Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities, 8396-8399 [2018-04102]
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Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / Proposed Rules
actions, including further investigations that
should be taken to ensure that the matter is
fully and fairly addressed. When responding
to the complainant, DCCA will also provide
a final copy of the response letter to the
Ombudsman.
If the Ombudsman receives a complaint
regarding DCCA’s review of an appeal, the
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complaint documents and seek any other
relevant information. The Ombudsman may
also consult Board and Reserve Bank staff to
discuss the details of the previous complaint
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responsible for responding to the
complainant with its determination. As
appropriate, the Ombudsman will contact the
appropriate Board division director and
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Safeguards. These policies, processes, and
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To the extent possible, the Ombudsman
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recognized, however, that it may not be
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the Ombudsman, Board of Governors of the
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20551, or by sending an email to
Ombudsman@frb.gov.
[FR Doc. 2018–03907 Filed 2–26–18; 8:45 am]
BILLING CODE 6210–01–P
DEPARTMENT OF EDUCATION
34 CFR Part 300
RIN 1820–AB77
[Docket ID ED–2017–OSERS–0128]
Assistance to States for the Education
of Children With Disabilities;
Preschool Grants for Children With
Disabilities
Office of Special Education and
Rehabilitative Services (OSERS),
Department of Education.
ACTION: Notice of proposed rulemaking.
daltland on DSKBBV9HB2PROD with PROPOSALS
AGENCY:
In order to ensure the
Department’s ‘‘Equity in IDEA’’ or
‘‘significant disproportionality’’
regulations effectively address
significant disproportionality, the
Department proposes to postpone the
compliance date by two years, from July
1, 2018, to July 1, 2020. The Department
SUMMARY:
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also proposes to postpone the date for
including children ages three through
five in the analysis of significant
disproportionality with respect to the
identification of children as children
with disabilities and as children with a
particular impairment from July 1, 2020,
to July 1, 2022.
DATES: We must receive your comments
on or before May 14, 2018.
ADDRESSES: Submit your comments
through the Federal eRulemaking Portal
or via postal mail, commercial delivery,
or hand delivery. We will not accept
comments by fax or email. To ensure
that we do not receive duplicate copies,
please submit your comments only
once. In addition, please include the
Docket ID at the top of your comments.
• Federal eRulemaking Portal: Go to
www.regulations.gov to submit your
comments electronically. Information
on using Regulations.gov, including
instructions for accessing agency
documents, submitting comments, and
viewing the docket is available on the
site under the ‘‘Help’’ tab.
• Postal Mail, Commercial Delivery,
or Hand Delivery: The Department
strongly encourages commenters to
submit their comments electronically.
However, if you mail or deliver your
comments in response to this request,
address them to Johnny W. Collett,
Assistant Secretary, Office of Special
Education and Rehabilitation Services,
U.S. Department of Education, 400
Maryland Avenue SW, Room 5107,
Potomac Center Plaza, Washington, DC
20202–2500.
Privacy Note: The Department’s
policy is to make all comments received
from members of the public available for
public viewing in their entirety on the
Federal eRulemaking Portal at
www.regulations.gov. Therefore,
commenters should be careful to
include in their comments only
information that they wish to make
publicly available.
FOR FURTHER INFORMATION CONTACT: Kate
Friday, U.S. Department of Education,
400 Maryland Avenue SW, Room 5104,
Potomac Center Plaza, Washington, DC
20202–2500. Telephone: (202) 245–
7605, or by email at: Kate.Friday@
ed.gov.
If you use a telecommunications
device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay
Service, toll free, at 1–800–877–8339.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: We invite you
to submit comments regarding this
notice of proposed rulemaking. We will
consider comments on proposed
delayed compliance dates only and will
not consider comments on the text or
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substance of the final regulations. See
ADDRESSES for instructions on how to
submit comments.
During and after the comment period,
you may inspect all public comments
about this notice of proposed
rulemaking by accessing
Regulations.gov. You may also inspect
the comments in person in Room 5104,
400 Maryland Avenue SW, Potomac
Center Plaza, Washington, DC, between
8:30 a.m. and 4:00 p.m. Washington, DC
time, Monday through Friday of each
week, except Federal holidays. If you
want to schedule time to inspect
comments, please contact the person
listed under FOR FURTHER INFORMATION
CONTACT.
Assistance to Individuals with
Disabilities in Reviewing the
Rulemaking Record: On request, we will
provide an appropriate accommodation
or auxiliary aid to an individual with a
disability who needs assistance to
review the comments or other
documents in the public rulemaking
record for this notice of proposed
rulemaking. If you want to schedule an
appointment for this type of
accommodation or auxiliary aid, please
contact the person listed under FOR
FURTHER INFORMATION CONTACT.
On February 24, 2017, President
Trump signed Executive Order 13777,
‘‘Enforcing the Regulatory Reform
Agenda,’’ which established a policy ‘‘to
alleviate unnecessary regulatory
burdens’’ on the American people.
Section 3(a) of the Executive Order
directed each Federal agency to
establish a regulatory reform task force,
the duty of which is to evaluate existing
regulations and ‘‘make
recommendations to the agency head
regarding their repeal, replacement, or
modification.’’ On June 22, 2017,
therefore, the Department published a
notice in the Federal Register (82 FR
28431) seeking input on regulations that
may be appropriate for repeal,
replacement, or modification.
As part of that regulatory review
exercise, OSERS is reviewing the
Assistance to States for the Education of
Children With Disabilities; Preschool
Grants for Children With Disabilities
regulations (the ‘‘Equity in IDEA’’ or
‘‘significant disproportionality’’
regulations), published in the Federal
Register on December 19, 2016 (81 FR
92376). We are, therefore, proposing to
postpone the compliance by two years
in order that the Department may
review the regulation to ensure it
effectively addresses significant
disproportionality.
Statute: Section 618(d)(1) of IDEA (20
U.S.C. 1418(d)(1)) requires every State
that receives IDEA Part B funds to
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collect and examine data to determine if
significant disproportionality based on
race or ethnicity exists in the State or
the LEAs of the State with respect to (a)
the identification of children as children
with disabilities; (b) the placement in
particular educational settings of such
children; and (c) the incident, duration,
and type of disciplinary actions,
including suspensions and expulsions.
IDEA does not define ‘‘significant
disproportionality’’ or instruct how data
must be collected and examined.
Current Regulations: The current
Equity in IDEA regulations effectively
define ‘‘significant disproportionality.’’
Sections 300.646(b) and 300.647
establish a standard methodology States
must use to determine whether
significant disproportionality based on
race and ethnicity is occurring in the
State and in its local educational
agencies (LEAs) with respect to the
identification, placement, and
discipline of children with disabilities.
In addition, if a State determines that
there is significant disproportionality
occurring in an LEA, section
618(d)(2)(B) of the Individuals with
Disabilities Education Act (IDEA) and
§ 300.646(d) require the LEA to reserve
15 percent of its Part B funds to be used
for comprehensive coordinated early
intervening services (comprehensive
CEIS). Section 300.646(d)(1)(ii) requires
the LEA to identify and address the
factors contributing to significant
disproportionality as part of
implementing comprehensive CEIS.
Section 300.646(d)(2) expands the
populations of children eligible for
these services to include children, with
and without disabilities, from age 3
through grade 12.
The significant disproportionality
regulations became effective January 18,
2017, but the Department delayed the
date for compliance. States are not
required to begin complying until July
1, 2018, and are not required to include
children ages three through five in their
analyses of significant
disproportionality with respect to the
identification of children as children
with disabilities and as children with a
particular impairment until July 1, 2020.
Proposed Regulations: The
Department proposes to postpone the
compliance date for implementing the
regulations to July 1, 2020 from July 1,
2018. The Department also proposes to
postpone the compliance date for
including children ages three through
five in the significant disproportionality
analysis to July 1, 2022, from July 1,
2020.
Reasons: As the Department noted in
the Notice of Proposed Rulemaking
(NPRM) proposing the significant
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disproportionality regulations and again
in the final rule adopting them, the
status quo for school districts across the
country properly identifying children
with disabilities is troubling. In 2012,
American Indian and Alaska Native
students were 60 percent more likely to
be identified for an intellectual
disability than children in other racial
or ethnic groups, while black children
were more than twice as likely as other
groups to be so identified. Similarly,
American Indian or Alaska Native
students were 90 percent more likely,
black students were 50 percent more
likely, and Hispanic students were 40
percent more likely to be identified as
having a learning disability. In addition,
black children were more than twice as
likely to be identified with an emotional
disturbance. And yet, in SY 2012–13,
only 28 States and the District of
Columbia identified any LEAs with
significant disproportionality, and of the
491 LEAs identified, 75 percent were
located in only seven States. Of the
States that identified LEAs with
significant disproportionality, only the
District of Columbia and four States
identified significant disproportionality
in all three categories of analysis—
identification, placement, and in
discipline. 81 FR 92380.
The Department is concerned,
however, given the public comments it
has received in response to its general
solicitation in 2017 on regulatory
reform, that the Equity in IDEA
regulations may not appropriately
address the problem of significant
disproportionality. We therefore
propose to postpone by two years the
compliance dates for the regulations so
that we may review all of the issues
raised and determine how to better
serve children with disabilities.
A number of commenters suggested,
for example, that the Department lacks
the statutory authority under IDEA to
require States to use a standard
methodology, pointing out as well that
the Department’s previous position,
adopted in the 2006 regulations
implementing the 2004 amendments to
IDEA, was that States are in the best
position to evaluate factors affecting
determinations of significant
disproportionality.
Similarly, one detailed comment
expressed concern that the standard
methodology improperly looks at group
outcomes through statistical measures
rather than focusing on what is at the
foundation of IDEA, namely the needs
of each individual child and on the
appropriateness of individual
identifications, placements, or
discipline. Further, a number of
commenters suggested that the standard
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8397
methodology would provide incentives
to LEAs to establish numerical quotas
on the number of children who can be
identified as children with disabilities,
assigned to certain classroom
placements, or disciplined in certain
ways.
Finally, still other commenters
suggested that the Department could not
accurately assess the impact of the
regulations given that it did not provide
any standards by which it would assess
the required ‘‘reasonableness’’ of State
risk ratio thresholds and that
calculations of significant
disproportionality should be better
aligned with State Performance Plan
indicators, including the percent of
districts that have a significant
discrepancy, by race or ethnicity, in the
rate of suspensions and expulsion for
children with disabilities (Indicator 4B),
and the percent of districts with
disproportionate representation of racial
and ethnic groups in special education
and related services (Indicator 9) and in
specific disability categories (Indicator
10) that is the result of inappropriate
identification.
Executive Orders 12866, 13563, and
13771
Regulatory Impact Analysis
Under Executive Order 12866, the
Secretary must determine whether this
regulatory action is ‘‘significant’’ and,
therefore, subject to the requirements of
the Executive order and subject to
review by the Office of Management and
Budget (OMB). Section 3(f) of Executive
Order 12866 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 $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local or tribal governments or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule);
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order.
This proposed regulatory action is a
significant regulatory action subject to
review by OMB under section 3(f) of
Executive Order 12866.
We have also reviewed these
regulations under Executive Order
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Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / Proposed Rules
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
upon a reasoned determination that
their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify);
(2) Tailor their 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
specifying the behavior or manner of
compliance that regulated entities must
adopt; and
(5) Identify and assess available
alternatives to direct regulation,
including providing 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.’’ The Office of
Information and Regulatory Affairs of
OMB 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 this proposed
regulatory action only upon a reasoned
determination that its benefits justify its
costs. Based on the analysis that
follows, the Department believes 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, and Tribal
governments in the exercise of their
governmental functions.
In this regulatory impact analysis we
discuss the need for regulatory action,
alternatives considered, the potential
costs and benefits, net budget impacts,
assumptions, limitations, and data
sources.
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Need for These Regulations
As explained in the previous section,
we are proposing this regulatory action
in order to delay implementation of a
regulation that we are concerned may
not meet its fundamental purpose,
namely to properly identify and address
significant disproportionality among
children with disabilities. We propose
the delay as well to give the
Department, the States, and the public
additional time to study the questions
involved and determine how to better
serve children with disabilities.
Alternatives Considered
The Department considered proposing
a delay of the compliance dates for
different lengths of time and decided
upon two years as an appropriate
length, given a realistic measure of how
long it takes the agency to develop,
propose, and promulgate complex
regulations. In the Department’s
experience, one year is too little time as
a general matter and, for these
regulations in particular, given the
amount of work on this issue the
Department has already done, three
years is too long.
regulations on July 1, 2018, five States
would implement them as of July 1,
2019, and the remaining 40 would wait
until July 1, 2020.
Further, the Department estimates
that the number of LEAs identified with
significant disproportionality in each
year as a result of the revised
regulations would be reduced due to the
delay in implementation. Previously,
the Department estimated that 400 new
LEAs would be identified each year. We
estimate that the delay in compliance
date would result in only 80 additional
LEAs being identified in the 2018–2019
school year (a reduction of 320) and
only 100 additional LEAs identified in
the 2019–20 school year (a reduction of
300). These estimates assume that the
number of additional LEAs identified
each year is roughly proportional to the
number of States that implement the
revised regulations.1
Executive Order 13771
Consistent with Executive Order
13771 (82 FR 9339, February 3, 2017),
we have estimated that this proposed
regulatory action will not impose any
additional costs.
Analysis of Costs and Benefits
Regulatory Flexibility Act Certification
The Department has analyzed the
costs of complying with the proposed
regulatory action. While postponing the
obligation to comply with the
regulations would not place any new
requirements on States, the delay in the
compliance date would reduce costs
over the 10 years relative to the baseline
set out in the December 2016 final rule.
The Department estimates that this
regulatory action would generate cost
savings between $10.9 and $11.5
million, with a reduction in transfers of
between $59.6 and $63.0 million. These
savings are driven by two separate, but
related factors: Fewer States
implementing the regulations during the
2018–19 and 2019–20 school years and,
as a result, the lower number of LEAs
identified as having significant
disproportionality in each of those years
under the standard methodology.
In developing our estimates, the
Department assumed that a small
number of States, who may already be
prepared, or nearly prepared, to
implement the regulations on July 1,
2018 will continue to do so, regardless
of any delay in the compliance date. We
also assume that a subset of States will
implement the regulations in the
following school year (2019–20), with
the remainder of States waiting until the
2020 compliance date to implement the
regulations. We assume that 10 States
would implement the revised
The Secretary certifies that these
proposed regulations would not have a
significant economic impact on a
substantial number of small entities.
The U.S. Small Business
Administration (SBA) Size Standards
define ‘‘small entities’’ as for-profit or
nonprofit institutions with total annual
revenue below $7,000,000 or, if they are
institutions controlled by small
governmental jurisdictions (that are
comprised of cities, counties, towns,
townships, villages, school districts, or
special districts), with a population of
less than 50,000. These proposed
regulations would affect all LEAs,
including the estimated 17,371 LEAs
that meet the definition of small
entities. However, we have determined
that the proposed regulations would not
have a significant economic impact on
these small entities. As stated earlier,
this proposed regulatory action imposes
no new costs.
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1 This calculation of savings includes a change to
the baseline in the December 2016 final rule due to
an incorrect calculation in the 3 percent discount
rate, shown in detail in the cost analysis
spreadsheet posted in the docket with this
document. This calculation of cost savings does not
change any of the assumptions regarding wage
rates, hours of burden, or number of personnel that
were discussed in the final rule. The assumptions
upon which the cost-benefit calculations in the
final rule are based are being evaluated by the
Department as part of the review of the final rule
itself.
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Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / Proposed Rules
Paperwork Reduction Act of 1995
POSTAL SERVICE
This regulatory action does not
contain any information collection
requirements.
39 CFR Part 111
Proposed Changes to Validations for
Intelligent Mail Package Barcode
Intergovernmental Review
This program is 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 the Department’s specific
plans and actions for this program.
Accessible Format: Individuals with
disabilities can obtain this document in
an accessible format (e.g., braille, large
print, audiotape, or compact disc) on
request to the contact person listed
under FOR FURTHER INFORMATION
CONTACT.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. 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: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
daltland on DSKBBV9HB2PROD with PROPOSALS
List of Subjects in 34 CFR Part 300
Administrative practice and
procedure, Education of individuals
with disabilities, Elementary and
secondary education, Equal educational
opportunity, Grant programs—
education, Privacy, Private schools,
Reporting and recordkeeping
requirements.
Dated: February 23, 2018.
Johnny W. Collett,
Assistant Secretary for Special Education and
Rehabilitative Services.
[FR Doc. 2018–04102 Filed 2–23–18; 4:15 pm]
BILLING CODE 4000–01–P
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AGENCY:
ACTION:
Postal ServiceTM.
Proposed rule.
The Postal Service is
proposing to revise the Mailing
Standards of the United States Postal
Service, Domestic Mail Manual
(DMM®), to add new Intelligent Mail®
package barcode (IMpb) validations for
evaluating compliance with IMpb
requirements for all mailers who enter
commercial parcels.
SUMMARY:
Submit comments on or before
March 29, 2018.
DATES:
Mail or deliver written
comments to the manager, Product
Classification, U.S. Postal Service, 475
L’Enfant Plaza SW, Room 4446,
Washington, DC 20260–5015. If sending
comments by email, include the name
and address of the commenter and send
to ProductClassification@usps.gov, with
a subject line of ‘‘Intelligent Mail
Package Barcode Validations.’’ Faxed
comments are not accepted. You may
inspect and photocopy all written
comments, by appointment only, at
USPS® Headquarters Library, 475
L’Enfant Plaza SW, 11th Floor North,
Washington, DC 20260. These records
are available for review on Monday
through Friday, 9 a.m.–4 p.m., by
calling 202–268–2906.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Direct questions or comments to
Juliaann Hess at jsanders.hess@usps.gov
or (202) 268–7663.
The Postal
Service is proposing to update IMpb
requirements relative to Compliance
Quality Validations for Thresholds,
Address Quality, Shipping Services File
Manifest Quality, and Barcode Quality.
These proposed validations would
allow the Postal Service to further
improve service, tracking, visibility, and
positive customer experiences along
with better identifying noncompliant
mailpieces.
Technical and in-depth IMpb
guidance is available in Publication 199,
Intelligent Mail Package Barcode
Implementation Guide for: Confirmation
Services and Electronic Verification
System Mailers, which is conveniently
located on the PostalPro website at
https://postalpro.usps.com. This
publication would be updated to reflect
all adopted changes.
SUPPLEMENTARY INFORMATION:
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8399
Background
On December 18, 2013, in a notice of
final rulemaking (78 FR 76548–76560),
the Postal Service announced that
mailers who enter commercial parcels
must adhere to the following: IMpb
must be used on all commercial parcels;
piece-level information must be
submitted to the Postal Service via an
approved electronic file format (except
for mailers generating barcodes for use
on return services products, such as
MRS); and electronic files must include
the complete destination delivery
address and/or an 11-digit Delivery
Point Validation (DPV®) ZIP Code® for
all records, except for Parcel Return
Service, a ZIP+4® Code is required to be
encoded into the barcode for all returns
products.
Since IMpb requirements were
implemented, the Postal Service has
made significant advances with its
package strategy. Use of IMpbs
continues to be the critical bridge
between physical packages and the
digital information required to enable
world class service, tracking, visibility,
and positive customer experiences.
Barcode intelligence along with the
corresponding digital data captured
through in-transit processing and
delivery scans are fundamental
requirements in the shipping market.
The data have enabled the Postal
Service and its customers to enhance
products, improve customer
satisfaction, increase efficiencies,
provide greater visibility, integrate with
eCommerce and supply chain systems,
enhance performance and analytics
tools, and generate actionable business
insights for better decisions.
In January 2015, the Postal Service
required that all parcels with an IMpb
be accompanied by the complete
destination delivery address or an 11digit ZIP Code (validated by the DPV
System, or an approved equivalent) in
the Shipping Services File or other
approved electronic documentation.
This information is critical to the Postal
Service package strategy, the dynamic
routing process that enable package
distribution without scheme-trained
employees, improving the customer’s
experience, and enhancing business
insights and analytics.
In January 2016, the Postal Service
began measuring the quality of mailer
compliance for the newly introduced
IMpb Compliance Quality Category with
data validations to determine the IMpb
Compliance Assessment criteria as
follows: Address Quality, Manifest
Quality, and Barcode Quality. Then, in
July 2017, the Postal Service began
assessing mailers with a $0.20 IMpb
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]]>Agencies
[Federal Register Volume 83, Number 39 (Tuesday, February 27, 2018)]
[Proposed Rules]
[Pages 8396-8399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04102]
=======================================================================
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DEPARTMENT OF EDUCATION
34 CFR Part 300
RIN 1820-AB77
[Docket ID ED-2017-OSERS-0128]
Assistance to States for the Education of Children With
Disabilities; Preschool Grants for Children With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services
(OSERS), Department of Education.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In order to ensure the Department's ``Equity in IDEA'' or
``significant disproportionality'' regulations effectively address
significant disproportionality, the Department proposes to postpone the
compliance date by two years, from July 1, 2018, to July 1, 2020. The
Department also proposes to postpone the date for including children
ages three through five in the analysis of significant
disproportionality with respect to the identification of children as
children with disabilities and as children with a particular impairment
from July 1, 2020, to July 1, 2022.
DATES: We must receive your comments on or before May 14, 2018.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or email. To ensure that we do not receive
duplicate copies, please submit your comments only once. In addition,
please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket is available on the site
under the ``Help'' tab.
Postal Mail, Commercial Delivery, or Hand Delivery: The
Department strongly encourages commenters to submit their comments
electronically. However, if you mail or deliver your comments in
response to this request, address them to Johnny W. Collett, Assistant
Secretary, Office of Special Education and Rehabilitation Services,
U.S. Department of Education, 400 Maryland Avenue SW, Room 5107,
Potomac Center Plaza, Washington, DC 20202-2500.
Privacy Note: The Department's policy is to make all comments
received from members of the public available for public viewing in
their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to include
in their comments only information that they wish to make publicly
available.
FOR FURTHER INFORMATION CONTACT: Kate Friday, U.S. Department of
Education, 400 Maryland Avenue SW, Room 5104, Potomac Center Plaza,
Washington, DC 20202-2500. Telephone: (202) 245-7605, or by email at:
[email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service, toll free, at 1-800-
877-8339.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: We invite you to submit comments regarding
this notice of proposed rulemaking. We will consider comments on
proposed delayed compliance dates only and will not consider comments
on the text or substance of the final regulations. See ADDRESSES for
instructions on how to submit comments.
During and after the comment period, you may inspect all public
comments about this notice of proposed rulemaking by accessing
Regulations.gov. You may also inspect the comments in person in Room
5104, 400 Maryland Avenue SW, Potomac Center Plaza, Washington, DC,
between 8:30 a.m. and 4:00 p.m. Washington, DC time, Monday through
Friday of each week, except Federal holidays. If you want to schedule
time to inspect comments, please contact the person listed under FOR
FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for this notice of proposed rulemaking. If you
want to schedule an appointment for this type of accommodation or
auxiliary aid, please contact the person listed under FOR FURTHER
INFORMATION CONTACT.
On February 24, 2017, President Trump signed Executive Order 13777,
``Enforcing the Regulatory Reform Agenda,'' which established a policy
``to alleviate unnecessary regulatory burdens'' on the American people.
Section 3(a) of the Executive Order directed each Federal agency to
establish a regulatory reform task force, the duty of which is to
evaluate existing regulations and ``make recommendations to the agency
head regarding their repeal, replacement, or modification.'' On June
22, 2017, therefore, the Department published a notice in the Federal
Register (82 FR 28431) seeking input on regulations that may be
appropriate for repeal, replacement, or modification.
As part of that regulatory review exercise, OSERS is reviewing the
Assistance to States for the Education of Children With Disabilities;
Preschool Grants for Children With Disabilities regulations (the
``Equity in IDEA'' or ``significant disproportionality'' regulations),
published in the Federal Register on December 19, 2016 (81 FR 92376).
We are, therefore, proposing to postpone the compliance by two years in
order that the Department may review the regulation to ensure it
effectively addresses significant disproportionality.
Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) requires
every State that receives IDEA Part B funds to
[[Page 8397]]
collect and examine data to determine if significant disproportionality
based on race or ethnicity exists in the State or the LEAs of the State
with respect to (a) the identification of children as children with
disabilities; (b) the placement in particular educational settings of
such children; and (c) the incident, duration, and type of disciplinary
actions, including suspensions and expulsions. IDEA does not define
``significant disproportionality'' or instruct how data must be
collected and examined.
Current Regulations: The current Equity in IDEA regulations
effectively define ``significant disproportionality.'' Sections
300.646(b) and 300.647 establish a standard methodology States must use
to determine whether significant disproportionality based on race and
ethnicity is occurring in the State and in its local educational
agencies (LEAs) with respect to the identification, placement, and
discipline of children with disabilities.
In addition, if a State determines that there is significant
disproportionality occurring in an LEA, section 618(d)(2)(B) of the
Individuals with Disabilities Education Act (IDEA) and Sec. 300.646(d)
require the LEA to reserve 15 percent of its Part B funds to be used
for comprehensive coordinated early intervening services (comprehensive
CEIS). Section 300.646(d)(1)(ii) requires the LEA to identify and
address the factors contributing to significant disproportionality as
part of implementing comprehensive CEIS. Section 300.646(d)(2) expands
the populations of children eligible for these services to include
children, with and without disabilities, from age 3 through grade 12.
The significant disproportionality regulations became effective
January 18, 2017, but the Department delayed the date for compliance.
States are not required to begin complying until July 1, 2018, and are
not required to include children ages three through five in their
analyses of significant disproportionality with respect to the
identification of children as children with disabilities and as
children with a particular impairment until July 1, 2020.
Proposed Regulations: The Department proposes to postpone the
compliance date for implementing the regulations to July 1, 2020 from
July 1, 2018. The Department also proposes to postpone the compliance
date for including children ages three through five in the significant
disproportionality analysis to July 1, 2022, from July 1, 2020.
Reasons: As the Department noted in the Notice of Proposed
Rulemaking (NPRM) proposing the significant disproportionality
regulations and again in the final rule adopting them, the status quo
for school districts across the country properly identifying children
with disabilities is troubling. In 2012, American Indian and Alaska
Native students were 60 percent more likely to be identified for an
intellectual disability than children in other racial or ethnic groups,
while black children were more than twice as likely as other groups to
be so identified. Similarly, American Indian or Alaska Native students
were 90 percent more likely, black students were 50 percent more
likely, and Hispanic students were 40 percent more likely to be
identified as having a learning disability. In addition, black children
were more than twice as likely to be identified with an emotional
disturbance. And yet, in SY 2012-13, only 28 States and the District of
Columbia identified any LEAs with significant disproportionality, and
of the 491 LEAs identified, 75 percent were located in only seven
States. Of the States that identified LEAs with significant
disproportionality, only the District of Columbia and four States
identified significant disproportionality in all three categories of
analysis--identification, placement, and in discipline. 81 FR 92380.
The Department is concerned, however, given the public comments it
has received in response to its general solicitation in 2017 on
regulatory reform, that the Equity in IDEA regulations may not
appropriately address the problem of significant disproportionality. We
therefore propose to postpone by two years the compliance dates for the
regulations so that we may review all of the issues raised and
determine how to better serve children with disabilities.
A number of commenters suggested, for example, that the Department
lacks the statutory authority under IDEA to require States to use a
standard methodology, pointing out as well that the Department's
previous position, adopted in the 2006 regulations implementing the
2004 amendments to IDEA, was that States are in the best position to
evaluate factors affecting determinations of significant
disproportionality.
Similarly, one detailed comment expressed concern that the standard
methodology improperly looks at group outcomes through statistical
measures rather than focusing on what is at the foundation of IDEA,
namely the needs of each individual child and on the appropriateness of
individual identifications, placements, or discipline. Further, a
number of commenters suggested that the standard methodology would
provide incentives to LEAs to establish numerical quotas on the number
of children who can be identified as children with disabilities,
assigned to certain classroom placements, or disciplined in certain
ways.
Finally, still other commenters suggested that the Department could
not accurately assess the impact of the regulations given that it did
not provide any standards by which it would assess the required
``reasonableness'' of State risk ratio thresholds and that calculations
of significant disproportionality should be better aligned with State
Performance Plan indicators, including the percent of districts that
have a significant discrepancy, by race or ethnicity, in the rate of
suspensions and expulsion for children with disabilities (Indicator
4B), and the percent of districts with disproportionate representation
of racial and ethnic groups in special education and related services
(Indicator 9) and in specific disability categories (Indicator 10) that
is the result of inappropriate identification.
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by the
Office of Management and Budget (OMB). Section 3(f) of Executive Order
12866 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 $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This proposed regulatory action is a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
[[Page 8398]]
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 upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor their 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 specifying the behavior or manner of compliance that regulated
entities must adopt; and
(5) Identify and assess available alternatives to direct
regulation, including providing 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.'' The Office of
Information and Regulatory Affairs of OMB 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 this proposed regulatory action only upon a reasoned
determination that its benefits justify its costs. Based on the
analysis that follows, the Department believes 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, and Tribal governments in the
exercise of their governmental functions.
In this regulatory impact analysis we discuss the need for
regulatory action, alternatives considered, the potential costs and
benefits, net budget impacts, assumptions, limitations, and data
sources.
Need for These Regulations
As explained in the previous section, we are proposing this
regulatory action in order to delay implementation of a regulation that
we are concerned may not meet its fundamental purpose, namely to
properly identify and address significant disproportionality among
children with disabilities. We propose the delay as well to give the
Department, the States, and the public additional time to study the
questions involved and determine how to better serve children with
disabilities.
Alternatives Considered
The Department considered proposing a delay of the compliance dates
for different lengths of time and decided upon two years as an
appropriate length, given a realistic measure of how long it takes the
agency to develop, propose, and promulgate complex regulations. In the
Department's experience, one year is too little time as a general
matter and, for these regulations in particular, given the amount of
work on this issue the Department has already done, three years is too
long.
Analysis of Costs and Benefits
The Department has analyzed the costs of complying with the
proposed regulatory action. While postponing the obligation to comply
with the regulations would not place any new requirements on States,
the delay in the compliance date would reduce costs over the 10 years
relative to the baseline set out in the December 2016 final rule.
The Department estimates that this regulatory action would generate
cost savings between $10.9 and $11.5 million, with a reduction in
transfers of between $59.6 and $63.0 million. These savings are driven
by two separate, but related factors: Fewer States implementing the
regulations during the 2018-19 and 2019-20 school years and, as a
result, the lower number of LEAs identified as having significant
disproportionality in each of those years under the standard
methodology.
In developing our estimates, the Department assumed that a small
number of States, who may already be prepared, or nearly prepared, to
implement the regulations on July 1, 2018 will continue to do so,
regardless of any delay in the compliance date. We also assume that a
subset of States will implement the regulations in the following school
year (2019-20), with the remainder of States waiting until the 2020
compliance date to implement the regulations. We assume that 10 States
would implement the revised regulations on July 1, 2018, five States
would implement them as of July 1, 2019, and the remaining 40 would
wait until July 1, 2020.
Further, the Department estimates that the number of LEAs
identified with significant disproportionality in each year as a result
of the revised regulations would be reduced due to the delay in
implementation. Previously, the Department estimated that 400 new LEAs
would be identified each year. We estimate that the delay in compliance
date would result in only 80 additional LEAs being identified in the
2018-2019 school year (a reduction of 320) and only 100 additional LEAs
identified in the 2019-20 school year (a reduction of 300). These
estimates assume that the number of additional LEAs identified each
year is roughly proportional to the number of States that implement the
revised regulations.\1\
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\1\ This calculation of savings includes a change to the
baseline in the December 2016 final rule due to an incorrect
calculation in the 3 percent discount rate, shown in detail in the
cost analysis spreadsheet posted in the docket with this document.
This calculation of cost savings does not change any of the
assumptions regarding wage rates, hours of burden, or number of
personnel that were discussed in the final rule. The assumptions
upon which the cost-benefit calculations in the final rule are based
are being evaluated by the Department as part of the review of the
final rule itself.
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Executive Order 13771
Consistent with Executive Order 13771 (82 FR 9339, February 3,
2017), we have estimated that this proposed regulatory action will not
impose any additional costs.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The U.S. Small Business Administration (SBA) Size Standards define
``small entities'' as for-profit or nonprofit institutions with total
annual revenue below $7,000,000 or, if they are institutions controlled
by small governmental jurisdictions (that are comprised of cities,
counties, towns, townships, villages, school districts, or special
districts), with a population of less than 50,000. These proposed
regulations would affect all LEAs, including the estimated 17,371 LEAs
that meet the definition of small entities. However, we have determined
that the proposed regulations would not have a significant economic
impact on these small entities. As stated earlier, this proposed
regulatory action imposes no new costs.
[[Page 8399]]
Paperwork Reduction Act of 1995
This regulatory action does not contain any information collection
requirements.
Intergovernmental Review
This program is 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 the Department's
specific plans and actions for this program.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the contact person listed
under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. 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:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects in 34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs--education, Privacy, Private
schools, Reporting and recordkeeping requirements.
Dated: February 23, 2018.
Johnny W. Collett,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2018-04102 Filed 2-23-18; 4:15 pm]
BILLING CODE 4000-01-P
