National Institute on Disability, Independent Living, and Rehabilitation Research, 50000-50004 [2022-17422]
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50000
Federal Register / Vol. 87, No. 156 / Monday, August 15, 2022 / Rules and Regulations
TABLE 1—EPA-APPROVED NON-REGULATORY AND QUASI-REGULATORY MEASURES—Continued
[Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] 1
Applicable
geographic or
nonattainment area
or title/subject
Name of SIP provision
*
*
*
State
submittal
date
EPA approval date
*
Explanation
*
*
*
1 Table
1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements (excluding Part D Elements and
Plans), Part D Elements and Plans (other than for the Metropolitan Phoenix or Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.
*
*
*
*
Authority: 42 U.S.C 7401 et seq.
*
Nogales: Santa Cruz County (part) for
‘‘Nogales planning area’’ to read as
follows:
Subpart C—Section 107 Attainment
Status Designations
PART 81—DESIGNATION OF AREAS
FOR AIR QUALITY PLANNING
PURPOSES
§ 81.303
4. Section 81.303 is amended by
revising the table ‘‘Arizona—2006 24Hour PM2.5 NAAQS,’’ the entry under
■
3. The authority citation for part 81
continues to read as follows:
■
*
*
Arizona.
*
*
*
ARIZONA—2006 24-HOUR PM2.5 NAAQS
[Primary and Secondary]
Designation a
Classification
Designated area
Date 1
Nogales:
Santa Cruz County (part) Nogales Planning area
bound as follows: The portions of the following
Townships which are within the State of Arizona
and lie east of 111 longitude: T23S, R13E,
T23S, R14E; T24S, R14E, T24S, R14E.
*
*
September 14, 2022 ......
*
Date 2
Type
Type
Attainment.
*
*
*
*
a Includes
1 This
2 This
*
Indian Country located in each county or area, except as otherwise specified.
date is 30 days after November 13, 2009, unless otherwise noted.
date is July 2, 2014, unless otherwise noted
*
*
*
*
[FR Doc. 2022–17189 Filed 8–12–22; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Community Living
45 CFR Part 1330
RIN 0985–AA16
National Institute on Disability,
Independent Living, and Rehabilitation
Research
Administration for Community
Living, Department of Health and
Human Services.
ACTION: Final rule.
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AGENCY:
The Administration for
Community Living (ACL) within the
Department of Health and Human
Services (HHS or the Department) is
amending its regulations for the
National Institute on Disability,
SUMMARY:
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Independent Living and Rehabilitation
Research (NIDILRR). These minor
amendments to NIDILRR’s peer review
criteria allow NIDILRR to better evaluate
the extent to which our grant applicants
conduct outreach to people with
disabilities and people from other
groups that traditionally have been
underserved and underrepresented, as
described in Executive Order 13985,
and emphasize the need for research
and development activities that apply
appropriate engineering knowledge and
techniques within NIDILRR’s
Rehabilitation Engineering Research
Centers (RERC) program.
DATES: These final regulations are
effective September 14, 2022.
FOR FURTHER INFORMATION CONTACT:
Phillip Beatty, Director, NIDILRR Office
of Research Sciences, Administration
for Community Living, Department of
Health and Human Services, 330 C
Street SW, Washington, DC 20201.
Email: phillip.beatty@acl.hhs.gov,
Telephone: (202) 795–7305.
SUPPLEMENTARY INFORMATION:
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I. Statutory Authority
ACL publishes this final rule under
the authority granted to the Director of
the National Institute on Disability,
Independent Living, and Rehabilitation
Research (the Director), under 29 U.S.C.
762(f) to provide for scientific peer
review of all applications for financial
assistance for research, training, and
demonstrations projects over which the
Director has authority; and under 29
U.S.C. 764(b)(3) to establish and support
Rehabilitation Engineering Research
Centers (RERCs).
II. Background
The HHS regulation for NIDILRR
programs was developed and finalized
in 2016 following the transfer of
NIDILRR to ACL and HHS from the
Department of Education, as required by
the Workforce Innovation and
Opportunity Act (WIOA) of 2014.
NIDILRR’s mission is to generate new
knowledge and to promote its effective
use to improve the abilities of
individuals with disabilities to perform
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activities of their choice in the
community as well as to expand
society’s capacity to provide full
opportunities and accommodations for
individuals with disabilities. As the
primary research enterprise within ACL,
NIDILRR’s mission is highly
complementary to the overarching
mission of ACL to maximize the
independence, well-being, and health of
older adults, people with disabilities
across the lifespan, and their families
and caregivers. NIDILRR programs
address a wide range of disabilities and
impairments across all age groups and
promote health and function,
community living and participation,
and employment. To accomplish these
goals, NIDILRR invests in research,
knowledge translation, and capacitybuilding activities through its
discretionary grant-funding authorities.
This final rule provides minor but
important updates to the NIDILRR rule
at 45 CFR part 1330).
III. Provisions of the Proposed
Regulations
The first update to 45 CFR part 1330
is directly responsive to Executive
Order 13985, Advancing Racial Equity
and Support for Underserved
Communities Through the Federal
Government, 86 FR 7009 (Jan. 20, 2021)
(E.O.). The purpose of the update is to
enable NIDILRR to better evaluate,
through the peer review of grant
applications, the extent to which grant
applicants conduct outreach to people
who are members of specific groups that
have traditionally been underserved and
underrepresented in research. See 86 FR
7009 (‘‘The term ‘underserved
communities’ refers to populations
sharing a particular characteristic, as
well as geographic communities, that
have been systematically denied a full
opportunity to participate in aspects of
economic, social, and civic life, as
exemplified by the list in the preceding
definition of ‘equity.’ ’’). The E.O.
defines ‘‘equity’’ as ‘‘consistent and
systematic fair, just, and impartial
treatment of all individuals, including
individuals who belong to underserved
communities that have been denied
such treatment, such as Black, Latino,
and Indigenous and Native American
persons, Asian Americans and Pacific
Islanders and other persons of color;
members of religious minorities;
lesbian, gay, bisexual, transgender, and
queer (LGBTQ+) persons; persons with
disabilities; persons who live in rural
areas; and persons otherwise adversely
affected by persistent poverty or
inequality.’’ Id. Applicant refers to
organizations such as universities or
other organizations that apply for
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NIDILRR grants. NIDILRR’s current
regulation regarding applicants’
proposed ‘‘Project Staff’’ (45 CFR
1330.24(n)) combines a significant
number of underrepresented groups into
one list (‘‘. . . based on race, color,
national origin, gender, age, or
disability’’), and asks reviewers to
broadly evaluate the extent to which the
grant applicant encourages applications
for employment from people who are
members of those groups in the list.
This format does not allow reviewers to
evaluate applicants’ outreach and hiring
practices for people with disabilities, or
for other underserved and
underrepresented populations
highlighted in the list, as distinct
groups.
To better promote applicants’ hiring
of people with disabilities, and people
from other underserved communities—
we proposed to revise 45 CFR
1330.24(n) to disaggregate these
populations into two distinct peer
review subcriteria. Disaggregation of
people with disabilities and people from
other underserved communities into
separate subcriteria allows peer
reviewers to more directly evaluate and
score the extent to which grant
applicants encourage applications for
employment from people in each of
these distinct groups. ACL also proposes
a conforming amendment to 45 CFR
1330.23(b) reflecting this revision to the
selection criteria. As a result of these
changes, applicants will be required to
describe their outreach practices with
respect to people with disabilities and
other specific groups, separately and
distinctly. ACL intends for grant
applicants to provide quantitative and/
or qualitative information regarding
these disaggregated groups in the
narrative of their proposal, and for peer
reviewers to accordingly use this
information to evaluate and score each
individual application.
The second update to 45 CFR part
1330 is intended to better emphasize the
need for engineering research and
development (R&D) activities in
NIDILRR’s RERC program funding
opportunities. The update would add
sub-criteria under both the ‘‘Design of
Research Activities’’ (45 CFR
1330.24(c)) and ‘‘Design of Development
Activities’’ (45 CFR 1330.24(d)) to allow
reviewers to evaluate the extent to
which applicants are proposing
engineering knowledge and methods
that are appropriate to the research
questions and development aims
described in their RERC applications.
The absence of such engineeringfocused criteria have led to some RERC
grants that are not optimally using
engineering R&D methods as envisioned
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in the statutory language that authorizes
and names the RERC program. See 29
U.S.C. 764(b)(3).
IV. Analysis of Responses to Public
Comments
We received fourteen public
comments from six individuals, five
stakeholder associations, and three
university departments. We have
reviewed all of the public comments
received and considered the concerns
raised by all stakeholders. As a result,
we have made revisions to the proposed
regulations at 45 CFR 1330.24.
Specifically, we have modified 45 CFR
1330.24(c), (d), and (n). See Section IV
‘‘Provisions of the Final Regulations’’
for detailed description of these
changes. A summary of the comments
received and our responses to those
comments appear in the paragraphs
below.
Comment: Five parties provided
comments that were fully supportive of
the proposed revisions to NIDILRR’s
menu of peer review criteria. Two of
these parties particularly appreciated
NIDILRR’s continued inclusion of
people who are underrepresented in
research professions based on age.
Response: We thank these
commenters for their support.
Comment: One commenter suggested
that the evaluation of the extent to
which applicant organizations
encourage applications from and hire
people with disabilities and people from
other underrepresented communities is
‘‘more appropriately evaluated by the
government’’, than by the peer review
process. The commenter suggests that
instead of evaluating these factors as
part of the peer review process, ACL
and NIDILRR should use documented
histories of applicant compliance or
noncompliance with the Americans
with Disabilities Act and other civil
rights laws and regulations, as a
determinant of eligibility for Federal
funding.
Response: NIDILRR and other ACL
and HHS grant opportunities have
strong non-discrimination requirements
for applicants, and NIDILRR grants are
issued with detailed Terms and
Conditions related to compliance with
government-wide non-discrimination
laws and regulations, including the
Americans with Disabilities Act, and the
Rehabilitation Act. ACL and NIDILRR
will maintain these important
compliance requirements and continue
to evolve and implement policies that
promote accessibility as a requirement
for Federal funding. However,
compliance with broad nondiscrimination laws is not the same as
purposefully encouraging applications
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Federal Register / Vol. 87, No. 156 / Monday, August 15, 2022 / Rules and Regulations
for employment from people with
disabilities and people from other
underrepresented and underserved
communities. NIDILRR and the field of
disability research has a strong and
direct interest in, and will benefit
significantly from, growth in the
representation of people with
disabilities and investigators from
underserved communities. This interest
is reflected in our long-standing peer
review sub-criterion about the extent to
which grant applicants encourage
applications for employment from
people with disabilities and people from
other underrepresented and
underserved communities. By
disaggregating this sub-criterion,
consistent with Executive Order 13985,
we aim to evaluate the extent to which
applicant organizations are encouraging
applications for employment from
people with disabilities and people from
other underrepresented and
underserved communities.
Comment: One commenter noted that
NIDILRR’s proposed disaggregated
Project Staff subcriteria will
appropriately promote consideration of
the extent to which applicant
organizations recruit people with
disabilities. This commenter suggested
that NIDILRR provide further specificity
in the disability sub-criterion, in a way
that would further value the recruitment
of people with disabilities who have the
greatest support needs. The commenter
suggested that NIDILRR provide a
scoring rubric for this disability subcriterion, which would potentially
provide more points for applicant
organizations that demonstrate efforts to
recruit and hire people with disabilities
who have the greatest support needs.
Response: NIDILRR agrees with the
commenter that people with disabilities
vary in their level of disability and
support needs. NIDILRR’s programs are
authorized by the Rehabilitation Act of
1973, as amended. The Rehabilitation
Act consistently emphasizes that the
programs that it authorizes, including
NIDILRR, must benefit people with
disabilities—especially people with the
most significant disabilities (29 U.S.C.
764(a)(1)). To reflect this foundational
emphasis in our authorizing statute,
NIDILRR is modifying the proposed subcriterion to state that people with
disabilities may include, but are not
limited to, people with disabilities who
have the greatest support needs.
While NIDILRR does not provide
scoring rubrics with its scoring criteria
and subcriteria in 45 CFR 1330(n), by
including this clarification in the subcriterion we specifically allow grant
applicants to describe, and reviewers to
evaluate the extent to which applicant
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organizations encourage applications
from people with disabilities who have
the greatest support needs.
Comment: One commenter noted
concern that grant applicant
organizations may be evaluated not just
on their commitment to increasing
representation of people with
disabilities or people from other
underrepresented communities in their
organizations, but on the data that they
can provide as evidence of recruitment
and hiring. The commenter noted that
individual researchers may not be able
to influence their organizations’
recruitment and hiring practices, and
therefore may be penalized because of
the practices of their organizations.
Response: ACL, NIDILRR, and most
other Federal grants are made to
organizations, and not directly to
individual researchers. As such, our
criteria purposefully address the plans,
actions, and resources of applicant
organizations, and not of individual
investigators. The commenter is correct
that NIDILRR aims to evaluate not just
the applicant organization’s
commitment to recruitment of people
with disabilities or people from other
underrepresented communities, but the
actions they have taken to encourage
applications for employment from
people with disabilities and people from
other underrepresented groups. It is up
to applicant organizations to determine
how they will address this sub-criterion,
and they may provide qualitative or
quantitative data in doing so.
Comment: Three commenters noted
that it will be difficult for an applicant
to provide evidence of hiring people
with disabilities or people from
underrepresented communities. One of
these commenters noted that
organizations’ collection of this
information from their employees is
typically voluntary, and therefore likely
unreliable. Two of these commenters
cautioned that the revised subcriteria
may place pressure on researchers and
their teams to disclose disabilities or to
disclose demographic characteristics
that they wish to remain private. Two of
the commenters suggested that NIDILRR
provide clarification to peer reviewers
on ways to address these subcriteria
while recognizing applicant institutions’
policies that do not require disclosure of
disability or other demographic
characteristics.
Response: Based upon these
comments, our final rule will not
include language that focuses on
applicants’ hiring practices. The final
rule will, as proposed, disaggregate
people with disabilities from other
underserved populations in 45 CFR
1330(n), and will continue to focus on
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the extent to which applicants
encourage applications for employment
from people with disabilities and other
underrepresented groups.
ACL intends for grant applicants to
respond to our disaggregated subcriteria
with qualitative or quantitative
information, or both, in the narrative of
their proposal. Peer reviewers will use
this information to evaluate and score
each individual application. As revised
for this final rule, nothing in the
proposed subcriteria language compels
applicants to provide quantitative data
that would require applicants or their
potential employees to disclose
disability or other individual
characteristics.
NIDILRR intentionally does not
further interpret these review criteria
that come from our program regulations
or provide guidance to applicants or
reviewers on the application of any of
the criteria. We rely on individual
reviewers to consistently apply these
and other criteria for each of the grant
applications they are reviewing. This
approach to peer review, which is
commonly used and accepted within
the scientific community, allows
reviewers with different perspectives
and areas of expertise to participate
meaningfully in the peer review
process.
Comment: Five commenters
supported the addition of proposed
engineering specifications to the
research and development subcriteria.
These commenters, however, suggested
that ACL and NIDILRR further specify
and define engineering as part of the
subcriteria, and offered a variety of
suggestions for further definition.
Response: NIDILRR has considered
this feedback, in the context of the
‘‘Design of Research Activities’’ and
‘‘Design of Development Activities’’
subcriteria that our proposed additions
would fit within, under 45 CFR
1330.24(c) and 45 CFR 1330.24(d).
Within those subcriteria, there are many
terms that NIDILRR could define in
much greater detail, but purposefully
does not. For instance, under ‘‘Design of
Research Activities,’’ there is a subcriterion about the extent to which the
data analysis methods are appropriate.
Instead of further delineating the wide
variety of data analysis methods that
could be proposed by applicants and
evaluated by reviewers, we leave the
application of this broad sub-criterion to
the applicants and reviewers. The
evaluation of the broad sub-criterion
about the appropriateness of data
analysis methods is only possible
within the context of the grant
application for which it is being
evaluated. For some applications, it is
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appropriate for applicants to propose
qualitative analysis of in-depth
interview data. For other applications, it
is appropriate for applicants to propose
statistical analysis of highly quantitative
data—depending on the applicant’s
aims and research questions. We do not
define each of the innumerable potential
data analysis methods that applicants
could propose.
The same logic and approach apply
under our proposed subcriteria related
to engineering. As noted by the
commenters, there are a wide range of
engineering specialties and approaches
that we could further define, including
but not limited to biomedical
engineering, electrical engineering,
mechanical engineering, and software
development and computer science.
NIDILRR’s intent, however, is for
reviewers to evaluate the extent to
which RERC applicants are applying
engineering knowledge and techniques
that are appropriate to address the aims
and objectives of the proposed RERC
grant.
To better reflect this specific intent,
NIDILRR is modifying our two proposed
subcriteria by adding ‘‘appropriate’’
prior to the word engineering.
Comment: NIDILRR received a
number of comments that were not
directly related to the proposed rule.
These comments focused on topics
including NIDILRR’s peer review
processes and policies, the availability
of researchers with disabilities in the
labor market, funding for
accommodations used by employees
with disabilities, and the importance of
research on the needs, experiences, and
outcomes of people with
communication disabilities.
Response: All of these are important
topics, and we look forward to engaging
with NIDILRR stakeholders on these
topics.
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V. Provisions of the Final Regulations
In this final rule, we are adopting the
provisions in the January 10 proposed
rule, with the following changes:
D Revised proposed 45 CFR
1330.24(c)(5) to add ‘‘appropriate’’ prior
to the word engineering.
D Revised proposed 45 CFR
1330.24(d)(4) to add ‘‘appropriate’’ prior
to the word engineering.
D Revised proposed 45 CFR
1330.24(n)(1) to specify that people with
disabilities may include, but are not
limited to, people with disabilities who
have the greatest support needs.
D Revised proposed 45 CFR
1330.24(n)(1) to delete ‘‘and hires.’’
D Revised proposed 45 CFR
1330.24(n)(2) to delete ‘‘and hires.’’
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D Revised proposed 45 CFR
1330.24(n)(2) to add ‘‘other.’’
VI. Required Regulatory Analyses
A. Executive Orders 12866 and 13563
E.O. 12866, ‘‘Regulatory Planning and
Review,’’ and E.O. 13563, ‘‘Improving
Regulation and Regulatory Review,’’
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if the regulation is
necessary, to select regulatory
approaches that maximize net benefits.
OMB determined that the rulemaking
was not an economically significant
regulatory action under these E.O.s. The
preambles to this rule maintained that it
primarily described procedural changes
that would require Department
expenditures to implement.
B. Regulatory Flexibility Act
The Department has examined the
economic implications of this final rule
as required by the Regulatory Flexibility
Act (RFA), 5 U.S.C. 601 et seq. The RFA
requires an agency to describe the
impact of a final rulemaking on small
entities by providing an initial
regulatory flexibility analysis, unless the
agency determines that the final rule
will not have a significant economic
impact on a substantial number of small
entities, provides a factual basis for this
determination, and certifies the
statement. 5 U.S.C. 603(a) and 605(b).
The Department considers a proposed or
final rule to have a significant economic
impact on a substantial number of small
entities if it has at least a three percent
impact on revenue of at least five
percent of small entities. The
Department has determined, and the
Secretary certifies, that this final rule
would not have a significant economic
impact on the operations of a substantial
number of small entities.
C. Executive Order 13132 (Federalism)
E.O. 13132, Federalism, 64 FR 43255
(Aug. 4, 1999) establishes certain
requirements that an agency must meet
when it promulgates a rule that imposes
substantial direct requirement costs on
state and local governments or has
federalism implications. The
Department has determined that this
final rule would not impose such costs
or have any federalism implications.
D. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
HHS has analyzed this final rule in
accordance with the principles set forth
in E.O. 13175, Consultation and
Coordination with Indian Tribal
Governments, 65 FR 67249 (Nov. 6,
2000). HHS has determined that the
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50003
final rule does not contain policies that
would have a substantial direct effect on
one or more Indian Tribes, on the
relationship between the Federal
Government and Indian Tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. In
accordance with the Department’s
Tribal consultation policy, the
Department solicited comments from
tribal officials on any potential impact
on Indian Tribes prior to promulgating
this final rule.
E. National Environmental Policy Act
HHS had determined that this final
rule would not have a significant impact
on the environment.
F. Paperwork Reduction Act of 1995
In accordance with the Paperwork
Reduction Act of 1995 and its
implementing regulations, 44 U.S.C.
3501–3521; 5 CFR part 1320, appendix
A.1, the Department has reviewed this
final rule and has determined that it
does not establish new collections of
information.
Alison Barkoff, Acting Administrator
Administration for Community Living
approved this document on July 13,
2022.
List of Subjects in 45 CFR Part 1330
Disability, Grant programs, Research.
Accordingly, ACL amends 45 CFR
part 1330 as follows:
PART 1330—NATIONAL INSTITUTE
FOR DISABILITY, INDEPENDENT
LIVING, AND REHABILITATION
RESEARCH
1. The authority citation for part 1330
continues to read as follows:
■
Authority: 29 U.S.C. 709, 3343.
2. Amend § 1330.23 by revising
paragraph (b) to read as follows:
■
§ 1330.23
Evaluation process.
*
*
*
*
*
(b) In considering selection criteria in
§ 1330.24, the Director selects one or
more of the factors listed in the criteria,
but always considers the factors in
§ 1330.24(n) regarding people with
disabilities, and members of groups that
have traditionally been
underrepresented based on race,
ethnicity, national origin, sex (including
sexual orientation and gender identity),
or age.
*
*
*
*
*
■ 3. Amend § 1330.24 by adding
paragraphs (c)(5) and (d)(4) and revising
paragraph (n) to read as follows:
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§ 1330.24
Federal Register / Vol. 87, No. 156 / Monday, August 15, 2022 / Rules and Regulations
Selection criteria.
*
*
*
*
(c) * * *
(5) The extent to which research
activities use appropriate engineering
knowledge and techniques to collect,
analyze, or synthesize research data.
(d) * * *
(4) The extent to which development
activities apply appropriate engineering
knowledge and techniques to achieve
development objectives.
*
*
*
*
*
(n) Project staff. In determining the
quality of the applicant’s project staff,
the Director considers one or more of
the following factors:
(1) The extent to which the applicant
encourages applications for employment
from people with disabilities, who may
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*
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include but are not limited to people
with disabilities who have the greatest
support needs.
(2) The extent to which the applicant
encourages applications for employment
from people who are members of other
groups that have traditionally been
underrepresented in research
professions based on race, ethnicity,
national origin, sex (including sexual
orientation and gender identity), or age.
(3) The extent to which the key
personnel and other key staff have
appropriate training and experience in
disciplines required to conduct all
proposed activities.
(4) The extent to which the
commitment of staff time is adequate to
accomplish all the proposed activities of
the project.
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(5) The extent to which the key
personnel are knowledgeable about the
methodology and literature of pertinent
subject areas.
(6) The extent to which the project
staff includes outstanding scientists in
the field.
(7) The extent to which key personnel
have up-to-date knowledge from
research or effective practice in the
subject area covered in the priority.
*
*
*
*
*
Dated: August 9, 2022.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
[FR Doc. 2022–17422 Filed 8–12–22; 8:45 am]
BILLING CODE 4154–01–P
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Agencies
[Federal Register Volume 87, Number 156 (Monday, August 15, 2022)]
[Rules and Regulations]
[Pages 50000-50004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17422]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living
45 CFR Part 1330
RIN 0985-AA16
National Institute on Disability, Independent Living, and
Rehabilitation Research
AGENCY: Administration for Community Living, Department of Health and
Human Services.
ACTION: Final rule.
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SUMMARY: The Administration for Community Living (ACL) within the
Department of Health and Human Services (HHS or the Department) is
amending its regulations for the National Institute on Disability,
Independent Living and Rehabilitation Research (NIDILRR). These minor
amendments to NIDILRR's peer review criteria allow NIDILRR to better
evaluate the extent to which our grant applicants conduct outreach to
people with disabilities and people from other groups that
traditionally have been underserved and underrepresented, as described
in Executive Order 13985, and emphasize the need for research and
development activities that apply appropriate engineering knowledge and
techniques within NIDILRR's Rehabilitation Engineering Research Centers
(RERC) program.
DATES: These final regulations are effective September 14, 2022.
FOR FURTHER INFORMATION CONTACT: Phillip Beatty, Director, NIDILRR
Office of Research Sciences, Administration for Community Living,
Department of Health and Human Services, 330 C Street SW, Washington,
DC 20201. Email: [email protected], Telephone: (202) 795-7305.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
ACL publishes this final rule under the authority granted to the
Director of the National Institute on Disability, Independent Living,
and Rehabilitation Research (the Director), under 29 U.S.C. 762(f) to
provide for scientific peer review of all applications for financial
assistance for research, training, and demonstrations projects over
which the Director has authority; and under 29 U.S.C. 764(b)(3) to
establish and support Rehabilitation Engineering Research Centers
(RERCs).
II. Background
The HHS regulation for NIDILRR programs was developed and finalized
in 2016 following the transfer of NIDILRR to ACL and HHS from the
Department of Education, as required by the Workforce Innovation and
Opportunity Act (WIOA) of 2014. NIDILRR's mission is to generate new
knowledge and to promote its effective use to improve the abilities of
individuals with disabilities to perform
[[Page 50001]]
activities of their choice in the community as well as to expand
society's capacity to provide full opportunities and accommodations for
individuals with disabilities. As the primary research enterprise
within ACL, NIDILRR's mission is highly complementary to the
overarching mission of ACL to maximize the independence, well-being,
and health of older adults, people with disabilities across the
lifespan, and their families and caregivers. NIDILRR programs address a
wide range of disabilities and impairments across all age groups and
promote health and function, community living and participation, and
employment. To accomplish these goals, NIDILRR invests in research,
knowledge translation, and capacity-building activities through its
discretionary grant-funding authorities.
This final rule provides minor but important updates to the NIDILRR
rule at 45 CFR part 1330).
III. Provisions of the Proposed Regulations
The first update to 45 CFR part 1330 is directly responsive to
Executive Order 13985, Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, 86 FR 7009
(Jan. 20, 2021) (E.O.). The purpose of the update is to enable NIDILRR
to better evaluate, through the peer review of grant applications, the
extent to which grant applicants conduct outreach to people who are
members of specific groups that have traditionally been underserved and
underrepresented in research. See 86 FR 7009 (``The term `underserved
communities' refers to populations sharing a particular characteristic,
as well as geographic communities, that have been systematically denied
a full opportunity to participate in aspects of economic, social, and
civic life, as exemplified by the list in the preceding definition of
`equity.' ''). The E.O. defines ``equity'' as ``consistent and
systematic fair, just, and impartial treatment of all individuals,
including individuals who belong to underserved communities that have
been denied such treatment, such as Black, Latino, and Indigenous and
Native American persons, Asian Americans and Pacific Islanders and
other persons of color; members of religious minorities; lesbian, gay,
bisexual, transgender, and queer (LGBTQ+) persons; persons with
disabilities; persons who live in rural areas; and persons otherwise
adversely affected by persistent poverty or inequality.'' Id. Applicant
refers to organizations such as universities or other organizations
that apply for NIDILRR grants. NIDILRR's current regulation regarding
applicants' proposed ``Project Staff'' (45 CFR 1330.24(n)) combines a
significant number of underrepresented groups into one list (``. . .
based on race, color, national origin, gender, age, or disability''),
and asks reviewers to broadly evaluate the extent to which the grant
applicant encourages applications for employment from people who are
members of those groups in the list. This format does not allow
reviewers to evaluate applicants' outreach and hiring practices for
people with disabilities, or for other underserved and underrepresented
populations highlighted in the list, as distinct groups.
To better promote applicants' hiring of people with disabilities,
and people from other underserved communities--we proposed to revise 45
CFR 1330.24(n) to disaggregate these populations into two distinct peer
review subcriteria. Disaggregation of people with disabilities and
people from other underserved communities into separate subcriteria
allows peer reviewers to more directly evaluate and score the extent to
which grant applicants encourage applications for employment from
people in each of these distinct groups. ACL also proposes a conforming
amendment to 45 CFR 1330.23(b) reflecting this revision to the
selection criteria. As a result of these changes, applicants will be
required to describe their outreach practices with respect to people
with disabilities and other specific groups, separately and distinctly.
ACL intends for grant applicants to provide quantitative and/or
qualitative information regarding these disaggregated groups in the
narrative of their proposal, and for peer reviewers to accordingly use
this information to evaluate and score each individual application.
The second update to 45 CFR part 1330 is intended to better
emphasize the need for engineering research and development (R&D)
activities in NIDILRR's RERC program funding opportunities. The update
would add sub-criteria under both the ``Design of Research Activities''
(45 CFR 1330.24(c)) and ``Design of Development Activities'' (45 CFR
1330.24(d)) to allow reviewers to evaluate the extent to which
applicants are proposing engineering knowledge and methods that are
appropriate to the research questions and development aims described in
their RERC applications. The absence of such engineering-focused
criteria have led to some RERC grants that are not optimally using
engineering R&D methods as envisioned in the statutory language that
authorizes and names the RERC program. See 29 U.S.C. 764(b)(3).
IV. Analysis of Responses to Public Comments
We received fourteen public comments from six individuals, five
stakeholder associations, and three university departments. We have
reviewed all of the public comments received and considered the
concerns raised by all stakeholders. As a result, we have made
revisions to the proposed regulations at 45 CFR 1330.24. Specifically,
we have modified 45 CFR 1330.24(c), (d), and (n). See Section IV
``Provisions of the Final Regulations'' for detailed description of
these changes. A summary of the comments received and our responses to
those comments appear in the paragraphs below.
Comment: Five parties provided comments that were fully supportive
of the proposed revisions to NIDILRR's menu of peer review criteria.
Two of these parties particularly appreciated NIDILRR's continued
inclusion of people who are underrepresented in research professions
based on age.
Response: We thank these commenters for their support.
Comment: One commenter suggested that the evaluation of the extent
to which applicant organizations encourage applications from and hire
people with disabilities and people from other underrepresented
communities is ``more appropriately evaluated by the government'', than
by the peer review process. The commenter suggests that instead of
evaluating these factors as part of the peer review process, ACL and
NIDILRR should use documented histories of applicant compliance or
noncompliance with the Americans with Disabilities Act and other civil
rights laws and regulations, as a determinant of eligibility for
Federal funding.
Response: NIDILRR and other ACL and HHS grant opportunities have
strong non-discrimination requirements for applicants, and NIDILRR
grants are issued with detailed Terms and Conditions related to
compliance with government-wide non-discrimination laws and
regulations, including the Americans with Disabilities Act, and the
Rehabilitation Act. ACL and NIDILRR will maintain these important
compliance requirements and continue to evolve and implement policies
that promote accessibility as a requirement for Federal funding.
However, compliance with broad non-discrimination laws is not the same
as purposefully encouraging applications
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for employment from people with disabilities and people from other
underrepresented and underserved communities. NIDILRR and the field of
disability research has a strong and direct interest in, and will
benefit significantly from, growth in the representation of people with
disabilities and investigators from underserved communities. This
interest is reflected in our long-standing peer review sub-criterion
about the extent to which grant applicants encourage applications for
employment from people with disabilities and people from other
underrepresented and underserved communities. By disaggregating this
sub-criterion, consistent with Executive Order 13985, we aim to
evaluate the extent to which applicant organizations are encouraging
applications for employment from people with disabilities and people
from other underrepresented and underserved communities.
Comment: One commenter noted that NIDILRR's proposed disaggregated
Project Staff subcriteria will appropriately promote consideration of
the extent to which applicant organizations recruit people with
disabilities. This commenter suggested that NIDILRR provide further
specificity in the disability sub-criterion, in a way that would
further value the recruitment of people with disabilities who have the
greatest support needs. The commenter suggested that NIDILRR provide a
scoring rubric for this disability sub-criterion, which would
potentially provide more points for applicant organizations that
demonstrate efforts to recruit and hire people with disabilities who
have the greatest support needs.
Response: NIDILRR agrees with the commenter that people with
disabilities vary in their level of disability and support needs.
NIDILRR's programs are authorized by the Rehabilitation Act of 1973, as
amended. The Rehabilitation Act consistently emphasizes that the
programs that it authorizes, including NIDILRR, must benefit people
with disabilities--especially people with the most significant
disabilities (29 U.S.C. 764(a)(1)). To reflect this foundational
emphasis in our authorizing statute, NIDILRR is modifying the proposed
sub-criterion to state that people with disabilities may include, but
are not limited to, people with disabilities who have the greatest
support needs.
While NIDILRR does not provide scoring rubrics with its scoring
criteria and subcriteria in 45 CFR 1330(n), by including this
clarification in the sub-criterion we specifically allow grant
applicants to describe, and reviewers to evaluate the extent to which
applicant organizations encourage applications from people with
disabilities who have the greatest support needs.
Comment: One commenter noted concern that grant applicant
organizations may be evaluated not just on their commitment to
increasing representation of people with disabilities or people from
other underrepresented communities in their organizations, but on the
data that they can provide as evidence of recruitment and hiring. The
commenter noted that individual researchers may not be able to
influence their organizations' recruitment and hiring practices, and
therefore may be penalized because of the practices of their
organizations.
Response: ACL, NIDILRR, and most other Federal grants are made to
organizations, and not directly to individual researchers. As such, our
criteria purposefully address the plans, actions, and resources of
applicant organizations, and not of individual investigators. The
commenter is correct that NIDILRR aims to evaluate not just the
applicant organization's commitment to recruitment of people with
disabilities or people from other underrepresented communities, but the
actions they have taken to encourage applications for employment from
people with disabilities and people from other underrepresented groups.
It is up to applicant organizations to determine how they will address
this sub-criterion, and they may provide qualitative or quantitative
data in doing so.
Comment: Three commenters noted that it will be difficult for an
applicant to provide evidence of hiring people with disabilities or
people from underrepresented communities. One of these commenters noted
that organizations' collection of this information from their employees
is typically voluntary, and therefore likely unreliable. Two of these
commenters cautioned that the revised subcriteria may place pressure on
researchers and their teams to disclose disabilities or to disclose
demographic characteristics that they wish to remain private. Two of
the commenters suggested that NIDILRR provide clarification to peer
reviewers on ways to address these subcriteria while recognizing
applicant institutions' policies that do not require disclosure of
disability or other demographic characteristics.
Response: Based upon these comments, our final rule will not
include language that focuses on applicants' hiring practices. The
final rule will, as proposed, disaggregate people with disabilities
from other underserved populations in 45 CFR 1330(n), and will continue
to focus on the extent to which applicants encourage applications for
employment from people with disabilities and other underrepresented
groups.
ACL intends for grant applicants to respond to our disaggregated
subcriteria with qualitative or quantitative information, or both, in
the narrative of their proposal. Peer reviewers will use this
information to evaluate and score each individual application. As
revised for this final rule, nothing in the proposed subcriteria
language compels applicants to provide quantitative data that would
require applicants or their potential employees to disclose disability
or other individual characteristics.
NIDILRR intentionally does not further interpret these review
criteria that come from our program regulations or provide guidance to
applicants or reviewers on the application of any of the criteria. We
rely on individual reviewers to consistently apply these and other
criteria for each of the grant applications they are reviewing. This
approach to peer review, which is commonly used and accepted within the
scientific community, allows reviewers with different perspectives and
areas of expertise to participate meaningfully in the peer review
process.
Comment: Five commenters supported the addition of proposed
engineering specifications to the research and development subcriteria.
These commenters, however, suggested that ACL and NIDILRR further
specify and define engineering as part of the subcriteria, and offered
a variety of suggestions for further definition.
Response: NIDILRR has considered this feedback, in the context of
the ``Design of Research Activities'' and ``Design of Development
Activities'' subcriteria that our proposed additions would fit within,
under 45 CFR 1330.24(c) and 45 CFR 1330.24(d). Within those
subcriteria, there are many terms that NIDILRR could define in much
greater detail, but purposefully does not. For instance, under ``Design
of Research Activities,'' there is a sub-criterion about the extent to
which the data analysis methods are appropriate. Instead of further
delineating the wide variety of data analysis methods that could be
proposed by applicants and evaluated by reviewers, we leave the
application of this broad sub-criterion to the applicants and
reviewers. The evaluation of the broad sub-criterion about the
appropriateness of data analysis methods is only possible within the
context of the grant application for which it is being evaluated. For
some applications, it is
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appropriate for applicants to propose qualitative analysis of in-depth
interview data. For other applications, it is appropriate for
applicants to propose statistical analysis of highly quantitative
data--depending on the applicant's aims and research questions. We do
not define each of the innumerable potential data analysis methods that
applicants could propose.
The same logic and approach apply under our proposed subcriteria
related to engineering. As noted by the commenters, there are a wide
range of engineering specialties and approaches that we could further
define, including but not limited to biomedical engineering, electrical
engineering, mechanical engineering, and software development and
computer science. NIDILRR's intent, however, is for reviewers to
evaluate the extent to which RERC applicants are applying engineering
knowledge and techniques that are appropriate to address the aims and
objectives of the proposed RERC grant.
To better reflect this specific intent, NIDILRR is modifying our
two proposed subcriteria by adding ``appropriate'' prior to the word
engineering.
Comment: NIDILRR received a number of comments that were not
directly related to the proposed rule. These comments focused on topics
including NIDILRR's peer review processes and policies, the
availability of researchers with disabilities in the labor market,
funding for accommodations used by employees with disabilities, and the
importance of research on the needs, experiences, and outcomes of
people with communication disabilities.
Response: All of these are important topics, and we look forward to
engaging with NIDILRR stakeholders on these topics.
V. Provisions of the Final Regulations
In this final rule, we are adopting the provisions in the January
10 proposed rule, with the following changes:
[ssquf] Revised proposed 45 CFR 1330.24(c)(5) to add
``appropriate'' prior to the word engineering.
[ssquf] Revised proposed 45 CFR 1330.24(d)(4) to add
``appropriate'' prior to the word engineering.
[ssquf] Revised proposed 45 CFR 1330.24(n)(1) to specify that
people with disabilities may include, but are not limited to, people
with disabilities who have the greatest support needs.
[ssquf] Revised proposed 45 CFR 1330.24(n)(1) to delete ``and
hires.''
[ssquf] Revised proposed 45 CFR 1330.24(n)(2) to delete ``and
hires.''
[ssquf] Revised proposed 45 CFR 1330.24(n)(2) to add ``other.''
VI. Required Regulatory Analyses
A. Executive Orders 12866 and 13563
E.O. 12866, ``Regulatory Planning and Review,'' and E.O. 13563,
``Improving Regulation and Regulatory Review,'' direct agencies to
assess all costs and benefits of available regulatory alternatives and,
if the regulation is necessary, to select regulatory approaches that
maximize net benefits.
OMB determined that the rulemaking was not an economically
significant regulatory action under these E.O.s. The preambles to this
rule maintained that it primarily described procedural changes that
would require Department expenditures to implement.
B. Regulatory Flexibility Act
The Department has examined the economic implications of this final
rule as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 601
et seq. The RFA requires an agency to describe the impact of a final
rulemaking on small entities by providing an initial regulatory
flexibility analysis, unless the agency determines that the final rule
will not have a significant economic impact on a substantial number of
small entities, provides a factual basis for this determination, and
certifies the statement. 5 U.S.C. 603(a) and 605(b). The Department
considers a proposed or final rule to have a significant economic
impact on a substantial number of small entities if it has at least a
three percent impact on revenue of at least five percent of small
entities. The Department has determined, and the Secretary certifies,
that this final rule would not have a significant economic impact on
the operations of a substantial number of small entities.
C. Executive Order 13132 (Federalism)
E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999) establishes
certain requirements that an agency must meet when it promulgates a
rule that imposes substantial direct requirement costs on state and
local governments or has federalism implications. The Department has
determined that this final rule would not impose such costs or have any
federalism implications.
D. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
HHS has analyzed this final rule in accordance with the principles
set forth in E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249 (Nov. 6, 2000). HHS has determined that
the final rule does not contain policies that would have a substantial
direct effect on one or more Indian Tribes, on the relationship between
the Federal Government and Indian Tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
Tribes. In accordance with the Department's Tribal consultation policy,
the Department solicited comments from tribal officials on any
potential impact on Indian Tribes prior to promulgating this final
rule.
E. National Environmental Policy Act
HHS had determined that this final rule would not have a
significant impact on the environment.
F. Paperwork Reduction Act of 1995
In accordance with the Paperwork Reduction Act of 1995 and its
implementing regulations, 44 U.S.C. 3501-3521; 5 CFR part 1320,
appendix A.1, the Department has reviewed this final rule and has
determined that it does not establish new collections of information.
Alison Barkoff, Acting Administrator Administration for Community
Living approved this document on July 13, 2022.
List of Subjects in 45 CFR Part 1330
Disability, Grant programs, Research.
Accordingly, ACL amends 45 CFR part 1330 as follows:
PART 1330--NATIONAL INSTITUTE FOR DISABILITY, INDEPENDENT LIVING,
AND REHABILITATION RESEARCH
0
1. The authority citation for part 1330 continues to read as follows:
Authority: 29 U.S.C. 709, 3343.
0
2. Amend Sec. 1330.23 by revising paragraph (b) to read as follows:
Sec. 1330.23 Evaluation process.
* * * * *
(b) In considering selection criteria in Sec. 1330.24, the
Director selects one or more of the factors listed in the criteria, but
always considers the factors in Sec. 1330.24(n) regarding people with
disabilities, and members of groups that have traditionally been
underrepresented based on race, ethnicity, national origin, sex
(including sexual orientation and gender identity), or age.
* * * * *
0
3. Amend Sec. 1330.24 by adding paragraphs (c)(5) and (d)(4) and
revising paragraph (n) to read as follows:
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Sec. 1330.24 Selection criteria.
* * * * *
(c) * * *
(5) The extent to which research activities use appropriate
engineering knowledge and techniques to collect, analyze, or synthesize
research data.
(d) * * *
(4) The extent to which development activities apply appropriate
engineering knowledge and techniques to achieve development objectives.
* * * * *
(n) Project staff. In determining the quality of the applicant's
project staff, the Director considers one or more of the following
factors:
(1) The extent to which the applicant encourages applications for
employment from people with disabilities, who may include but are not
limited to people with disabilities who have the greatest support
needs.
(2) The extent to which the applicant encourages applications for
employment from people who are members of other groups that have
traditionally been underrepresented in research professions based on
race, ethnicity, national origin, sex (including sexual orientation and
gender identity), or age.
(3) The extent to which the key personnel and other key staff have
appropriate training and experience in disciplines required to conduct
all proposed activities.
(4) The extent to which the commitment of staff time is adequate to
accomplish all the proposed activities of the project.
(5) The extent to which the key personnel are knowledgeable about
the methodology and literature of pertinent subject areas.
(6) The extent to which the project staff includes outstanding
scientists in the field.
(7) The extent to which key personnel have up-to-date knowledge
from research or effective practice in the subject area covered in the
priority.
* * * * *
Dated: August 9, 2022.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-17422 Filed 8-12-22; 8:45 am]
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