and water systems and training on their use; life-
cycle cost analysis; and school and community education about the
project. We are revising Sec. 75.606(b)(3) to make clear that the real
property recording requirement accounts for this agency's directives.
We are revising Sec. 75.612 to include new paragraphs that require
grantees to consider flood hazards and risks in planning a construction
or real property project and reference two additional Executive orders.
We are changing ``applicant'' in Sec. 75.614(b)(1) to ``grantee.'' We
are adding a new sentence to Sec. 75.616(a) that allows grantees to
consider life-cycle costs and benefits of certain energy projects. We
are adding a new Sec. 75.618(b) that allows a grantee to consider
additional standards to support health and wellbeing.
Section 75.623 Public Availability of Grant-Supported Research Articles
Comments: Three commenters expressed support for the proposed
addition of Sec. 75.623, with one commenter appreciating the easier
access to federally funded research and another commenter highlighting
paragraphs (a) and (c) and supporting alignment with IES practices and
making grant-supported research publications accessible. One commenter
recommended aligning the timeline in Sec. 75.623(c) with the Public
Access Plan with respect to when IES will make peer-reviewed scholarly
articles available in ERIC. The commenter also recommended a new
paragraph (e) requiring grantees to make ``scientific data'' available.
Discussion: We appreciate the support for proposed Sec. 75.623 and
agree that it is valuable to make grant-supported research publications
accessible. We also agree that the timing in Sec. 75.623 should align
with the Public Access Plan and have revised Sec. 75.623(c)
accordingly. Likewise, we agree with the commenter's suggestion to make
``scientific data'' from Department grants publicly available, and
added a new paragraph (e) to this effect as well as a definition of
``scientific data'' in Sec. 77.1(c) that aligns with language in the
Public Access Plan.
Changes: We aligned the timing in Sec. 75.623(c) to the language
in the Public Access Plan, added a paragraph (e) that requires
scientific data to be made available ``consistent with the requirements
in 34 CFR part 97, Protection of Human Subjects, and other applicable
laws,'' and added a definition of scientific data to Sec. 77.1(c).
Section 75.708 Subgrants
Comments: We received one comment on Sec. 75.708, seeking
confirmation that a contract entered into by a grantee is different
than a subgrant awarded by the grantee and seeking clarification about
the contract competition process.
Discussion: Final Sec. 75.708 clarifies how the Secretary
authorizes subgrants and that contracts are an option when subgranting
is not allowed. We confirm that a contract and a subgrant (subaward)
are distinct, and the differences between the terms are reflected in
their respective definitions in Sec. 77.1(b). A contract is ``a legal
instrument by which a recipient or subrecipient purchases property or
services needed to carry out the project or program under a Federal
award.'' 34 CFR 77.1(b) and 2 CFR 200.1. A subgrant is an award by a
grantee to a subgrantee to ``to carry out part of a Federal award
received by the [grantee].'' 34 CFR 77.1(b) and 2 CFR 200.1. The
procurement requirements a grantee must follow to enter into a contract
are set out in 2 CFR 200.317 through 200.327.
Changes: None.
Section 75.720 Financial and Performance Reports
Comments: Multiple commenters opposed the proposed revisions to
Sec. 75.720. The commenters also shared the concern that reports,
especially financial reports, contain proprietary information. One
commenter expressed concern about the administrative costs of preparing
reports for public posting and the potential insufficiency of funds to
cover such costs. Another commenter was concerned that making the
reports publicly available could negatively influence peer reviewers
who could access the reports when reviewing applications for a new
award.
One commenter proposed revising paragraph (a) to incorporate the
theme of continuous improvement.
Discussion: We appreciate the concerns raised by the commenters
about proprietary information in financial and performance reports and
have included language to address these concerns that mirror language
included in NIAs regarding proprietary ``business information.'' We
note that the Department will decide which programs are subject to this
additional posting requirement in paragraph (d), taking into account
the costs and benefits of posting within a particular program and will
clarify the allowability of funds to pay for any additional posting.
With respect to the concern that peer reviewers might be influenced
by publicly available performance reports, peer reviewers receive
training to only review materials in the submitted grant application,
and we will continue to emphasize this point. We thus decline to
explicitly address this concern in Sec. 75.720.
Given that Sec. 75.720 cross-references defined types of reports
in the Uniform Guidance, we do not think it is necessary to include
suggested edits related to continuous improvement beyond the approved
types of reporting from the Uniform Guidance.
Changes: We have added language to Sec. 75.720(d) about requesting
confidentiality of ``business information'' to allow for its
protection.
Section 75.732 Records Related to Performance
Comments: We received two comments regarding Sec. 75.732 with
proposed revisions to this section as well as a recommendation to
create a new parallel Sec. 76.732 in part 76 so that this provision
also applies to State-administered grant programs. The commenters
requested that we amend Sec. 75.732(b) to use performance records to
inform continuous improvement.
Discussion: We appreciate and agree with the focus on continuous
improvement, as informed by performance records, and agree that it is
appropriate to adopt a similar provision for State-administered grant
programs in part 76.
Changes: We have added a new paragraph (b)(2) to Sec. 75.732 that
requires grantees to use performance reports to inform continuous
improvement, and

[[Page 70310]]

added a new Sec. 76.732 that mirrors Sec. 75.732.

Part 76--State-Administered Formula Grant Programs

Section 76.50 Basic Requirements for Subgrants
Comments: One commenter was generally supportive of the proposed
changes to Sec. 76.50 but requested additional clarification on: (1)
whether States may determine which entities are eligible for subgrants
when the program statute is silent; (2) how, if at all, subgrants the
State chooses to make interact with grant formulas that determine the
amount of Federal funds that the State must subgrant; and (3) whether
the proposed regulations allow subgrantees to make their own subgrants.
Another commenter strongly opposed the proposed changes to Sec. 76.50
that would clarify States' ability to make subgrants, and allow States
to authorize a subgrantee to 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. The commenter asserted that this proposed
revision would create additional complications for States, requiring
them to train and oversee subgrantees on how to make and monitor
subgrants.
Discussion: We appreciate the commenter's suggestions and agree
that additional clarity would be useful. We clarify that a State may,
but is not required to, determine eligible subgrantees if the
applicable statutes and regulations do not specify them, so long as the
applicable statute, regulations, or terms and conditions of the grant
award do not prohibit subgranting. We also clarify that no subgrant a
State chooses to make may change the amount of Federal funds for which
an entity is eligible through a formula in the applicable statute or
regulation. That is, any subgrant a State chooses to make would be in
addition to the funds a subgrantee already receives by formula.
Finally, we note in response to the commenter's question, that under
Sec. 76.50(b)(3), a State may authorize a subgrantee to make
subgrants, unless prohibited by their authorizing statutes,
implementing regulations, or the terms and conditions of their awards.
We appreciate the concerns raised about how the potential for
additional subgrants could require additional State oversight and
training. This provision provides States with appropriate flexibility
to implement grants in a manner most suitable to their circumstances,
by permitting, but not requiring, the State to make subgrants.
Accordingly, a State could avoid any additional training and oversight
if the State agency elects not to award subgrants, except in those
programs where subgranting is required by statute or regulations.
However, when a State elects to engage in subgranting, or is required
to do so, it is the State's responsibility as a Federal grantee
pursuant to 2 CFR 200.332 to conduct oversight of the subgrantee to
ensure Federal requirements are satisfied. Section 76.50(c) simply
reminds grantees of those Federal requirements at 2 CFR 200.332 and
does not impose additional oversight requirements on the State. These
changes will ensure common standards across programs when applicable
statutes, regulations, or the terms and conditions of a grant award are
silent regarding subgrants. Even if the statute or regulations are
silent, the Department may prohibit subgranting through the terms and
conditions of a grant award, as appropriate given the nature of the
program and its requirements. These provisions give both the Department
and the State sufficient authority to ensure subgranting occurs only
when appropriate.
Changes: We have amended Sec. 76.50(b)(2) to specify that
applicable statutes or regulations determine eligible subgrantees and
that States make such determination if not addressed in applicable
statutes or regulations. In addition, we made a technical edit to Sec.
76.50(d) to add the words ``terms and'' to make clear that the
Department may prohibit subgranting through the terms and conditions of
a grant award. This phrase is consistent as that used in Sec. 76.50(b)
and is needed to ensure clarity and consistency. Last, we have added a
new paragraph Sec. 76.50(e) to clarify that receipt of a subgrant a
State chooses to make does not change the amount of Federal funds for
which an entity is eligible through a formula in applicable statute or
regulation.
Section 76.101 State Plans in General
Comments: Two commenters recommended adding an additional paragraph
to Sec. 76.101 to require LEA subgrant applicants to focus on the use
of research, data, information learned from engagement, and continuous
improvement efforts to inform program implementation. The comments
aligned with the commenters' broader focus on continuous improvement
throughout EDGAR.
Discussion: We appreciate the effort to infuse continuous
improvement throughout EDGAR. We are adding language to Sec. 76.101 to
note ways States may consider continuous improvement in their plans.
The Department can work with States to understand this new language;
however, we are not adding language to Sec. 76.301 regarding LEA
subgrant applications since those plans go directly to States, rather
than the Department, though nothing in our regulations limits a State's
ability to work with subgrantees on continuous improvement.
Changes: We are adding language to 76.101(a) to acknowledge that
continuous improvement may help States use their State plans to meet
program objectives.
Section 76.140 Amendments to a State Plan
Comments: One commenter raised the concern that while the proposed
revisions to Sec. 76.140 address how the Secretary can streamline the
process for amendments to State plans, it does not discuss any
streamlining of the approval process. Specifically, the commenter
proposed revisions to paragraph (c) to incorporate the submitting and
approving of amendments, and the addition of a new paragraph (d) around
exceptions to the approval process, including expedited approval.
Discussion: The Department appreciates the commenter's recognition
for why amendments to State plans might follow different procedures
from the original State application. As such, we accept the proposed
edits to paragraph (c) around the submission of amendments and the
requirements associated with a State-administered formula program.
States, when submitting an amendment, may request expedited approval;
however, when and how the Department is able to expedite approval is
case-specific and, as such, we do not think it necessary to expand
beyond what the normal procedural rules would be and decline to add a
new paragraph (d).
Changes: We have revised paragraph (c) in Sec. 76.140 to clarify
that the Secretary may prescribe different procedures for submitting
amendments and to refer to the requirements as well as the
characteristics of a particular State-administered formula program.
Section 76.301 Local Educational Agency Application in General

[[Page 70311]]

Comments: Two commenters recommended adding an additional paragraph
to Sec. 76.301 to focus on the use of research, data, information
learned from engagement, and continuous improvement efforts to inform
program implementation. The comments aligned with the commenters'
broader focus on continuous improvement throughout EDGAR.
Discussion: We appreciate the effort to infuse continuous
improvement throughout EDGAR but decline to adopt the commenter's
recommendation because Section 76.301 is about the application of GEPA
section 442 to LEAs; it is not about the contents of a subgrant
application submitted by an LEA, which is driven by the applicable
program statute. However, there is nothing that prohibits a State from
requesting that an LEA seeking a subgrant provide information about the
research, data, information learned from engagement, and continuous
improvement efforts to inform program implementation.
Changes: None.
Section 76.500 Constitutional Rights, Freedom of Inquiry, and Federal
Statutes and Regulations on Nondiscrimination
Comments: None.
Discussion: Based upon our own internal review, we have revised
Sec. 76.500 to correct the section heading, which was inadvertently
changed in the NPRM. The section heading should read the same as the
current language in EDGAR: ``Constitutional rights, freedom of inquiry,
and Federal statutes and regulations on nondiscrimination.'' The
section heading was inadvertently modified in the NPRM, when the
Department's only proposed changes to Sec. 76.500 should have been to
paragraph (a).
Changes: We have corrected the heading to section 76.500 in the
final regulations.
Section 76.560 Approval of Indirect Cost Rates
Comments: One commenter appreciated the Department's efforts to
align the indirect cost sections in EDGAR with the Uniform Guidance.
One commenter requested that the Department clarify the role SEAs play
in facilitating indirect cost rate determinations for non-LEA
subgrantees that do not have established rates. The commenter expressed
particular interest in the relationship between proposed Sec.
76.561(a), which clarifies that the Department negotiates indirect cost
rates for non-LEA subgrantees when the Department is the cognizant
agency, and 2 CFR 200.332(a)(4)(i), which describes the role of
passthrough entities in identifying rates for subrecipients without
one.
Discussion: OMB has designated the Department as the cognizant
agency for indirect costs for SEAs and LEAs (see 2 CFR Appendix-V-to-
Part-200 F.1. ``Department of Education''). Under Sec. 76.561(b), the
Department has delegated to SEAs the responsibility for approving the
indirect cost rates for LEAs on the basis of a plan approved by the
Department. For non-LEA subgrantees that do not have direct Federal
awards, the indirect cost review process is addressed in the Uniform
Guidance. Specifically, the Uniform Guidance provides the three-step
process for pass-through entities and subrecipients to identify and
review indirect cost rates. Under 2 CFR 200.332(a)(4)(i), if the
subrecipient has an approved allowable indirect cost rate for the
award, then the subrecipient may use the indirect cost rate. Under 2
CFR 200.332(a)(4)(i)(A), if no indirect cost rate is available, the
pass-through entity is to collaboratively negotiate an indirect cost
rate using the Federal regulations. Finally, under 2 CFR
200.332(a)(4)(i)(B), the entity may elect the de minimis indirect cost
rate if the program does not require special indirect cost rates such
as restricted indirect cost rates (Sec. 75.563 and Sec. 76.563) or
training indirect cost rates (Sec. 75.562). Consistent with 2 CFR
Appendix-IV-to-Part-200 2.a, if the subrecipient does not receive any
funding from any Federal agency, the pass-through entity is responsible
for the negotiation of the indirect cost rates in accordance with 2 CFR
200.332(a)(4).
The Department's Indirect Cost Division is available to provide
technical assistance and guidance on issues relating to cognizance of
direct recipients and pass-through entity responsibilities. Additional
information is available at: <a href="https://www2.ed.gov/about/offices/list/ofo/indirect-cost/responsibility.html">https://www2.ed.gov/about/offices/list/ofo/indirect-cost/responsibility.html</a>.
Changes: None.
Section 76.650-76.677 Participation of Students Enrolled in Private
Schools, Equitable Services Under the Cares Act, and Procedures for a
Bypass
Comments: A couple of commenters opposed removing Sec. Sec.
76.650-76.662 and instead proposed that the Department update these
sections to be consistent with current laws. They stated that it is
appropriate to have consistent default standards for providing services
and assistance to students and educators in private schools if Congress
authorizes new grant programs outside of programs such as those under
the Individuals with Disabilities Education Act or ESEA, for which
program-specific regulations exist.
A few other commenters expressed concern that the existing
requirements in Sec. 76.650 are not consistently implemented or
monitored. These commenters urged emphasis on grantee and subgrantee
consultation with representatives of students enrolled in private
schools by having Sec. 76.650 reference proposed Sec. 299.7(a)(1)(i).
Discussion: We agree with the commenters that retaining equitable
services requirements in part 76 is useful for potential future
programs. Accordingly, we will not remove Sec. Sec. 76.650-76.662. As
a result, we will also not change the cross-references in Sec. 75.119,
which will continue to refer to Sec. 76.656, and Sec. 75.650, which
will continue to refer to Sec. Sec. 76.650-76.662. Similarly, we will
not delete paragraph (c) of Sec. 299.6, which cross-references
Sec. Sec. 75.650 and 76.650-76.662.
At the same time, we also agree with commenters about the value of
additional clarity regarding the consultation requirements outlined in
Sec. 299.7. Accordingly, we are including a cross-reference to final
Sec. 299.7 in Sec. 76.652.
Changes: We are retaining Sec. Sec. 76.650-76.651 and 76.653-
76.662 as they exist in current regulations, with minor updates for
clarity and accuracy, rather than making the changes proposed in the
NPRM. Since we are not changing Sec. 76.656, we will also not change
the cross-reference in Sec. 75.119, which will continue to refer to
Sec. 76.656. We are revising Sec. 76.652 to refer to the consultation
requirements in final Sec. 299.7.
Section 76.707 When Obligations Are Made
Comments: A few commenters proposed that the Department consider
changes to Sec. 76.707 to align fund obligation standards for personal
services provided by an employee of the State or a subgrantee with
those applicable to contractors. Two commenters noted that it is
important for State and subgrantee personnel to be allowed to provide
oversight beyond the period during which the funds are available for
obligation. They also noted that recently proposed updates to the
Uniform Guidance (since finalized) would allow payment of closeout
costs using the applicable Federal financial assistance, which would
apply to employees, contractors of grantees, and subgrantees.

[[Page 70312]]

Discussion: We understand the complexities of the issues and
appreciate the views expressed by the commenters. However, the changes
to the Uniform Guidance do not alter the time period in which
obligations are allowable under each appropriation in concert with
section 421 of the General Education Provisions Act and as reflected in
Sec. 76.709. Because we did not propose substantive changes in
Sec. Sec. 76.707 or 76.709 in the NPRM, we decline to make them at
this time. The Department will collaborate with grantees in
implementing the Uniform Guidance.
Changes: None.
Section 76.720 State Reporting Requirements
Comments: One commenter proposed including ``continuous
improvement'' as part of State reporting requirements, consistent with
the commenter's interested in embedding continuous improvement efforts
throughout EDGAR.
Discussion: We recognize the importance of continuous improvement
and agree with the connection of continuous improvement in the context
of State reporting requirements. Specifically, it is helpful to clarify
that State reporting requirements in Sec. 76.720 are inclusive of
reporting on monitoring and continuous improvement.
Changes: We have added ``continuous improvement'' to the State
reporting requirements.
Section 76.722 Subgrantee Reporting Requirements
Comments: One commenter proposed requiring subgrantees to submit
reports to assist the State and the subgrantee in engaging in
``periodic review and continuous improvement'' of their respective
plans, in keeping with the commenter's focus on continuous improvement
efforts.
Discussion: Similar to the discussion above of comments for Sec.
76.720, we recognize the value of continuous improvement efforts for
both the State and the subgrantee and have modified Sec. 76.722
accordingly.
Changes: We are revising Sec. 76.722 to require subgrantees to
submit reports to assist the State and the subgrantee in engaging in
``periodic review and continuous improvement'' of their respective
plans.

Part 77--Definitions That Apply to Department Regulations

Section 77.1 Definitions That Apply to All Department Programs
Comments: Two commenters expressed general support for the proposed
evidence definitions in Sec. 77.1, with one commenter specifically
supporting the proposed definitions for the tiers of evidence. The
commenter stressed that the Department should require grantees to use
the most rigorous evidence available and suggested that evaluations be
designed to meet the ``moderate evidence'' or ``strong evidence''
standards, while recognizing the importance of ``promising evidence''
to help build an evidence base.
One commenter recommended the Department consider using the
definitions for ``evidence-based program'' and ``evidence-building
program'' that the nonprofit group Results for America has developed in
consultation with its stakeholders, which the commenter asserted would
improve upon the ESEA definitions. The same commenter recommended
deleting the option under ``moderate evidence'' to use a study that
includes ``20 or more students or other individuals,'' concerned that a
study of this size is unlikely to meet a rigorous evidence standard.
One commenter recommended that the definition of ``demonstrates a
rationale'' require that relevant outcomes relate to policy or
practice, to narrow the focus to outcomes of most interest to
policymakers. Another commenter recommended expanding the definition of
``demonstrates a rationale'' to include the second part of the ESEA
section 8101 definition of the term, focused on learning from
approaches implemented under the project.
One commenter appreciated that the proposed definition of ``peer-
reviewed scholarly publication'' aligns with the Department's Public
Access Plan, and that proposed Sec. 75.623 requires peer-reviewed
scholarly publications to be made available in ERIC.
Lastly, one commenter proposed a definition of ``continuous
improvement,'' given its frequent use throughout EDGAR.
Discussion: We appreciate the support for the evidence definitions
and recognize their importance for articulating evidentiary
expectations for both applications and evaluations designed to build
evidence, including more rigorous evaluations designed to meet the
standard of ``moderate evidence'' or ``strong evidence.'' The
Department considers the evidence base as well as the purpose of the
grant program when determining how to include evidence-building and
evaluation in a grant competition, which includes an assessment of the
appropriate level of rigor for project evaluations.
We appreciate the commenter's interest in including the definitions
of ``evidence-based program'' and ``evidence-building program'' and
appreciate the efforts of the stakeholders involved in the development
of those definitions. While those definitions are in some ways aligned
with the Department's approach to evidence-based policymaking, they
differ enough from the tiered evidence framework in the ESEA and EDGAR
that include four tiers of evidence, that we decline to revisit our
approach in this rulemaking.
We decline the commenter's request to strike certain language in
paragraph (ii) of the definition of ``moderate evidence'' related to a
sample size of 20 students or individuals, because it is important that
EDGAR's evidence definitions align with WWC Standards. The low sample
size aspect of the definition ensures that the WWC Standards are
appropriately inclusive for studies related to students with
disabilities, by allowing for studies involving low-incidence
populations in the context of a systematic review of an intervention
report.
We decline to adopt the recommended additions to the definition of
``demonstrates a rationale,'' because the proposed revisions are
intended to align EDGAR's definition with the ESEA definition to the
extent practicable, and the section 8101 definition does not
incorporate a focus on ``policy or practice.'' We also decline the
suggestion to add the second part of the ESEA definition, which
requires a showing of ``ongoing efforts to examine the effects of [an]
activity, strategy, or intervention,'' because applicants that are
required to demonstrate a rationale in their applications have not yet
implemented their projects. We also decline to adopt the second half of
the ESEA definition of ``demonstrates a rationale'' for consistency
with the other tiers of evidence, none of which requires ongoing
evaluation efforts. We note that other parts of EDGAR, such as the
selection criteria in Sec. 75.210, incorporate ongoing efforts to
evaluate impact. See, e.g., Sec. 75.210(h)(2)(ix) (the extent to which
the evaluation is designed to meet WWC standards with or without
reservations); and Sec. 75.210(h)(2)(x) (the extent to which the
methods of evaluation include an experimental study, a quasi-
experimental design study, or a correlational study with statistical
controls for selection bias).
We appreciate the support for the proposed definition of ``peer-
reviewed scholarly publication'' and agree that it's important for
EDGAR, and this definition, to align with the

[[Page 70313]]

Department's Public Access Plan, cited earlier.
We agree that, given the frequency of its use throughout EDGAR, it
is appropriate to define ``continuous improvement.'' We are adding a
definition of ``continuous improvement'' that aligns with the
Department's evidence framework in EDGAR and that is consistent with
the Department's discussion of continuous improvement in other
resources, including the Department's Non-Regulatory Guidance: Using
Evidence to Strengthen Education Investments (September 28, 2023).
<a href="https://www2.ed.gov/fund/grant/about/discretionary/2023-non-regulatory-guidance-evidence.pdf">https://www2.ed.gov/fund/grant/about/discretionary/2023-non-regulatory-guidance-evidence.pdf</a>.
Changes: We are adding a definition of ``continuous improvement''
to Sec. 77.1.

Part 299--General Provisions

General Comments
Comments: Several commenters recommended that the regulations
emphasize the goal of reaching agreement through consultation regarding
equitable services. Commenters emphasized the importance of this being
the goal for both (1) an agency, consortium, or entity receiving funds
under an applicable program and (2) representatives of private schools.
Commenters expressed concern that the consultation requirements may not
be fully implemented in some cases or may be misunderstood to require
only a single conversation that may not amount to meaningful
consultation. Commenters also requested confirmation that failure of
both parties to have the goal of reaching agreement could be a basis
for a private school official to submit a complaint. One commenter
recommended highlighting the goal of reaching agreement in proposed
Sec. 299.12 regarding the role of the ombudsman.
Discussion: We appreciate the commenters' concerns and the
opportunity to confirm that final Sec. 299.7(b) already requires that
both parties have the goal of reaching agreement, and final Sec.
299.7(e) addresses the right of a private school official to file a
complaint. See 20 U.S.C. 7881(c)(1) and (6) (requiring timely and
meaningful consultation and the goal of reaching agreement and
providing the right to file a complaint). The final regulations also
already emphasize the ongoing nature of consultation. For example,
Sec. 299.7 describes specific points when consultation is required and
states that ``such consultation must continue throughout the
implementation and assessment of equitable services.'' Sec.
299.7(a)(2). We also note that the final regulations at Sec. 299.12
require the ombudsman to monitor and enforce all equitable services
requirements in final Sec. Sec. 299.6-299.11, which includes Sec.
299.7(b). We note, however, that while there is an existing requirement
that there be a goal of reaching agreement, there is no requirement
that agreement is ultimately reached. Accordingly, mere disagreement is
not, on its own, the basis of a complaint.
Changes: None.
Comments: Several commenters sought clarity regarding the role of
the ombudsman, specifically asking for additional detail about the
responsibilities of the ombudsman and any oversight of the person
serving in that role, but also acknowledged that such clarity likely
requires legislative, rather than regulatory, changes.
Discussion: Since the ombudsman is, by statute, an employee of the
SEA, we do not include additional specificity in this regulation.
Changes: None.
Comments: Several commenters underscored the importance of current
Sec. 299.7, which would become redesignated Sec. 299.9, and requested
additional information about how and when notice would be provided to
appropriate private school officials of the amount of funds for
educational services and other benefits that are available for eligible
private school children and their teachers and other educational
services personnel.
Discussion: The Department did not propose any changes to current
Sec. 299.7, which has been redesignated as Sec. 299.9 in these final
regulations, and it will continue in effect as written. The existing
regulations continue to require timely notice.
Changes: None.
Comments: Two commenters expressed general support for Sec.
299.16, stating it would provide clarity regarding the contents of an
SEA's written resolution of an equitable services complaint. These two
commenters offered three suggestions: (1) they pointed out that
proposed Sec. 299.16(c) should reference paragraph (h), rather than
paragraph (g) of Sec. 299.16; (2) they requested rephrasing proposed
Sec. 299.16(d) to avoid implying that the complaint resolution could
only be done by an attorney; and (3) they requested clarification in
Sec. 299.16(h) that the documents that must be paginated are only
those the SEA deemed relevant to its decision.
Discussion: We appreciate commenters' support for proposed Sec.
299.16 and agree that it will bring clarity with regard to the contents
of an SEA's written resolution of an equitable services complaint. We
further agree with commenters that Sec. 299.16(c) should reference
paragraph (h) of this section. We also agree with commenters that we
can rephrase Sec. 299.16(d) to refer to the analysis and conclusion
reached regarding requirements. Finally, we agree with commenters that
the documents requiring pagination need only be those on which the SEA
relied in making its decision, rather than every document received by
or reviewed by the SEA.
Changes: We are revising Sec. 299.16(c) to refer to ``supporting
documents under paragraph (h) of this section.'' In addition, we are
revising Sec. 299.16(d) to refer to ``analysis and conclusions
regarding the requirements'' instead of ``legal analysis and
conclusions.'' We are revising Sec. 299.16(h) to require the inclusion
of ``all documents the SEA relied on in reaching its decision,
paginated consecutively.''
Comments: Several commenters expressed concern that Sec. 299.27
related to judicial review of a bypass hearing decision does not
include a specific timeline for resolution.
Discussion: While we appreciate commenters' concerns about the
importance of timely decisions, we do not have the authority to set
timeframes for judicial processes.
Changes: None.

Other Comments

Comments: We received multiple comments with recommendations to add
new sections in part 75 and 76 that would allow for the use of grant
funds for costs associated with data and evaluation. Specifically, two
commenters recommended the creation of new Sec. 75.535 and a new Sec.
76.535 to support costs related to data and evaluation. The comments
cite OMB's proposed updates to the Uniform Guidance (since finalized),
and specifically alignment with the proposed updates to Cost Principles
in 2 CFR 200.455(c), that would allow for costs associated with data
and evaluation. Another commenter proposed a new Sec. 76.762 to allow
States or subgrantees to use funds for an evaluation, with exceptions.
Discussion: We appreciate these comments, which recognize the
importance of data and evaluation. The Department adopts the Uniform
Guidance and uses the Cost Principles in the administration of its
programs. As such, it is not necessary to include approval for use of
funds for particular activities that already are covered by the

[[Page 70314]]

Cost Principles in the Uniform Guidance, including the allowance of
funds for related evaluation costs. We discuss the allowable costs
under specific grant programs and the Cost Principles in pre-
application technical assistance and in post-award conversations with
grantees, including the update to OMB's Uniform Guidance and Cost
Principles.
Changes: None.
Comments: Two commenters recommended the creation of new Sec. Sec.
75.536 and 76.536 that would allow the use of grant funds for costs
associated with community engagement, given the focus on community
engagement in the proposed revisions to EDGAR, including the selection
criteria in Sec. 75.210.
Discussion: We agree that community engagement is important to the
success of many of the Department's grant programs. To the extent that
a program's statute and purpose already allow for funds related to
community engagement, adding new language is not necessary. The
Department will continue to review whether further expansion of
allowable costs for community engagement would be appropriate.
Changes: None.
Comments: Three commenters requested specific information related
to the Individuals with Disabilities Education Act regulations in 34
CFR part 300, specifically about State and LEA responsibilities related
to private school children, including ``child find'' requirements.
Discussion: We appreciate the concerns raised by the commenters but
note that 34 CFR part 300 is not part of the proposed updates included
in the EDGAR NPRM.
Changes: None.

Executive Orders 12866, 13563, and 14094

Regulatory Impact Analysis

Under Executive Order 12866, OIRA 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 2023 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 or communities;
(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 regulatory action is a significant regulatory action subject
to review by OMB under section 3(f) of Executive Order 12866, as
amended by Executive Order 14094. We have assessed the potential costs
and benefits, both quantitative and qualitative, of this regulatory
action and have determined that the benefits would justify the costs.
We have also reviewed these 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
(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 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 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, territorial, and Tribal governments
in the exercise of their governmental functions.

Costs and Benefits

We have reviewed the changes in these final regulations 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 changes
in these final regulations would result in a net increase in burden of
approximately $100 annually with transfers of $109.8 million per year
at a 7% discount rate or $113.9 million per year at 3% discount rate.
Most of the changes in these final regulations 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 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 below.
Unless otherwise specified, the Department's model uses mean hourly
wages for personnel employed in the education sector as reported by the
Bureau of Labor Statistics \1\ (BLS) and a loading factor of 2.0 to
account for the employer cost of employee compensation and indirect
costs (e.g., physical space, equipment, technology costs). When
appropriate, the Department identifies the specific occupation used by
the BLS in its tables to support the reader's analysis. The Department
assumes that wage rates

[[Page 70315]]

remain consistent for the duration of the time horizon.
---------------------------------------------------------------------------

\1\ U.S. Bureau of Labor Statistics, May 2023 National Industry-
Specific Occupational Employment and Wage Estimates, Sector 61--
Educational Services, <a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>
(last modified Apr. 3, 2024).
---------------------------------------------------------------------------

Changes to Sec. Sec. 75.1 and 75.200 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 the
changes may benefit the Department and general public by improving the
clarity of the regulations.
The 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.
Changes to Sec. 75.60, which 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.
Changes to Sec. 75.101, which clarify what is in a notice and an
application package, are unlikely to generate any meaningful cost and
may benefit the Department and general public by improving the clarity
of the regulations.
Changes to Sec. Sec. 75.102 and 75.104, which 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.
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.
Changes to Sec. 75.109, which 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.
Changes to Sec. 75.110, which 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.
Changes to Sec. 75.112, which allow the Secretary to require
applicants to submit a logic model or other conceptual framework, 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 or conceptual
framework for their applications and, therefore, would experience only
minimal paperwork burden associated with memorializing it in their
applications.
Changes to Sec. 75.127, which 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 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.
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.
Changes to Sec. 75.210, which would clarify word choice, update
language based on past experience in using the current selection
criteria and factors, and add additional factors such as those that
include a focus on the use of data, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Changes to Sec. 75.216, which 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.
Changes to Sec. 75.217, which 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.
Changes to Sec. 75.219, which 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.
Changes to Sec. 75.221, which 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.
Changes to Sec. 75.222, which update the mailing address for
unsolicited applications, are unlikely to generate any quantifiable
costs and may benefit the Department and general public by improving
the clarity of the regulations.
The changes to Sec. 75.225 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 change 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
revised section 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, increasing access to Federal resources and which may
serve to strengthen the quality of the applicant pool. 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 will 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.
Changes to Sec. 75.226, which 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
conceived an implicit logic model or other conceptual framework for
their applications and would, therefore, experience only minimal
paperwork burden associated with memorializing it in their

[[Page 70316]]

applications to address the requirements of the demonstrates a
rationale level of evidence.
Changes to Sec. 75.227 provide the Secretary with the authority to
give special consideration to rural applicants. The language in this
section mirrors language adopted by the Department in the
Administrative Priorities for Discretionary Grants Programs
(Administrative Priorities), published in the Federal Register on March
9, 2020 (85 FR 13640), and we are codifying this language in EDGAR. As
such, these 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.
Changes to Sec. 75.234, which 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.
Changes to Sec. 75.250, which update the heading and 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.
Changes to Sec. 75.253, which 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 in order to capture the high end of potential
costs. For each request, we assume a project director earning a loaded
wage rate of $112.81 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 (loaded wage rate of $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 (loaded wage rate of
$72.69 per hour) to review. We also assume that a Department attorney
at the GS-14/1 level (loaded wage rate of $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
$27,074 for grantees and $9,318 for the Department per year. In total,
we estimate an additional cost of $36,392 per year.
The addition of a new Sec. 75.254 gives the Secretary the
authority to approve data collection periods. The language in this
section is aligned with this previous authority under Sec. 75.250(b)
as well the Administrative Priorities and is just codifying this
language in EDGAR. As such, these 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 collect data to measure project impact.
Changes to Sec. 75.261, which 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.
Changes to Sec. 75.263, which 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.
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.
Changes to Sec. 75.590, which allow the Department to require the
use of an independent evaluation in a program and include a
confidentiality provision, 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 in Year 1.

Table 1--Annual Transfers--Changes to Sec. 75.590
------------------------------------------------------------------------
Net annual
Year transfer
------------------------------------------------------------------------
Year 1.................................................. $29,226,998
Year 2.................................................. 58,453,995
Year 3.................................................. 87,680,993
Year 4.................................................. 116,907,990
Year 5.................................................. 146,134,988
Year 6.................................................. 146,134,988
Year 7.................................................. 146,134,988
Year 8.................................................. 146,134,988
Year 9.................................................. 146,134,988
Year 10................................................. 146,134,988
Total Net Present Value (NPV), 7%....................... 770,534,217
Annualized, 7%.......................................... 109,706,738
Total NPV, 3%........................................... 970,948,946
Annualized, 3%.......................................... 113,824,837
------------------------------------------------------------------------

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.
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.
Changes to Sec. Sec. 75.600-75.615 and Sec. Sec. 75.618-75.619,
which restructure the sections on construction to improve the flow of
the information, update citations, and include green building concepts
that are optional and are for consideration in construction are

[[Page 70317]]

unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
Changes to Sec. 75.620, which 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 addition of Sec. 75.623 requires certain grantees to submit
final versions of Department-funded research publications to ERIC so
that they are publicly available, aligning with the Department's
September 2023 Plan for Public Access: Improving Access to Results of
Federally Funded Scientific Research (Public Access Plan). Given that
submission of the files would be a required grant activity, we do not
anticipate that the requirement will generate any additional costs for
grantees. To the extent that submissions would 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.
Changes to Sec. 75.700 add existing Executive orders, which
grantees must already comply with, to the list of authorities with
which grantees must comply. These changes are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Changes to Sec. 75.708, which 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.
Changes to Sec. 75.720 allow the Secretary to require grantees to
publish their annual performance reports on a public-facing website,
accounting for privacy and proprietary business information. Given that
publishing their reports would be a required grant activity, we do not
anticipate that the requirement will generate any additional costs for
grantees. To the extent that the publishing of the report would
generate additional burdens, they would likely be minimal and would be
properly considered transfers from support of other grant-related
activities. 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 a
loaded wage rate of $91.90 per hour for web developers, we estimate
that this requirement could generate transfers of approximately $46 per
year per affected grantee. In FY 2023, the Department made
approximately 9,470 grant awards. Assuming this requirement would be
used in 20 percent of those grants, we estimate total transfers of
approximately $87,124 per year.
Changes to Sec. 75.732, which includes using records for
continuous improvement, are unlikely to generate any quantifiable costs
and may benefit the Department and general public by improving the
clarity of the regulations.
Changes to Sec. 76.1, which 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.
Changes to Sec. 76.50 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 changes would likely generate cost savings for States
through the reduced burden associated with making subgrants as opposed
to contracts. However, we do not have sufficient information to
quantify this impact and did not receive public comment on the cost
savings associated with such a shift at the State level.
Changes to Sec. Sec. 76.51-76.52 and 76.100 are for clarity only.
They are unlikely to generate any quantifiable costs and may benefit
the Department and general public by improving the clarity of the
regulations.
Changes to Sec. 76.101, which 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.
Changes to Sec. 76.102, which 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.
Changes to Sec. 76.103, which 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.
Changes to Sec. Sec. 76.125-76.136, which remove references to the
Trust Territory of the Pacific Islands and make other minor updates
that better align with current statutes, are unlikely to generate any
quantifiable costs and may benefit the Department and general public by
improving the clarity of the regulations.
Changes to Sec. Sec. 76.140-76.142, which, 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 changes provide the Secretary broad flexibility to
prescribe 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 assume that the loaded wage rate is $73.18
per hour for a management analyst at the State level and $109.88 per
hour for an administrator at the State level. We further estimate that
alternative procedures that are likely to be used 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 assume that the
loaded wage rate is $161.20 per hour for a chief executive at the State
level. We further assume, based on historical averages, 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 $26,238 per
year. We also assume that the alternative procedures would reduce
burden on Federal staff \2\ by approximately 1 hour per State plan
amendment for a total Federal savings of approximately $4,150 per year.
In total, we estimate that these alternative procedures would reduce
costs by approximately $30,389 per year.
---------------------------------------------------------------------------

\2\ One GS-13/1 staff earning a loaded wage rate of $61.96 per
hour.
---------------------------------------------------------------------------

Changes to Sec. 76.260 are for clarity only. They are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.

[[Page 70318]]

Changes to Sec. 76.301, which 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.
Changes to Sec. 76.400 are for clarity only. They are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Changes to Sec. 76.401, which 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 process each
year. On average, we process approximately 10 appeals each year, with
an attorney \3\ 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 and did not receive any
public comments on the potential savings at the State level associated
with this proposed change. While this statement of uncertainty was also
included in the NPRM, we inadvertently included a benefit of $5,124 for
States in the NPRM analysis model. We correct that inclusion here by
removing that benefit from the model and reaffirm that we do not have
sufficient information to make a reliable estimate on cost savings at
the State level associated with this proposed change.
---------------------------------------------------------------------------

\3\ One GS-14/10 Federal attorney earning a loaded wage rate of
$92.18 per hour.
---------------------------------------------------------------------------

Changes to Sec. Sec. 76.500, 76.532, and 76.533 are for clarity
only. They are unlikely to generate any quantifiable costs and may
benefit the Department and general public by improving the clarity of
the regulations.
Changes to Sec. Sec. 76.560-580, 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.
Changes to Sec. 76.600 relate to updates regarding construction
regulations to align with current statutes and regulations and are
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
We are retaining Sec. Sec. 76.650-76.651 and 76.653-76.662 as they
exist in current regulations, with minor updates for clarity and
accuracy, rather than making the changes proposed NPRM, and therefore
the revisions to those sections should not generate any quantifiable
costs.
The change in Sec. 76.652 to refer to Sec. 299.7 regarding
consultation with representatives of private school students is
unlikely to generate any quantifiable costs and may benefit the
Department and general public by improving the clarity of the
regulations.
We are removing and reserving Sec. Sec. 76.670-76.677. Since the
only programs that were subject to these provisions are already subject
to bypass procedures under the ESEA, which are now spelled out in
Sec. Sec. 299.18-299.28 (see below), there should not be any
quantifiable costs to the removal of Sec. Sec. 76.670-76.677.
Changes to Sec. Sec. 76.702, 76.707-76.711, and 76.714 are for
clarity only. They are unlikely to generate any quantifiable costs and
may benefit the Department and general public by improving the clarity
of the regulations.
Changes to Sec. 76.720, which clarify continuous improvement
efforts in State reporting requirements, would not generate any
quantifiable costs and would benefit the Department and the general
public by improving the clarity of the regulations.
Changes to Sec. 76.722, which clarify periodic review and
continuous improvement efforts in subgrantee reporting requirements,
would not generate any quantifiable costs and would benefit the
Department and the general public by improving the clarity of the
regulations.
Changes to Sec. 76.732, which includes using records for
continuous improvement, are unlikely to generate any quantifiable costs
and may benefit the Department and general public by improving the
clarity of the regulations. Changes to Sec. 76.740 are for clarity
only. They are unlikely to generate any quantifiable costs and may
benefit the Department and general public by improving the clarity of
the regulations.
Changes to Sec. 76.783 indicate that a subgrantee may request a
hearing related to an SEA's failure to provide an amount of funds in
accordance with the requirements of applicable statutes and
regulations. These changes would not generate any additional costs as
this circumstance was previously contemplated in Sec. 76.401 from
which relevant provisions would be moved to Sec. 76.783 for clarity.
Changes to Sec. Sec. 76.785-76.788, and 76.900-76.901 are for
clarity only. They are unlikely to generate any quantifiable costs and
may benefit the Department and general public by improving the clarity
of the regulations.
Changes to Sec. 77.1(c), which 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.
Changes to part 79, which 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.
Changes to part 299, which 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.
New Sec. Sec. 299.16-299.17 specify what must be included in an
SEA's resolution of a complaint and a party's appeal to the Secretary
of an SEA decision. The specific elements listed in these sections are
all what a legal decision or appeal should already include (such as a
description of applicable statutory and regulatory requirements, legal
analysis and conclusions, and 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 the elements we need to issue a decision will
prevent this unnecessary delay; we do not think that the specific
elements will generate quantifiable costs, however, because, as noted
above, these are items that parties should already be including.
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
will be deleted, as previously discussed.
In total, we estimate that these final regulations will result in a
net increase in costs of approximately $100 per year with transfers of
$109.8 million per year at a 7% discount rate or $113.9 million per
year at a 3% discount rate. Of the

[[Page 70319]]

net benefit, approximately $200would 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 these final regulations. 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:

------------------------------------------------------------------------
Benefits
-------------------------------
Provision 3% discount 7% discount
rate rate
------------------------------------------------------------------------
Sec. 75.109--Reduce the number of $375 $375
paper copies of an application to be
submitted..............................
Sec. 76.140-142--Amendments to State 30,389 30,389
Plan...................................
Sec. 76.401--Disapproval of an 5,531 5,531
application............................
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Sec. 75.253--Request for (36,392) (36,392)
Reconsideration........................
------------------------------------------------------------------------
Transfers
------------------------------------------------------------------------
Sec. 75.590--Independent evaluation... 113,824,837 109,706,738
Sec. 75.720--Financial and Performance 87,124 87,124
Reports................................
------------------------------------------------------------------------

Regulatory Flexibility Act Certification

The Secretary certifies that this regulatory action would not have
a significant economic impact on a substantial number of small
entities. The Small Business Administration Size Standards for
``proprietary institutions of higher education'' are set out in 13 CFR
121.201. ``Nonprofit institutions'' are defined as small entities if
they are independently owned and operated and not dominant in their
field of operation. See 5 U.S.C. 601(4). ``Public institutions and
LEAs'' are defined as small organizations if they are operated by a
government overseeing a population below 50,000. See 5 U.S.C. 601(5).
This final rule also applies to States. States are not small
governmental organizations.
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 Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control number assigned to the
collection of information in these final regulations at the end of the
affected sections of the regulations.
We anticipate that changes to Sec. Sec. 76.140-76.142 would reduce
State burden under existing information collection requirements by
approximately 323 hours per year (see Costs and Benefits 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; Incorporation by reference; Grant programs--education.

34 CFR Part 79

Intergovernmental relations.

34 CFR Part 299

Administrative practice and procedure; Elementary and secondary
education; Grant programs--education;

[[Page 70320]]

Private schools; Reporting and recordkeeping requirements.

Roberto J. Rodriguez,
Assistant Secretary for Planning, Evaluation and Policy Development.

For the reasons discussed in the preamble, the Secretary amends
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 also issued under 2 CFR 200.308(e)(1).
Section 75.617 also issued under 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 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 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 a period after ``assistance?)'' in paragraph (a)(7); and
0
c. 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

[[Page 70321]]

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. Revise Sec. 75.110 to 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) If the application notice establishes program performance
measurement requirements, the applicant must also describe in the
application--
(1)(i) The data collection and reporting methods the applicant
would use and why those methods are likely to yield reliable, valid,
and meaningful performance data; and
(ii) If the Secretary requires applicants to collect data after the
substantive work 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) If an application notice requires applicants to propose
project-specific performance measures, baseline data, or performance
targets, the application must include the following, as required by the
application notice:
(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) Baseline data. (i) Why each proposed baseline is valid and
reliable, including an assessment of the quality data used to establish
the baseline; or
(ii) If the applicant has determined that there are no established
baseline data for a particular performance measure, an explanation of
why there is no established baseline and of how and when, during the
project period, the applicant would establish a valid baseline for the
performance measure.
(3) Performance targets. Why each proposed performance target is
ambitious yet achievable compared to the baseline for the performance
measure and when, during the project period, the applicant would meet
the performance target(s).

0
16. Amend Sec. 75.112 by:
0
a. Revising the section heading and paragraph (b);
0
b. Adding paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the
section.
The revisions and addition read as follows:

Sec. 75.112 Include a proposed project period, timeline, project
narrative, and a logic model or other conceptual framework.

* * * * *
(b) An application must include a narrative that describes how the
applicant plans to meet each objective of the project and, as
appropriate, how the applicant intends to use continuous improvement
strategies in its project implementation based on periodic review of
research, data, community input, or other feedback to advance the
programmatic objectives most effectively and efficiently, in each
budget period of the project.
(c) The Secretary may establish, in an application notice, a
requirement to include a logic model or other conceptual framework.

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. 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
20. 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)(2)''.

Sec. 75.155 [Amended]

0
21. Amend Sec. 75.155 by removing the words ``the authorizing statute
for a program requires'' and adding in their place the words
``applicable statutes and regulations require''.

Sec. 75.157 [Amended]

0
22. Amend Sec. 75.157 by removing the parenthetical authority citation
at the end of the section.

Sec. 75.158 [Amended]

0
23. 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.

[[Page 70322]]

Sec. Sec. 75.190 through 75.192 [Removed and Reserved]

0
24. Remove the undesignated section heading before Sec. 75.190, and
remove and reserve Sec. Sec. 75.190 through 75.192.

0
25. 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 (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
26. 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
27. 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
28. 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.
(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; or otherwise address the needs of the
target population, including addressing the needs of underserved
populations most affected by the issue, challenge, or opportunity, to
be addressed by the proposed project and close gaps in educational
opportunity.
(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 educational challenges, including the
underlying or related challenges, and 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, sustainable, and measurable
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, institutions, or
entities.
(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, regional, 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 more effective compared to other efforts to address a
similar problem.
(xi) The likely utility of the resources (such as materials,
processes, techniques, or data infrastructure) 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
target 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,

[[Page 70323]]

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 its impact 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 development
of 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 meaningful 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 logic model or other conceptual framework
underlying the proposed project, including how inputs are related to
outcomes.
(iv) The extent to which the proposed project's logic model or
other conceptual framework 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, and uses reliable administrative data to measure
progress and inform continuous improvement.
(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 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 development efforts include
adequate quality controls, continuous improvement efforts, and, as
appropriate, repeated testing of products.
(x) The extent to which the proposed project demonstrates that it
is designed to build capacity and yield sustainable results that will
extend beyond the project period.
(xi) The extent to which the design of the proposed project
reflects the most recent and relevant knowledge and practices from
research and effective practice.
(xii) The extent to which the proposed project represents an
exceptional approach to meeting program purposes and requirements and
serving the target population.
(xiii) The extent to which the proposed project represents an
exceptional approach to any absolute priority or absolute priorities
used in the competition.
(xiv) The extent to which the proposed project will integrate or
build on ideas, strategies, and efforts from similar external projects
to improve relevant outcomes, using existing funding streams from other
programs or policies supported by community, State, and Federal
resources.
(xv) The extent to which the proposed project is informed by
similar past projects implemented by the applicant with demonstrated
results.
(xvi) The extent to which the proposed project will include
coordination with other Federal investments, as well as appropriate
agencies and organizations providing similar services to the target
population.
(xvii) The extent to which the proposed project is part of a
comprehensive effort to improve teaching and learning and support
rigorous academic standards and increased social, emotional, and
educational development for students, including members of underserved
populations.
(xviii) The extent to which the proposed project includes explicit
plans for authentic, meaningful, and ongoing community member and
partner engagement, including their involvement in planning,
implementing, and revising project activities for underserved
populations.
(xix) The extent to which the proposed project includes plans for
consumer involvement.
(xx) The extent to which performance feedback and formative data
are integral to the design of the proposed project and will be used to
inform continuous improvement.
(xxi) The extent to which fellowship recipients or other project
participants are to be selected on the basis of academic excellence.
(xxii) The extent to which the applicant demonstrates that it has
the resources to operate the project beyond the project period,
including a multiyear financial and operating model and accompanying
plan; the demonstrated commitment of any partners; demonstration of
broad support from community members and partners (such as State
educational agencies, teachers' unions, families, business and
industry, community members, and State vocational rehabilitation
agencies) that are critical to the project's long-term success; or a
plan for capacity-building by leveraging one or more of these types of
resources.
(xxiii) The extent to which there is a plan to incorporate the
project purposes, activities, or benefits into the ongoing work of the
applicant beyond the end of the project period.
(xxiv) The extent to which the proposed project will increase
efficiency in the use of time, staff, money, or other resources in
order to improve results and increase productivity.
(xxv) The extent to which the proposed project will integrate with,
or build on, similar or related efforts in order to improve relevant
outcomes, using nonpublic funds or resources.
(xxvi) The extent to which the proposed project demonstrates a
rationale that is aligned with the purposes of the grant program.
(xxvii) The extent to which the proposed project represents
implementation of the evidence cited in support of the proposed project
with fidelity.
(xxviii) The extent to which the applicant plans to allocate a
significant portion of its requested funding to the evidence-based
project components.

[[Page 70324]]

(xxix) The strength of the commitment from key decision-makers at
proposed implementation sites.
(d) Quality of project services. (1) The Secretary considers the
quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by
the proposed project, the Secretary considers the quality and
sufficiency of strategies for ensuring equitable and adequate access
and participation for project participants who experience barriers
based on one or more of the following: economic disadvantage; gender;
race; ethnicity; color; national origin; disability; age; language;
migration; living in a rural location; experiencing homelessness or
housing insecurity; involvement with the justice system; pregnancy,
parenting, or caregiver status; and sexual orientation. This
determination includes the steps developed and described in the form
Equity For Students, Teachers, And Other Program Beneficiaries (OMB
Control No. 1894-0005) (section 427 of the General Education Provisions
Act (20 U.S.C. 1228a)).
(3) In addition, the Secretary considers one or more of the
following factors:
(i) The extent to which the services to be provided by the proposed
project were determined with input from the community to be served to
ensure that they are appropriate and responsive to the needs of the
intended recipients or beneficiaries, including underserved
populations, of those services.
(ii) The extent to which the proposed project is supported by the
target population that it is intended to serve.
(iii) The extent to which the services to be provided by the
proposed project reflect up-to-date knowledge and an evidence-based
project component.
(iv) The likely benefit to the intended recipients, as indicated by
the logic model or other conceptual framework, of the services to be
provided.
(v) The extent to which the training or professional development
services to be provided by the proposed project are of sufficient
quality, intensity, and duration to build recipient and project
capacity in ways that lead to improvements in practice among the
recipients of those services.
(vi) The extent to which the services to be provided by the
proposed project are likely to provide long-term solutions to alleviate
the personnel shortages that have been identified or are the focus of
the proposed project.
(vii) The likelihood that the services to be provided by the
proposed project will lead to meaningful improvements in the
achievement of students as measured against rigorous and relevant
standards.
(viii) The likelihood that the services to be provided by the
proposed project will lead to meaningful improvements in early
childhood and family outcomes.
(ix) The likelihood that the services to be provided by the
proposed project will lead to meaningful improvements in the skills and
competencies necessary to gain employment in high-quality jobs,
careers, and industries or build capacity for independent living.
(x) The extent to which the services to be provided by the proposed
project involve the collaboration of appropriate partners, including
those from underserved populations, to maximize the effectiveness of
project services.
(xi) The extent to which the services to be provided by the
proposed project involve the use of efficient strategies, including the
use of technology, as appropriate, and the leveraging of non-project
resources.
(xii) The extent to which the services to be provided by the
proposed project are focused on recipients, community members, or
project participants that are most underserved as demonstrated by the
data relevant to the project.
(e) Quality of the project personnel. (1) The Secretary considers
the quality of the personnel who will carry out the proposed project.
(2) In determining the quality of project personnel, the Secretary
considers the extent to which the applicant demonstrates that it has
project personnel or a plan for hiring of personnel who are members of
groups that have historically encountered barriers, or who have
professional or personal experiences with barriers, based on one or
more of the following: economic disadvantage; gender; race; ethnicity;
color; national origin; disability; age; language; migration; living in
a rural location; experiencing homelessness or housing insecurity;
involvement with the justice system; pregnancy, parenting, or caregiver
status; and sexual orientation.
(3) In addition, the Secretary considers one or more of the
following factors:
(i) The extent to which the project director or principal
investigator, when hired, has the qualifications required for the
project, including formal training or work experience in fields related
to the objectives of the project and experience in designing, managing,
or implementing similar projects for the target population to be served
by the project.
(ii) The extent to which the key personnel in the project, when
hired, have the qualifications required for the proposed project,
including formal training or work experience in fields related to the
objectives of the project, and represent or have lived experiences of
the target population.
(iii) The qualifications, including relevant training and
experience, of project consultants or subcontractors.
(iv) The extent to which the proposed project team maximizes
diverse perspectives, for example by reflecting the lived experiences
of project participants, or relevant experience working with the target
population.
(v) The extent to which the proposed planning, implementing, and
evaluating project team are familiar with the assets, needs, and other
contextual considerations of the proposed implementation sites.
(f) Adequacy of resources. (1) The Secretary considers the adequacy
of resources for the proposed project.
(2) In determining the adequacy of resources for the proposed
project, the Secretary considers one or more of the following factors:
(i) The adequacy of support for the project, including facilities,
equipment, supplies, and other resources, from the applicant or the
lead applicant organization.
(ii) The relevance and demonstrated commitment of each partner in
the proposed project to the implementation and success of the project.
(iii) The extent to which the budget is adequate to support the
proposed project and the costs are reasonable in relation to the
objectives, design, and potential significance of the proposed project.
(iv) The extent to which the costs are reasonable in relation to
the number of persons to be served, the depth and intensity of
services, and the anticipated results and benefits.
(v) The extent to which the costs of the proposed project would
permit other entities to replicate the project.
(vi) The level of initial matching funds or other commitment from
partners, indicating the likelihood for potential continued support of
the project after Federal funding ends.
(vii) The potential for the purposes, activities, or benefits of
the proposed project to be institutionalized into the ongoing practices
and programs of the applicant, agency, or organization and continue
after Federal funding ends.
(g) Quality of the management plan. (1) The Secretary considers the
quality of the management plan for the proposed project.
(2) In determining the quality of the management plan for the
proposed

[[Page 70325]]

project, the Secretary considers one or more of the following factors:
(i) The feasibility of the management plan to achieve project
objectives and goals on time and within budget, including clearly
defined responsibilities, timelines, and milestones for accomplishing
project tasks.
(ii) The adequacy of plans for ensuring the use of quantitative and
qualitative data, including meaningful community member and partner
input, to inform continuous improvement in the operation of the
proposed project.
(iii) The adequacy of mechanisms for ensuring high-quality and
accessible products and services from the proposed project for the
target population.
(iv) The extent to which the time commitments of the project
director and principal investigator and other key project personnel are
appropriate and adequate to meet the objectives of the proposed
project.
(v) How the applicant will ensure that a diversity of perspectives,
including those from underserved populations, are brought to bear in
the design, implementation, operation, evaluation, and improvement of
the proposed project, including those of parents, educators, community-
based organizations, civil rights organizations, the business
community, a variety of disciplinary and professional fields,
recipients or beneficiaries of services, or others, as appropriate.
(h) Quality of the project evaluation or other evidence-building.
(1) The Secretary considers the quality of the evaluation or other
evidence-building of the proposed project.
(2) In determining the quality of the evaluation or other evidence-
building, the Secretary considers one or more of the following factors:
(i) The extent to which the methods of evaluation or other
evidence-building are thorough, feasible, relevant, and appropriate to
the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation or other
evidence-building are appropriate to the context within which the
project operates and the target population of the proposed project.
(iii) The extent to which the methods of evaluation or other
evidence-building are designed to measure the fidelity of
implementation of the project.
(iv) The extent to which the methods of evaluation or other
evidence-building include the use of objective performance measures
that are clearly related to the intended outcomes of the project and
will produce quality data that are quantitative and qualitative.
(v) The extent to which the methods of evaluation or other
evidence-building will provide guidance for quality assurance and
continuous improvement.
(vi) The extent to which the methods of evaluation or other
evidence-building will provide performance feedback and provide
formative, diagnostic, or interim data that is a periodic assessment of
progress toward achieving intended outcomes.
(vii) The extent to which the evaluation will provide guidance
about effective strategies suitable for replication or testing and
potential implementation in other settings.
(viii) The extent to which the methods of evaluation will, if well
implemented, produce evidence about the effectiveness of the project on
relevant outcomes that would meet the What Works Clearinghouse
standards without reservations, as described in the What Works
Clearinghouse Handbooks.
(ix) The extent to which the methods of evaluation will, if well
implemented, produce evidence about the effectiveness of the project on
relevant outcomes that would meet the What Works Clearinghouse
standards with or without reservations, as described in the What Works
Clearinghouse Handbooks.
(x) The extent to which the methods of evaluation include an
experimental study, a quasi-experimental design study, or a
correlational study with statistical controls for selection bias (such
as regression methods to account for differences between a treatment
group and a comparison group) to assess the effectiveness of the
project on relevant outcomes.
(xi) The extent to which the evaluation employs an appropriate
analytic strategy to build evidence about the relationship between key
project components, mediators, and outcomes and inform decisions on
which project components to continue, revise, or discontinue.
(xii) The quality of the evaluation plan for measuring fidelity of
implementation, including thresholds for acceptable implementation, to
inform how implementation is associated with outcomes.
(xiii) The extent to which the evaluation plan includes a
dissemination strategy that is likely to promote others' learning from
the project.
(xiv) The extent to which the evaluator has the qualifications,
including the relevant training, experience, and independence, required
to conduct an evaluation of the proposed project, including experience
conducting evaluations of similar methodology as proposed and with
evaluations for the proposed population and setting.
(xv) The extent to which the proposed project plan includes
sufficient resources to conduct the project evaluation effectively.
(xvi) The extent to which the evaluation will access and link high-
quality administrative data from authoritative sources to improve
evaluation quality and comprehensiveness.
(i) Strategy to scale. (1) The Secretary considers the applicant's
strategy to effectively scale the proposed project for recipients,
community members, and partners, including to underserved populations.
(2) In determining the applicant's strategy to effectively scale
the proposed project, the Secretary considers one or more of the
following factors:
(i) The quality of the strategies to reach scale by expanding the
project to new populations or settings.
(ii) The applicant's capacity (such as qualified personnel,
financial resources, or management capacity), together with any project
partners, to bring the proposed project effectively to scale on a
national or regional level during the grant period.
(iii) The applicant's capacity (such as qualified personnel,
financial resources, or management capacity), together with any project
partners, to further develop and bring the proposed project effectively
to scale on a national level during the grant period, based on the
findings of the proposed project.
(iv) The quality of the mechanisms the applicant will use to
broadly disseminate information and resources on its project to support
further development, adaptation, or replication by other entities to
implement project components in additional settings or with other
populations.
(v) The extent to which there is unmet demand for broader
implementation of the project that is aligned with the proposed level
of scale.
(vi) The extent to which there is a market of potential entities
that will commit resources toward implementation.
(vii) The quality of the strategies to scale that take into account
and are responsive to previous barriers to expansion.
(viii) The quality of the plan to deliver project services more
efficiently at scale and maintain effectiveness.
(ix) The quality of the plan to develop revenue sources that will
make the project self-sustaining.

[[Page 70326]]

(x) The extent to which the project will create reusable data and
evaluation tools and techniques that facilitate expansion and support
continuous improvement.

0
29. Revise Sec. 75.215 to read as follows:

Sec. 75.215 How the Department selects a new project.

Sections 75.216 through 75.222 describe the process the Secretary
uses to select applications for new grants. All these sections apply to
a discretionary grant program. However, only Sec. 75.216 applies also
to a formula grant program. (See Sec. 75.1(b) Discretionary grant
programs, Sec. 75.1(c) Formula grant programs, and Sec. 75.200, How
applications for new discretionary grants and cooperative agreements
are selected for funding; standards for use of cooperative agreements.)

0
30. Revise Sec. 75.216 to read as follows:

Sec. 75.216 Applications that the Secretary may choose not to
evaluate for funding.

The Secretary may choose not to evaluate an application if--
(a) The applicant does not comply with all of the procedural rules
that govern the submission of the application; or
(b) The application does not contain the information required under
the program.

Sec. 75.217 [Amended]

0
31. Amend Sec. 75.217 by:
0
a. In paragraph (a), removing the words ``the authorizing statute'' and
adding in their place the words ``applicable statutes and
regulations'';
0
b. In paragraph (c), removing the word ``solely'' and adding the words
``and any competitive preference points'' after the words ``selection
criteria''; and
0
c. Removing the parenthetical authority citation at the end of the
section.

0
32. Amend Sec. 75.219 by:
0
a. Revising paragraph (b); and
0
b. Removing the parenthetical authority citation at the end of the
section.
The revision reads as follows:

Sec. 75.219 Exceptions to the procedures under Sec. 75.217.

* * * * *
(b)(1) The application was submitted under the program's preceding
competition;
(2) The application was not selected for funding because the
application was mishandled or improperly processed by the Department;
and
(3) The application has been rated highly enough to deserve
selection under Sec. 75.217; or
* * * * *

Sec. 75.220 [Amended]

0
33. Amend Sec. 75.220 by:
0
a. In paragraph (b)(2), removing the words ``Office of the Chief
Financial Officer (OCFO)'' and adding, in their place, the words
``Office of Finance and Operations (OFO)''; and
0
b. Removing the parenthetical authority citation at the end of the
section.

0
34. Revise Sec. 75.221 to read as follows:

Sec. 75.221 Procedures the Department uses under Sec. 75.219(b).

If the Secretary has documentary evidence that the special
circumstances of Sec. 75.219(b) exist for an application, the
Secretary may select the application for funding.

Sec. 75.222 [Amended]

0
35. Amend Sec. 75.222 by:
0
a. In paragraph (a)(1), removing the word ``under'' before ``which
funds'' and adding in its place the word ``for'';
0
b. In paragraph (a)(2)(ii)(B), removing the citation ``(a)(2)(ii)'' and
adding in its place the citation ``(a)(2)(ii)(A)'';
0
c. In paragraph (b)(1), removing the word ``ED'' and adding, in its
place, the word ``the Department'';
0
d. Removing, in paragraph (b)(2), the word ``codified'';
0
e. Revising the Note; and
0
f. Removing the parenthetical authority citation at the end of the
section.
The revision reads as follows:

Sec. 75.222 Procedures the Department uses under Sec. 75.219(c).

* * * * *

Note 1 to Sec. 75.222: To ensure prompt consideration, an
applicant submitting an unsolicited application should send the
application, marked ``Unsolicited Application'' on the outside, to
U.S. Department of Education, OFO/G6 Functional Application Team,
Mail Stop 5C231, 400 Maryland Avenue SW, Washington, DC 20202-4260.

0
36. Revise Sec. 75.225 to read as follows:

Sec. 75.225 What procedures does the Secretary use when deciding to
give special consideration to new potential grantees?

(a) If the Secretary determines that special consideration of new
potential grantees is appropriate, the Secretary may: provide
competitive preference to applicants that meet one or more of the
conditions in paragraph (b) of this section; or provide special
consideration for new potential grantees by establishing one
competition for those applicants that meet one or more of the
conditions in paragraph (b) of this section and a separate competition
for applicants that meet the corresponding conditions in paragraph (c)
of this section.
(b) As used in this section, ``new potential grantee'' means an
applicant that meets one or more of the following conditions--
(1) The applicant has never received a grant or cooperative
agreement, including through membership in a group application
submitted in accordance with Sec. Sec. 75.127 through 75.129 that
received a grant or cooperative agreement, under the program from which
it seeks funds;
(2) The applicant does not, as of the deadline date for submission
of applications, have an active grant or cooperative agreement,
including through membership in a group application submitted in
accordance with Sec. Sec. 75.127 through 75.129 that h

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