Education Department General Administrative Regulations and Related Regulatory Provisions, 1982-2031 [2023-27682]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 89, Number 8 (Thursday, January 11, 2024)]
[Proposed Rules]
[Pages 1982-2031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27682]



[[Page 1981]]

Vol. 89

Thursday,

No. 8

January 11, 2024

Part II





Department of Education





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





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

Federal Register / Vol. 89 , No. 8 / Thursday, January 11, 2024 / 
Proposed Rules

[[Page 1982]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 75, 76, 77, 79, and 299

RIN 1875-AA14
[Docket ID ED-2023-OPEPD-0110]


Education Department General Administrative Regulations and 
Related Regulatory Provisions

AGENCY: Office of Planning, Evaluation and Policy Development, 
Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary of Education proposes to amend the Education 
Department General Administrative Regulations (EDGAR) and associated 
regulatory provisions to update the regulations and better align them 
with other U.S. Department of Education (Department) regulations and 
procedures. A brief summary of the proposed rule is available on 
Regulations.gov in the docket for the rulemaking.

DATES: We must receive your comments on or before February 26, 2024.

ADDRESSES: Comments must be submitted electronically via the Federal 
eRulemaking Portal at www.regulations.gov. However, if you require an 
accommodation or cannot otherwise submit your comments via https://www.regulations.gov, please contact the program contact person listed 
under FOR FURTHER INFORMATION CONTACT. The Department will not accept 
comments submitted after the comment period closes. To ensure that we 
do not receive duplicate copies, please submit your comments only once. 
In addition, please include the Docket ID at the top of your comments.
    Information on using Regulations.gov, including instructions for 
accessing agency documents, submitting comments, and viewing the 
docket, is available on the site under ``FAQ.''
    Note: The Department's policy is generally to make comments 
received from members of the public available for public viewing in 
their entirety at www.regulations.gov. Therefore, commenters should be 
careful to include in their comments only information that they wish to 
make publicly available. Commenters should not include in their 
comments any information that identifies other individuals or that 
permits readers to identify other individuals. The Department will not 
make comments that contain personally identifiable information about 
someone other than the commenter publicly available on 
www.regulations.gov for privacy reasons. Therefore, commenters should 
be careful to include in their comments only information that they wish 
to make publicly available.

FOR FURTHER INFORMATION CONTACT: Kelly Terpak, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 4C212, Washington, DC 20202. 
Telephone: (202) 245-6776. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of this Regulatory Action: The last major update to EDGAR 
was in 2013. Given that EDGAR serves as the foundational set of 
regulations for the Department, we have reviewed EDGAR, evaluated it 
for provisions that, over time, have become outdated, unnecessary, or 
inconsistent with other Department regulations, and identified ways in 
which EDGAR could be updated, streamlined, and otherwise improved. 
Specifically, we propose to amend parts 75, 76, 77, 79, and 299 of 
title 34 of the Code of Federal Regulations. These changes are detailed 
in the Summary of Major Provisions of this Regulatory Action and the 
Significant Proposed Regulations section of this document.
    Summary of Major Provisions of this Regulatory Action: As discussed 
in greater detail in the Significant Proposed Regulations section of 
this document, the proposed regulations would:
     Make technical updates to refer to up-to-date statutory 
authorities, remove outdated terminology, use consistent references, 
and eliminate obsolete cross-references.
     Align EDGAR with updates in the most recent 
reauthorization of the Elementary and Secondary Education Act of 1965 
(ESEA). For example, updates to EDGAR would revise the tiers of 
evidence to incorporate and parallel those in the ESEA and would 
specify the procedures used to give special consideration to an 
application supported by evidence in Sec.  75.226.
     Clarify, streamline, and expand the selection criteria the 
Secretary may use to make discretionary awards under Sec.  75.210.
     Clarify procedural approaches, such as those related to 
making continuation awards under Sec.  75.253, and exceptions to the 
typical process for new awards under Sec.  75.219, such as if a grant 
application had been mishandled.
     Improve public access to research and evaluation related 
to Department-funded projects by requiring, under Sec. Sec.  75.590 and 
75.623, that each grantee that prepares an evaluation or a peer-
reviewed scholarly publication as part of the grant award or on the 
basis of grant-funded research make the final evaluation report or 
peer-reviewed scholarly publication available through the Education 
Resource Information Center (ERIC), which is current practice of the 
Department's Institute of Education Sciences (IES).
     Expand and clarify flexibility for the Department in 
administering its grants programs, including by--
    [cir] Providing the Department the option to require applicants 
under grant programs to include a logic model supporting their proposed 
project under Sec.  75.112;
    [cir] Replacing the definition in Sec.  75.225 of ``novice 
applicant'' with a broader definition of ``new potential grantee,'' to 
allow additional flexibility to give special consideration to such 
grantees and increase equity in the applicant pool and recipients of 
Department funds;
    [cir] Allowing the Department to require a grantee to conduct an 
independent evaluation of their project and make the results of such an 
evaluation public under Sec.  75.590;
    [cir] Defining ``independent evaluation'' under Sec.  77.1(c);
    [cir] Clarifying under Sec.  76.50 that, where not prohibited by 
law, regulation, or the terms and conditions of the grant award, States 
have subgranting authority;
    [cir] Allowing States flexibility under Sec.  76.140 to adopt a 
process for amending a State plan that is distinct from the process 
used for initial approval; and
    [cir] Clarifying the hearing and appeal process under Sec.  76.401 
for subgrants of State-administered formula grant programs, including 
by clarifying that aggrieved applicants must allege that a specific 
Federal or State statute or regulation has been violated.
     Consolidating and clarifying regulations about 
participation of private school children, teachers, and other 
educational personnel in part 299.
    Costs and Benefits: The Department believes that the benefits of 
this regulatory action would outweigh any associated costs to States, 
local educational agencies (LEAs), and other Department applicants and 
grantees. The proposed regulations would, in part, update terminology 
to align with applicable statutes and regulations. Many of the 
adjustments would support the Department, its grantees, or both, in 
selecting high-quality grantees and to support those grantees in 
ensuring the effectiveness and continuous

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improvement of their projects. These changes include, for example, 
adding potential selection criteria that apply only to programs that 
elect to use them, as announced in a notice inviting applications 
(NIA), and clarifying the language in selection criteria for applicants 
and peer reviewers. Please refer to the Regulatory Impact Analysis 
section of this document for a more detailed discussion of costs and 
benefits. Consistent with Executive Order 12866, as amended most 
recently by Executive Order 14094, the Secretary has determined that 
this action is significant and, thus, is subject to review by the 
Office of Management and Budget.
    Incorporation by Reference: Proposed Sec.  75.616 incorporates by 
reference the American Society of Heating, Refrigerating, and Air 
Conditioning Engineers (ASHRAE) Standard 90.1. ASHRAE is included in 
the construction section focused on energy conservation and has been 
included in EDGAR for over 30 years. The ASHRAE standards are the 
industry leading standards and are relevant to the construction 
regulations in this section of EDGAR because grantees need to know the 
current standard with which they must comply. Standard 90.1 has been a 
benchmark for commercial building energy codes in the United States, 
and a key basis for codes and standards around the world, for almost 
half a century. This standard provides the minimum requirements for 
energy-efficient design of most sites and buildings, except low-rise 
residential buildings. It offers, in detail, the minimum energy 
efficiency requirements for design and construction of new sites and 
buildings and their systems, new portions of buildings and their 
systems, and new systems and equipment in existing buildings, as well 
as criteria for determining compliance with these requirements. It is 
an indispensable reference for engineers and other professionals 
involved in design of buildings, sites, and building systems. This 
standard is available to the public at www.ashrae.org/technical-resources/bookstore/standard-90-1.
    Proposed Sec.  77.1 incorporates by reference the What Works 
Clearinghouse (WWC) Procedures and Standards Handbook, Version 5.0. The 
purpose of the What Works Clearinghouse is to review and summarize the 
quality of existing research in educational programs, products, 
practices, and policies. We incorporate the Handbook, which provides a 
detailed description of the standards and procedures of the WWC, by 
reference. The Handbook is available to interested parties at https://ies.ed.gov/ncee/wwc/Handbooks. The Version 5.0 Handbook includes a new 
Chapter I, Overview of the What Works Clearinghouse and Its Procedures 
and Standards and aligns the flow of content with the study review 
process. Additionally, it no longer allows for topic-specific 
customization of the standards, aligns its effectiveness ratings with 
the evidence definitions in Sec.  77.1(c), and describes other 
protocols for specific study designs. More details are available at 
https://ies.ed.gov/ncee/WWC/Docs/referenceresources/Final_HandbookSummary-v5-0-508.pdf.
    The WWC is an initiative of the Department's National Center for 
Education Evaluation and Regional Assistance, within IES, which was 
established under the Education Sciences Reform Act of 2002 (Title I of 
Pub. L. 107-279). The WWC is an important part of the Department's 
strategy to use rigorous and relevant research, evaluation, and 
statistics to inform decisions in the field of education. The WWC 
provides critical assessments of scientific evidence on the 
effectiveness of education programs, policies, products, and practices 
(referred to as ``interventions'') and a range of publications and 
tools summarizing this evidence. The WWC meets the need for credible, 
succinct information by reviewing research studies, assessing the 
quality of the research, summarizing the evidence of the effectiveness 
of interventions on student outcomes and other outcomes related to 
education, and disseminating its findings broadly.
    This handbook is available to the public at https://ies.ed.gov/ncee/wwc/handbooks#procedures.
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations.
    The following standards appear in the amendatory text of the 
document and have already been approved for the locations in which they 
appear: What Works Clearinghouse Standards Handbook, Versions 4.0 and 
4.1; What Works Clearinghouse Procedures Handbook, Versions 4.0 and 
4.1; and the What Works Clearinghouse Procedures and Standards 
Handbook, Versions 2.1 and 3.0.
    To ensure that your comments have maximum effect in developing the 
final regulations, we urge you to clearly identify the specific section 
or sections of the proposed regulations that each of your comments 
addresses, and to provide relevant information and data whenever 
possible, even if there is no specific solicitation of data and other 
supporting materials in the request for comment. We also urge you to 
arrange your comments in the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866, 13563, and 14094 and their 
overall goal of reducing the regulatory burden that might result from 
the proposed regulations. Please let us know of any further ways that 
we may reduce potential costs or increase potential benefits, while 
preserving the effective and efficient administration of the 
Department's programs and activities. We also welcome comments on any 
alternative approaches to the subjects addressed by the proposed 
regulations.
    During and after the comment period, you may inspect all public 
comments about the proposed regulations by accessing Regulations.gov. 
You may also inspect the comments in person. Please contact the person 
listed under FOR FURTHER INFORMATION CONTACT to make arrangements to 
inspect the comments in person.
    Directed Questions: One of the Department's goals in these proposed 
regulations, in addition to helping strengthen and streamline 
implementation and monitoring of Department grants, is to better 
support continuous improvement--encouraging grantees to use research, 
data, community and other engagement, and other feedback to 
periodically review and improve their project plans to best advance 
their programmatic objectives. We particularly welcome comments on how 
these proposed regulations could best advance this goal of continuous 
improvement.
    We also specifically seek input on the proposed changes to Sec.  
75.210, which outlines the Department's general selection criteria. We 
carefully examined usage of these selection criteria over the years to 
inform the proposed changes. We also looked at how the selection 
criteria align with the components of a logic model, to allow peer 
reviewers to assess the logic model more directly, including how the 
pieces of the proposed project align with the intended outcomes. We 
seek public input on whether the proposed changes to Sec.  75.210 would 
add clarity for applicants and peer reviewers and help ensure that the 
Department funds the highest-quality grant applications that are most 
likely to lead to successful projects.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation

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or auxiliary aid to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for the proposed regulations. To schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background

    In this notice of proposed rulemaking (NPRM), we propose various 
updates to EDGAR and related regulatory provisions. The proposed 
changes range from technical updates (such as removing references to 
the Trust Territory of the Pacific Islands, which no longer exists) to 
streamlining regulations (such as consolidating those concerning State 
plans under State-administered formula grant programs) to adding new 
options for grant competition requirements (such as providing the 
Department the option to require a logic model in any competitive grant 
program or to require a grantee to conduct an independent evaluation). 
Except for minor or technical revisions, such as updates to citations, 
cross-references, references to outdated programs, links, or general 
terminology, the proposed changes and reasons for them are explained in 
detail in the Significant Proposed Regulations section of this NPRM. 
The applicable authority for this regulatory package is section 410 of 
the General Education Provisions Act (GEPA) and section 414 of the 
Department of Education Organization Act (20 U.S.C. 1221e-3 and 3474, 
respectively), unless otherwise noted.

Significant Proposed Regulations

34 CFR Part 75--Direct Grant Programs

Sections 75.1 and 75.200 Programs to Which Part 75 Applies and How 
Applications for New Grants and Cooperative Agreements Are Selected for 
Funding; Standards for Use of Cooperative Agreements
    Current Regulation: Section 75.1 establishes that part 75 applies 
to direct grant programs of the Department. Section 75.200 further 
defines ``direct grant programs'' as either discretionary grant or 
formula grant programs.
    Proposed Regulation: Proposed Sec.  75.1 would combine Sec.  75.1, 
and the note that follows that section, with Sec.  75.200(a), (b)(1), 
and (c). Proposed Sec.  75.1(c)(3) would specify what regulations in 
part 75 apply to direct grant programs, which the proposed regulation 
clarifies are either a discretionary grant program or a formula grant 
program other than a State-administered formula grant program covered 
by part 76. We also propose in Sec.  75.1 to change ``authorizing 
statute'' to ``applicable statutes and regulations.'' We also propose 
deleting current Sec.  75.200(b)(3)(ii).
    Reasons: We propose these changes to consolidate all information 
relevant to which programs are covered by part 75 into one regulatory 
provision. The changes are not substantive. We propose to change 
``authorizing statute'' because we think the term is too narrow, as it 
does not include other applicable statutes, such as annual 
appropriations laws, that may override, modify, or supplement the 
``authorizing statute'' without amending them. Although not reiterated 
throughout this preamble, we propose to make this conforming change in 
each applicable instance throughout the proposed regulations. Likewise, 
we propose to make this change in relevant instances where the term 
``program statute'' is used. We propose deleting current Sec.  
75.200(b)(3)(ii) to remove redundancy with Sec.  75.200(b)(3)(i).
Section 75.4 Department Contracts
    Current Regulation: Section 75.4 describes what regulations apply 
to Federal contracts and in what circumstances part 75 applies to a 
contract of the Department.
    Proposed Regulation: We propose to remove and reserve Sec.  75.4.
    Reasons: Section 75.4 discusses contractual arrangements of the 
Department and when part 75 may apply to a Department contract. 
However, part 75 concerns the administration of the Department's direct 
grant programs, not contracts entered into by the Department. 
Additionally, Sec.  75.4 describes requirements found in Chapters 1 and 
34 of title 48 of the Code of Federal Regulations. These requirements 
apply to Department procurements, not Department grant programs or 
procurements undertaken by Department grantees. Therefore, to promote 
clarity and accessibility of the Department's regulations, we propose 
to remove Sec.  75.4 as unnecessary and redundant given the focus on 
direct grants in part 75. This provision concerns the regulations that 
govern Federal agency contracting, not grantee contracting. We do not 
propose to remove any provision relevant to a grantee's contracting, 
and removing Sec.  75.4 would not modify any provision related to 
contractual arrangements of the Department.
Section 75.60 Individuals Ineligible To Receive Assistance
    Current Regulation: Section 75.60 prohibits certain individuals 
from receiving a fellowship, scholarship, or loan from the Department 
if they are in default, as that term is used in 34 CFR part 668. The 
current section lists specific Department programs that are fellowship, 
scholarship, or loan programs.
    Proposed Regulation: The proposed revisions to Sec.  75.60 would 
delete the outdated list of programs and instead define Department 
programs that provide a fellowship, scholarship, or loan as being a 
program that offers a fellowship, scholarship, or loan ``administered 
by the Department.''
    Reasons: Current Sec.  75.60 lists numerous programs that no longer 
exist. Rather than update the list with specific references to programs 
that may become outdated later, we believe that reliance on a 
description of those programs ensures that, over the long term, the 
text does not become outdated. The change is not intended to be 
substantive.
Section 75.101 Information in the Application Notice That Helps an 
Applicant Apply
    Current Regulation: Section 75.101 describes what information the 
Secretary may include in an application notice, including information 
about the program and the application forms. Current Sec.  75.101(a)(1) 
includes a description of what information an application package 
contains.
    Proposed Regulation: We propose to revise Sec.  75.101(a)(1) to 
refer more generally to the application package.
    Reasons: The information described in current Sec.  75.101(a)(1)(i) 
and (ii) is now included in the application notice itself and not in 
the application package. Therefore, we believe that removing Sec.  
75.101(a)(1)(i) and (ii) would improve the clarity of the regulations.
Sections 75.102 and 75.104 Deadline Date for Applications and 
Applicants Must Meet Procedural Rules
    Current Regulation: Section 75.102(b) provides that, if an 
applicant wants a new grant, the applicant must submit an application 
in accordance with the requirements in the application notice.
    Proposed Regulation: We propose to move paragraph (b) of Sec.  
75.102 to Sec.  75.104, where it would be added as a new paragraph (c). 
We also propose to revise the heading of Sec.  75.104 to better reflect 
the topics covered by the regulation.
    Reasons: Moving this paragraph, which concerns the requirements in 
application notices, from Sec.  75.102 to Sec.  75.104, would improve 
the clarity of the regulations because Sec.  75.102 pertains to 
deadlines for submitting applications and Sec.  75.104 concerns

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applicants' compliance with additional application provisions.
Section 75.105 Annual Priorities
    Current Regulation: Section 75.105 describes the process by which 
the Secretary may use annual absolute and competitive preference 
priorities. Current Sec.  75.105(b)(2) describes the exceptions to 
publishing the annual priorities for public comment. Paragraph 
(b)(2)(i) describes the Department's use of invitational priorities and 
paragraph (b)(2)(iii) refers to the exceptions to the requirement for 
notice-and-comment rulemaking in section 553 of the Administrative 
Procedure Act (APA) (5 U.S.C. 553).
    Proposed Regulation: The proposed revisions would update the term 
``annual priorities'' in the section title to ``annual absolute, 
competitive preference, and invitational priorities,'' and add existing 
exceptions to the public comment requirement in a new paragraph 
(b)(2)(vi). These include the exception authorized by section 437(d)(1) 
of GEPA (20 U.S.C. 1232(d)(1)) for the first grant competition under a 
new or substantially revised program authority, as well as rulemaking 
exceptions under specific statutes.
    We also propose updates to paragraphs (b)(2)(i), (iii), and 
(b)(2)(iv) to properly describe the exceptions to the Department's 
normal practice of publishing proposed priorities for notice and 
comment.
    Reasons: The Department has statutory authority to use and has used 
the GEPA exception for many years, and adding this exception would 
clarify that the regulation supplements the statutory exemption in GEPA 
section 437(d)(1). The exception to notice and comment rulemaking for 
the first grant competition under a new or substantially revised 
program authority is established by GEPA section 437(d)(1); therefore, 
this change is not substantive. In addition, we propose to add 
references to section 681(d) of the Individuals with Disabilities 
Education Act (20 U.S.C. 1481(d)), and section 191 of the Education 
Sciences Reform Act (20 U.S.C. 9581), both of which provide 
longstanding exemptions to the generally applicable requirement for the 
Department to conduct notice and comment rulemaking with respect to its 
discretionary grants.
Section 75.109 Changes to Application; Number of Copies
    Current Regulation: Section 75.109(a) requires each applicant that 
submits a paper copy of an application to submit an original and two 
copies to the Department.
    Proposed Regulation: We propose to remove paragraph (a) of this 
section and revise the section heading accordingly.
    Reasons: We propose to remove this paragraph because it is no 
longer needed. The majority of applications are now submitted 
electronically.
Section 75.110 Information Regarding Performance Measurement
    Current Regulation: Section 75.110 sets out information regarding 
the Secretary's authority to establish performance measurement 
requirements in an application notice.
    Proposed Regulation: The proposed revisions would clearly 
differentiate between program performance measures and project-specific 
performance measures as well as establish requirements, to which 
grantees must agree, related to the quality of data and use of 
performance measures for continuous improvement.
    Reasons: As a general matter, the Department's programs have 
program-level performance measures against which all grantees must 
report. Further, some programs also encourage or require grantees to 
establish project-specific performance measures. Both sets of measures 
are important sources of information about program and grantee 
performance. The current regulations do not clearly differentiate 
between these two types of performance measures, and these proposed 
revisions would make that differentiation. Additionally, it is 
important to ensure that applicants propose to collect and report 
quality data and that grantees use their performance measures to inform 
continuous improvement of their projects. Therefore, we propose to 
require assurances for quality data as part of the applications, and 
that the data will be used to inform the continuous improvement plan 
for the project.
Section 75.112 Include a Proposed Project Period and a Timeline
    Current Regulation: Section 75.112 requires that applications 
include project periods and timelines of how the applicants plan to 
meet each project objective.
    Proposed Regulation: We propose to revise Sec.  75.112 to allow the 
Secretary to include a requirement for a logic model in a particular 
competition, in addition to requiring a project period and a timeline.
    Reasons: This change would support the development of high-quality 
applications, given that logic models describe the need for a project, 
its inputs and outputs, and the intended outcomes. Logic models are 
helpful tools for applicants to use when establishing timelines and 
resource needs. They also are helpful to the Department and reviewers 
in understanding the applicant's rationale for how its proposed project 
will achieve the project outcomes. Accordingly, adding the flexibility 
for programs to establish a requirement for logic models would support 
project planning as well as project implementation if the project is 
selected for funding.
Section 75.127 Eligible Parties May Apply as a Group
    Current Regulation: Section 75.127(b) lists some of the terms used 
to identify a group of eligible parties that may apply as a group for a 
grant. The list includes: (1) a combination of institutions of higher 
education; (2) a consortium; (3) joint applicants; and (4) cooperative 
arrangements.
    Proposed Regulation: We propose revising Sec.  75.127(b) to include 
the term ``partnerships.'' We also propose adding a paragraph (c) 
stating that, in the case of a group application submitted in 
accordance with Sec. Sec.  75.127-75.129, all parties in the group must 
be eligible applicants under the competition. This change would not 
alter the ability of applicants to form partnerships with entities that 
are not eligible to be recipients under a program.
    Reasons: We propose this change solely for clarity. In the case of 
an application submitted by a group of eligible applicants, a 
partnership is similar to a consortium, but in some programs the former 
term is used instead of the latter. Also, in the context of these 
regulations, the term ``eligible applicant'' is synonymous with 
``eligible party,'' although Sec.  75.127(a) and (b) refer to both as 
``eligible parties.''
Sections 75.190-192 Development of Curricula or Instructional Materials
    Current Regulation: Sections 75.190, 75.191, and 75.192 describe 
assurances and define reasonable consultation costs when grantees 
develop curricula or instructional materials.
    Proposed Regulation: We propose to remove Sec. Sec.  75.190-75.192.
    Reasons: These regulations duplicate other assurances and 
regulations, including the cost principles in 2 CFR part 200, subpart 
E, that allow consultation costs that are reasonable and necessary. In 
addition, we think the open licensing requirements in 2 CFR 3474.20 for 
Department competitive grants awarded in competitions announced after 
February 21, 2017, promote dissemination of materials developed with 
Department grant funds.

[[Page 1986]]

We propose removing them to avoid unnecessary duplication, which we 
believe may be confusing to grantees if we duplicate certain assurances 
and regulations but not others.
Section 75.201 How the Selection Criteria Will Be Used
    Current Regulation: Section 75.201(b) provides that, if points are 
assigned to the selection criteria, the Secretary informs applicants in 
the application package or a notice published in the Federal Register. 
Paragraph (c) provides that, if no points or weights are assigned to 
the selection criteria and selected factors, the Secretary evaluates 
each criterion equally and, within each criterion, each factor equally.
    Proposed Regulation: In Sec.  75.201(b), we propose adding the 
words ``or factors'' after the words ``selection criteria.'' In 
paragraph (c), we propose replacing the word ``and'' between the words 
``selection criteria'' and ``selected factors'' with the word ``or.''
    Reasons: The proposed revision to paragraph (b) would clarify that 
the Secretary may assign specific points, either to selection criteria 
or to the individual factors that make up an individual selection 
criterion, where appropriate to guide applicants and reviewers in more 
effectively preparing and reviewing applications. The revision to 
paragraph (c) would clarify the meaning of the provision and more 
accurately inform applicants and reviewers of how points are allocated 
among selection criteria and the individual factors making up each 
selection criterion when points are not assigned to the criteria or the 
selection factors.
Section 75.210 General Selection Criteria
    Current Regulation: Section 75.210 lists the selection criteria and 
factors that the Department uses in the peer review process to score 
applications for discretionary grants.
    Proposed Regulation: We propose changes to paragraphs (a) through 
(i) of Sec.  75.210. Throughout this section, we also propose to remove 
parenthetical cross-references to definitions in Sec.  77.1(c), to 
improve the consistency of how we refer to those definitions throughout 
our regulations. This global technical change would not affect the 
applicability of those definitions.
    Specifically, the proposed regulations would make the following 
updates:
    In paragraph (a), Need for project, as further described below, we 
propose clarifying in the criterion heading that it is need for ``the'' 
project. Regarding paragraph (a), Need for project, and paragraph (b), 
Significance, we propose a number of changes to provide greater clarity 
to applicants regarding the information they should provide in their 
applications to demonstrate the need or significance of the proposed 
project, including how the proposed project focuses on underserved 
populations, with the intent that the clarity for applicants will also 
provide better guidance for peer reviewers as they assess the extent to 
which applicants address these revised selection criteria factors. We 
also propose consolidation of factors where factors were similar in 
focus to streamline the menu of factors under the criterion.
    In paragraph (c), Quality of the project design, we propose 
revisions to the factors that more explicitly reference and connect to 
a logic model, emphasizing the importance of considering the components 
of a logic model in relation to the design of the proposed project. We 
are also proposing to add three new factors regarding how the proposed 
project is informed by similar projects implemented by the applicant, 
the extent to which an applicant will allocate a significant portion of 
requested funding to the evidence-based components, and the commitment 
of key decision-makers at implementation sites for the proposed 
project.
    In paragraph (d), Quality of project services, we propose 
clarifying in the criterion heading that it is the quality of ``the'' 
project services. We also propose to explicitly tie this factor to 
section 427 of GEPA (20 U.S.C. 1228(a)), and the related form Equity 
For Students, Teachers, And Other Program Beneficiaries (OMB Control 
No. 1894-0005), to connect an applicant's response to this form with 
the peer review of the application. Like Quality of the project design, 
proposed changes to Quality of project services reflect input from 
entities involved in the project, more direct connection to and 
engagement with the populations served by the proposed project, and the 
impacts of the services on those populations. We also propose a new 
factor related to early childhood and family outcomes, given the 
importance of serving young children and families effectively.
    In paragraph (e), Quality of project personnel, we propose 
clarifying in the criterion heading that it is quality of ``the'' 
project personnel. We also propose revisions that would address how the 
personnel of the proposed project are representative of the population 
to be served by the project, including a new factor that would speak to 
the project team reflecting the demographics of the community to be 
served. Revisions also would address the relevance of experience of the 
project personnel with similar projects. Lastly, we propose a new 
factor that seeks to ensure that the project team is familiar with the 
assets, needs, and other contextual considerations of the proposed 
implementation sites.
    In paragraph (f), Adequacy of resources, we propose revisions that 
would combine the adequacy of the resources and how those resources 
will support the proposed project. We also propose revisions that 
clarify commitments from partners, long-term sustainability and 
institutionalization of the project, and a new proposed factor on the 
reasonableness of the costs related to potential future adoption of the 
project.
    In paragraph (g), Quality of the management plan, we propose 
revisions that focus on the feasibility of the project, how data will 
be used to inform continuous improvement, and how the management plan 
includes the perspectives of underserved populations for the proposed 
project.
    In paragraph (h), Quality of the project evaluation, we propose 
revising the criterion heading to ``Quality of the project evaluation 
and evidence-building.'' In addition to the changes regarding the term 
``evidence-building,'' which we propose to define in Sec.  77.1(c), we 
propose revisions that would focus on the relevance of the evaluation, 
a focus of the evaluation on underserved populations, continuous 
improvement efforts and data to inform continuous improvement, revising 
the current factor on ``promising evidence'' so that it refers to the 
types of studies instead, differentiation of impacts for project 
components, and the experiences and independence of the evaluator. 
Lastly, we propose new factors focused on fidelity of implementation 
and dissemination of evidence-building learnings from the project.
    In paragraph (i), Strategy to scale, we propose revisions that 
would clarify how the scaling work is informed by, and builds on, the 
project, seeks to serve underserved populations, and addresses previous 
barriers to impact. The revisions would allow for scaling at either the 
regional level or the national level and could include dissemination as 
well as adaptation and replication. We also propose new factors that 
look at how scaling efforts will target new populations or settings, 
the efficiencies in the project that will be incorporated into the 
scaling efforts, and the revenue stream to support scaling.
    Reasons: The proposed revisions would provide clarity, ensure 
technical

[[Page 1987]]

and grammatical consistency, and make certain substantive changes, 
further described below. The menu of selection criteria and factors has 
expanded over the years through the various updates to EDGAR, and we 
closely reviewed it to determine what changes are needed. We also 
looked at how the existing factors were used in the various Department 
discretionary grant competitions to inform which factors are used 
frequently and which factors have rarely or never been used. For those 
rarely or never used, we examined whether there were other similar 
factors that might be used in their place, or if the language of the 
factor might be confusing. In some instances, we propose consolidating 
factors for these reasons, and, in some instances, we propose deleting 
the factors because they have rarely or never been used. We also sought 
to examine how the selection criteria can advance the Department's 
objectives of increasing diversity of applicants, ensuring equity in 
project services, and advancing usage of evidence. Clarity in the 
selection factors aids grant applicants' understanding and the 
Department's peer review and selection of grantees. The proposed 
changes to the selection criteria and factors under each criterion are 
based on lessons we have learned from using the existing selection 
criteria, ways to streamline the factors, and improvements to clarity. 
The proposed revisions seek to broaden the applicability of the 
factors, focus on data to inform project design and continuous 
improvement, demonstrate how the project and its personnel reflect the 
population to be served, and indicate how lessons learned from the 
project are incorporated into the project and plans for continued 
implementation and improvement after the grant period.
    In paragraph (a), Need for project, we propose to revise the 
factors to further distinguish need, including allowing the Department 
to request comparison data that help an applicant demonstrate their 
need for the project and having applicants identify gaps that the 
proposed project will fill. Furthermore, we propose to focus these 
factors to further target grant funds to individuals and populations 
that are underserved and lack access to services.
    Like the factors under Need for project, the proposed revisions 
under paragraph (b), Significance, are meant to allow applicants to 
quantify the significance of the project, including significance beyond 
the individual grant project and relevance to broader educational 
challenges. The proposed changes are meant to provide information on 
contributions to the field, capacity for the project to be adopted by 
others in the field, and a new proposed factor (xvii) that would focus 
on innovative approaches to existing evidence-based project components 
that support efforts under some Department programs to invest and then 
scale innovative projects. Additional revised factors would require 
using knowledge from project implementation to identify effective 
strategies to address educational challenges, as we think it is 
important for applicants to plan for not just implementing a project 
but developing ways to share knowledge from the implementation beyond 
the grant project. Recognizing that the Department is not the only 
agency or organization that funds and supports educational efforts, we 
think it is important for applicants to prepare for sharing their 
contributions to the field, and that the field is broader than just the 
Department. In addition, proposed factor (iv) would more explicitly 
reference rehabilitative services, which would be important for grant 
programs under the Rehabilitation Services Administration of the 
Department's Office of Special Education and Rehabilitative Services.
    In paragraph (c), Quality of the project design, we intend to 
emphasize the importance of ensuring that the project design reflects 
engagement of the community to be served and other relevant entities, 
includes a focus on continuous improvement, and relies on relevant 
high-quality research that informs the proposed project. These 
revisions are intended to strengthen a proposed project design. We also 
propose to add new factors: how the proposed project is informed by 
similar projects implemented by the applicant, the extent to which an 
applicant will allocate a significant portion of requested funding to 
the evidence-based project components, the commitment of key decision 
makers at implementation sites for the proposed project, and the 
engagement of community members and partners in the design of the 
proposed project. The intent of these additions is to focus on project 
designs that consider previous implementations, the evidence base, and 
the needs of the community by engaging them. Additional revisions 
propose the development and use of a logic model because we think that 
logic models establish project designs that connect the intended 
outcomes with the inputs and activities to support those outcomes. 
Current factors reference only a conceptual framework or the 
``demonstrates a rationale'' or ``promising evidence'' evidence levels 
but do not specifically discuss a logic model, which is defined in part 
77. Lastly, we propose a factor about commitments at implementation 
sites to address issues we have seen in grant projects for which 
implementation sites were named in an application, but their support 
was unclear and affected implementation during the project period.
    In paragraph (d), Quality of project services, we propose to 
explicitly tie this factor to section 427 of GEPA (20 U.S.C. 1228(a)), 
and the related form Equity For Students, Teachers, And Other Program 
Beneficiaries (OMB Control No. 1894-0005), for equitable access to, and 
participation in, the proposed project. The intent of this alignment is 
to connect an applicant's responses related to equity considerations on 
that form to the project services proposed under the project and aligns 
with the form's instructions, which include a broad list of potential 
barriers that may impede equitable access and participation. We propose 
these revisions under Quality of the project service and not under 
Quality of project personnel, as we think the responses on the form are 
more relevant to the project services and the activities being carried 
out under the grant. Other proposed revisions to factors under Quality 
of project services would align with proposed changes to other 
selection criteria, focusing on community engagement in project 
services, ensuring that project services are focused on underserved 
populations, and the relevance of the services and the data being 
collected and used to inform the project services. We propose a new 
factor focused on the outcomes of early childhood and families to align 
with Department programs that focus on these populations, because these 
populations are currently not included in this criterion.
    In paragraph (e), Quality of project personnel, we propose 
revisions to parallel those under Quality of project services that 
would align the listed examples of groups that have experienced 
barriers between the two criteria. We also propose factors that align 
the qualifications of the personnel with similar projects, factors that 
focus project personnel on being representative of the target 
population for project services, and a factor to have personnel who are 
familiar with the needs of the implementation sites for the proposed 
project. The proposed revisions and new factors are intended to help 
ensure that personnel are positioned to meet the needs of the 
underserved populations to be served and more closely reflect those

[[Page 1988]]

populations, including a focus on the training and experiences of the 
personnel that align with the work to be carried out under the proposed 
project.
    Regarding paragraph (f) Adequacy of resources, the proposed changes 
are intended to clarify the connection between the budget for the 
proposed project and how those costs are reasonable and significant, 
including a new factor that looks at the reasonableness of others being 
able to adopt and implement the project, because we are interested in 
the anticipated costs of broader implementation. We also propose 
revisions to the factor that requires applicants to address matching 
funds and partner commitments, which is significant given the number of 
program statutes that have matching requirements.
    In paragraph (g), Quality of the management plan, we propose 
revisions to the existing factors to focus on the applicant's plan to 
meet goals and objectives, timelines, and budgets. Separately, we 
propose a revised factor to involve the use of community and partner 
input in the management plan, to inform continuous improvement efforts 
related to project implementation. Lastly, the proposed revisions to 
criterion (v) are meant to ensure meaningful engagement from the 
underserved populations to be served by the project to ensure the 
management plan reflects their needs.
    In paragraph (h), Quality of the project evaluation, the proposed 
changes are intended to recognize that rigorous evaluation is not 
feasible for all projects; however, there are efforts relating to 
project goals, objectives, and performance measurement that can be used 
to improve the project, reach intended outcomes, and focus on evidence-
building, which would be supported by the proposed definition in Sec.  
77.1(c). We also propose revising the current factor on ``promising 
evidence'' so that it refers to the types of studies instead, which we 
think provides greater clarity on what evaluation designs are necessary 
to meet the requirements of the factor.
    In paragraph (i), Strategy to scale, the proposed changes focus on 
underserved populations. We propose two factors that would establish 
the level of the efforts to scale, having a separate factor for scaling 
to the regional level because not all projects can scale to the 
national level. A proposed new factor focuses scaling on new 
populations or settings, which is meant to get at the broader potential 
scaling of the proposed project. Multiple factors are meant to focus on 
how an applicant will address issues to scaling, including identifying 
and proposing strategies to address barriers to scaling, adaptions and 
replications to allow for scaling, and the addition of two new factors 
focused on the financial aspects of scaling, including efficiencies in 
scaling and revenue sources. All these revisions are meant to encourage 
applicants to more thoughtfully consider all of the aspects related to 
successful scaling of a project, to ensure ongoing support and growth 
for a project after Federal funding ends.
Section 75.216 Applications Not Evaluated for Funding
    Current Regulation: Section 75.216 provides that the Secretary does 
not evaluate an application if: (a) The applicant is not eligible; (b) 
the applicant does not comply with all procedural rules that govern the 
submission of the application; (c) the application does not contain the 
information required under the program; or (d) the proposed project 
cannot be funded under the applicable statute and regulation or 
implementing regulations for the program.
    Proposed Regulation: We propose to revise Sec.  75.216 by removing 
paragraphs (a) and (d) and revising the section heading to read: 
Applications that the Secretary may choose not to evaluate for funding.
    Reasons: We propose to revise this provision because the Department 
is bound by law to follow applicable statutes and regulations, and this 
change to Sec.  75.216 would not change the rules that govern the 
eligible entities and types of projects that can be funded under a 
particular grant competition. To meet the deadlines for timely review 
of applications, the Department will often forward applications for 
evaluation to peer reviewers before making final determinations on 
compliance with all the requirements in Sec.  75.216, which are often 
complex and time consuming. The proposed changes to Sec.  75.216 align 
with current Department practice, allow the peer review process to 
proceed in a timely fashion, and allow final eligibility determinations 
to be made prior to an award being made to an applicant. For this 
reason, paragraphs (a) and (d) are unnecessary. In addition, the 
revisions to the title would clarify the Department's determinations 
not to evaluate an application for the reasons set forth in this 
regulation and codifies Department practice.
Section 75.217 How the Secretary Selects Applications for New Grants
    Current Regulation: Paragraph (c) of Sec.  75.217 provides that the 
Secretary prepares a rank order of the applications based solely on the 
evaluation of their quality according to the selection criteria.
    Proposed Regulation: We propose to revise paragraph (c) of Sec.  
75.217 to clarify that we may prepare multiple rank orders where we 
have a menu of absolute priorities that applicants must meet, as well 
as clarify that the rank order will also reflect any competitive 
preference points.
    Reasons: The proposed change would provide a full description of 
the information relied on by the Secretary in preparing a rank order of 
applications under Sec.  75.217 and codifies our current practice in 
Sec.  75.217.
Section 75.219 Exceptions to the Procedures Under Sec.  75.217
    Current Regulation: Section 75.219(b) excepts an application from 
the procedures described under Sec.  75.217 if the application was 
rated highly enough to be funded but was not funded because it was 
mishandled.
    Proposed Regulation: We propose to revise Sec.  75.219(b)(2) and 
(3) to provide for situations in which an application was not selected 
for funding because the application was mishandled or improperly 
processed by the Department and an application has been rated highly 
enough to qualify for selection under Sec.  75.217.
    Reasons: We propose this change to improve the clarity of this 
provision. There have been instances in which the mishandling or 
improper processing of applications by the Department resulted in 
either an applicant not being rated or having its rating not properly 
recorded due to a clerical or other error. As a result, we propose 
changes to clarify that Sec.  75.219(b) applies if, in the absence of 
the mishandling or improper processing, an application either had been 
rated highly enough to be funded or would have been rated highly enough 
to be funded had it been reviewed. When the Department discovers an 
application that was not reviewed due to mishandling or improper 
processing, it has the application reviewed and, if the score is high 
enough, makes an award using funds that are available when the review 
is conducted. This proposed change clarifies the scope of this 
provision and the procedures the Department follows in practice.
Section 75.220 Procedures the Department Uses Under Sec.  75.219(a)
    Current Regulation: Section 75.220(b)(2) references an employee of 
the Office of the Chief Financial Officer (OCFO) with responsibility 
for grants policy to serve on a board to review an application under 
the special

[[Page 1989]]

circumstances of Sec.  75.219(a) (The objectives of the project cannot 
be achieved unless the Secretary makes the grant before the date grants 
can be made under the procedures in Sec.  75.217.)
    Proposed Regulation: We propose revising paragraph (b)(2) to refer 
instead to the Office of Finance and Operations (OFO).
    Reasons: In the reorganization at the Department that went into 
effect in January 2019, the OCFO functions were incorporated into the 
new OFO, and this section would be updated to reference the correct 
office.
Section 75.221 Procedures the Department Uses Under Sec.  75.219(b)
    Current Regulation: Section 75.221 provides that, if the special 
circumstances of Sec.  75.219(b) appear to exist for an application, 
the Secretary may select the application for funding if: the Secretary 
has documentary evidence that the special circumstances of Sec.  
75.219(b) exist; and (b) the Secretary has a statement that explains 
the circumstances of the mishandling.
    Proposed Regulation: We propose to revise Sec.  75.221 to improve 
its clarity and eliminate the requirement that the Secretary have a 
statement that explains the circumstances.
    Reasons: We propose to revise the provision to improve its clarity 
and eliminate unnecessary language. The proposed changes would remove 
the requirement for an explanation of the mishandling separate from 
documentation of the circumstances of the mishandling. The Department 
does not believe that further explanation of the reasons the 
application was mishandled is necessary if the Secretary has 
documentation of the circumstances, already required under Sec.  
75.219(b).
Section 75.522 Procedures the Department Uses Under Sec.  75.219(c)
    Current Regulation: Section 75.222 describes the procedures for 
considering an unsolicited application, including the note accompanying 
Sec.  75.222 references the Application Control Center, which no longer 
exists.
    Proposed Regulation: Proposed Sec.  75.222 would update the mailing 
procedures for unsolicited applications to align with the mailing 
procedures discussed in the Common Instructions for Applicants to 
Department of Education Discretionary Grant Programs, published in the 
Federal Register on December 7, 2022 (87 FR 75045).
Section 75.225 What procedures does the secretary use if the secretary 
decides to give special consideration to novice applications?
    Current Regulation: Section 75.225 describes the circumstances in 
which the Secretary may give an absolute or competitive preference to 
an applicant that meets the definition of ``novice applicant.'' To be a 
``novice applicant'' under current Sec.  75.225, an applicant must 
have, in part: (1) never received a grant or subgrant under the program 
from which it seeks funds; (2) never been a member of a group 
application; and (3) not had an active discretionary grant from the 
Federal government in the last five years.
    Proposed Regulation: Proposed Sec.  75.225 would replace the term 
``novice applicant'' with the term ``new potential grantee'' and 
provide a definition of that new term. The proposed definition includes 
five options from which the Department could choose to apply one or 
more of the conditions to a specific competition. The options of 
conditions for defining a new potential grantee would include: (1) an 
applicant that has never received a grant or cooperative agreement, 
including membership in a group application submitted in accordance 
with Sec. Sec.  75.127-75.129 that received a grant, under the program 
from which it seeks funds; (2) an applicant that does not, as of the 
deadline date for submission of applications, have an active grant or 
cooperative agreement, including membership in a group application 
submitted in accordance with Sec. Sec.  75.127-75.129 that received a 
grant, under the program from which it seeks funds; (3) an applicant 
that has not had an active discretionary grant or cooperative 
agreement, including membership in a group application submitted in 
accordance with Sec. Sec.  75.127-75.129 that received a grant, under 
the program from which it seeks funds in a specified number of years 
before the deadline date for submission of applications under the 
program; (4) an applicant that has not had an active discretionary 
grant or cooperative agreement from the Department, including 
membership in a group application submitted in accordance with 
Sec. Sec.  75.127-75.129 that received a grant, in a specified number 
of years before the deadline date for submission of applications under 
the program; or (5) an applicant that has not had an active contract 
from the Department in a specified number of years before the deadline 
date for submission of applications under the program from which it 
seeks funds. Based on program needs, a discretionary grant program 
could choose to define ``new potential grantee'' using one or any 
combination of the five options described in proposed Sec.  75.225(a). 
If used, the Secretary would specify the number of years for 
definitions (3), (4), and (5) in the NIA by selecting from among the 
identified options, as described in proposed Sec.  75.225(b). In 
addition, the proposed regulations would create a corresponding inverse 
priority for applicants that are not ``new potential grantees'' to be 
used when the Secretary creates an absolute priority for ``new 
potential grantees'' and plans to create multiple funding slates for 
applicants that are ``new potential grantees'' and those that are not. 
The intent is for this inverse option to be used when the ``new 
potential grantee'' priority is used as an absolute priority, and there 
is a need to be able to create another funding slate for those 
applicants that do not meet the ``new potential grantee'' priority.
    Reasons: Since the enactment of this regulation in 2002, we have 
discovered that the definition of ``novice applicant'' is often complex 
and overly restrictive in practice. For instance, many of the 
Department's grant programs have very few, if any, eligible entities 
(such as institutions of higher education) that have not had other 
discretionary grants from the Federal government in the last five 
years. Despite Sec.  75.225 being applicable to all the Department's 
discretionary grant programs, many programs have needed to create 
program-specific definitions of ``novice applicant'' that are tailored 
to their individual contexts because the vast majority of prospective 
applicants for our programs would not meet the current definition of 
``novice applicant'' in Sec.  75.225. These proposed revisions would 
provide the Department's programs with increased options to define 
``new potential grantee.'' We think that these proposed revisions would 
allow this priority to be usable in more discretionary grant programs 
and more effectively promote the Department's interest in awarding 
grants to a more diverse and inclusive variety of applicants. 
Furthermore, these revisions align with the successful implementation 
of the ``Applications from New Potential Grantees'' and ``Applications 
from Grantees that are Not New Potential Grantees'' priorities from the 
Administrative Priorities for Discretionary Grant Programs published in 
the Federal Register on March 9, 2020 (85 FR 13640) (Administrative 
Priorities), which have worked well in allowing the Department to 
prioritize

[[Page 1990]]

new potential grantees. We propose to add those priorities to the 
regulations for clarity and consistency.
    In the Administrative Priorities and proposed here, option (1) 
would apply in programs where the Department would intend to focus on 
applicants that have never received a grant under the program; option 
(2) would apply in grant competitions for which the Department would 
intend to prioritize ``new potential grantees'' without an active grant 
under the program; option (3) would apply in the event that a program 
may have multiple cohorts of grantees, and the Department would intend 
to define ``new potential grantees'' as those that have not had a grant 
under the program for the specified number of years; option (4) would 
apply when the Department would intend to be inclusive of other 
Department grant programs when determining ``new potential grantees;'' 
and option (5) would apply in cases when there are grant programs where 
an applicant may not have a Department grant but may have Department 
contracts and is familiar with the work of the Department already. The 
intent of these options is to take into consideration program specific 
contexts, such as the different characteristics of programs, including 
different types of applicants and different frequencies in which grant 
competitions are run.
Section 75.226 What procedures does the Secretary use if the Secretary 
decides to give special consideration to applications supported by 
strong, moderate, or promising evidence?
    Current Regulation: Section 75.226 describes the Secretary's 
authority to give special consideration to applications supported by 
strong, moderate, or promising evidence.
    Proposed Regulation: The proposed revision would also permit the 
Secretary to give special consideration to an application that 
``demonstrates a rationale'' as defined in Sec.  77.1(c) without 
disallowing evidence that may meet more than one of the four levels 
described in that section. We also propose removing cross-references to 
the definitions of ``strong evidence,'' ``moderate evidence,'' and 
``promising evidence'' in Sec.  77.1(c), because we do not include such 
cross-references elsewhere in part 75, and they are not necessary.
    Reasons: While we continue to be very interested in grant projects 
that are supported by rigorous evidence, we recognize that the research 
base supporting many of our discretionary grant programs is still 
emerging. In addition, we think it is important to provide incentives 
for innovative approaches to systemic problems in education wherever 
possible. Adding the ``demonstrates a rationale'' level of evidence to 
Sec.  75.226 would allow the Department to give priority to 
applications that meet this standard, thereby requiring or encouraging 
applicants to incorporate research into their project planning, where 
possible, while still supporting the identification of innovative 
solutions. This addition is also consistent with the ``Applications 
that Demonstrate a Rationale'' priority in the Administrative 
Priorities, which has been beneficial to achieving these objectives in 
discretionary grant competitions.
Section 75.227 [Reserved]
    Current Regulation: Section 75.227 is currently reserved.
    Proposed Regulation: We propose to add a new Sec.  75.227 that 
would allow the Secretary to establish a separate competition for, or 
provide competitive preference to, applicants that propose to serve 
rural locations. Specifically, the Secretary could decide to give such 
special consideration to applicants that can demonstrate one or more of 
the following: (1) the area the applicant proposes to serve is a rural 
LEA, (2) the area the applicant proposes to serve is a rural community, 
(3) the area the applicant proposes to serve is a rural school, or (4) 
the applicant is a rural institution of higher education. We propose to 
utilize rural programs authorized under ESEA as well as the locale 
codes from the National Center for Education Statistics School District 
search tool, given that there are different Federal definitions for 
``rural.'' The proposed regulation also specifies that, if using an 
absolute priority related to rural applicants, the Secretary may also 
include an absolute priority for applicants that do not meet that 
priority in order to offer separate competitions, resulting in separate 
rank orders, for each competition.
    Reasons: Rural communities face unique challenges due to their 
being remote, and they also have unique opportunities. These factors 
are reflected in many program statutes' priorities accorded to 
applicants that serve rural communities in many Department programs, 
but we believe that it is necessary that every discretionary grant 
program have the option to give priority to applicants that will serve 
rural communities. This section would enable the Department to 
specifically encourage applications that will provide services in rural 
communities. This addition would also be consistent with ``Rural 
Applicants'' and ``Non-Rural Applicants'' priorities in the 
Administrative Priorities, which have worked well to achieve these 
goals in discretionary grant competitions.
Section 75.234 The Conditions of the Grant
    Current Regulation: Section 75.234 refers to ``special conditions'' 
that the Secretary determines prior to making a grant.
    Proposed Regulation: Proposed Sec.  75.234 replaces the term 
``special'' with the term ``specific.''
    Reasons: ``Specific'' is the term the Department now uses, 
consistent with 2 CFR 200.208 to refer to conditions imposed on a grant 
award. The change is not substantive.
Section 75.250 Maximum Funding Period
    Current Regulation: Section 75.250(a) provides that the Secretary 
may approve a project period of up to 60 months to perform the 
substantive work of the grant.
    Proposed Regulation: We propose to revise the heading for Sec.  
75.250 to change ``funding'' to ``project'' and propose to revise Sec.  
75.250(a) to clarify that the Secretary may approve project periods of 
up to 60 months unless statutory authority provides otherwise. We also 
propose removing Sec.  75.250(b) because we propose a new Sec.  75.254 
to separately address data collection periods.
    Reasons: We propose the change to the heading to align with the use 
of the term ``project period'' in Sec.  75.250(a). We propose the 
change to Sec.  75.250(a) to clarify that EDGAR does not supersede the 
applicable statutes and regulations that apply to a given program. We 
also propose to delete Sec.  75.250(b) as we propose a new Sec.  75.254 
to allow for data collection periods separate from the extension of a 
project period.
Section 75.253 Continuation of a Multiyear Project After the First 
Budget Period
    Current Regulation: Section 75.253 describes the process and 
requirements for making continuation awards.
    Proposed Regulation: The proposed revisions would clarify those 
procedures and requirements, including addition of verification of the 
quality data submitted, and explain that, if the Department decides not 
to make a continuation award, a grantee will be given an opportunity to 
object under 2 CFR 200.341 through a request for reconsideration. They 
also would explain existing Department practices that a determination 
by the Secretary to not make a continuation award, or to reduce the 
amount of a continuation

[[Page 1991]]

award, to a grantee does not constitute a withholding under section 455 
of GEPA (20 U.S.C. 1234d).
    Reasons: These proposed changes would reflect existing Department 
practices and provide a clearer description of the relevant 
requirements and procedural rights of grantees in the continuation 
awards process. In addition, these revisions would explain that a 
determination by the Department not to make a continuation award, or to 
reduce the amount of a continuation award, to a grantee does not 
constitute a withholding under section 455 of GEPA. That provision of 
GEPA deals with circumstances in which funds have already been 
obligated, such as a discretionary grantee that has already received a 
continuation award or, as is the case with a formula grant program, a 
grantee that is entitled to receive funds or has already received funds 
if it meets certain eligibility requirements. Neither of these 
conditions is present if the Secretary decides to not make, or to 
reduce, a continuation award.
Section 75.254 [Reserved]
    Current Regulation: Section 75.254 is currently reserved.
    Proposed Regulation: We propose to add a new Sec.  75.254 that 
would allow the Secretary to award a data collection period of up to 72 
months after the end of the project period and provide funds for the 
data collection period. The proposed regulation would also set forth 
how the Secretary would inform applicants of this data collection 
period. It would further state that the Secretary may require 
applicants to include a budget and description for the data collection 
period in their applications if the data collection period is announced 
through the NIA.
    Reasons: Currently, Sec.  75.250 allows for a data collection 
period for a grant for a period of up to 72 months after the end of the 
project period. However, Sec.  75.250 is not an option for those 
Department programs for which there is a maximum statutory performance 
period. Flexibility in how and for which programs the Department can 
allow data collection awards would give us opportunities to learn more 
about the impacts of our grants. Statutory limitations on project 
periods inhibit this longer-term data collection that could inform 
impacts beyond grant project periods. Furthermore, the Department 
operationalizes the data collection period under Sec.  75.250 as a 
separate grant award and establishing a separate section in EDGAR gives 
the Department greater flexibility in how to use data collection 
awards. This section would also align with a similar priority from the 
Administrative Priorities, building on lessons learned from that 
priority, including notifying applicants in the NIA to propose a 
timeline that includes a data collection period.
Section 75.261 Extension of a Project Period
    Current Regulation: Section 75.261 describes when grant project 
periods may be extended and under what conditions a grantee may receive 
a project period extension.
    Proposed Regulation: Proposed Sec.  75.261 would clarify that there 
are two types of project period extensions: (1) a one-time extension of 
up to 12 months without prior approval if the requirements in 2 CFR 
200.308(e)(2) are met and there are no applicable statutes, 
regulations, or grant conditions prohibiting such an extension; and (2) 
an additional extension beyond the 12 months with prior approval of the 
Secretary, if certain other conditions are met. The proposed revision 
also would remove references to specific technical assistance centers 
in current paragraph (b) that no longer exist, correct citations, and 
align language to be consistent with the Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements (the Uniform 
Guidance) for Federal Awards in 2 CFR part 200, as adopted and amended 
as regulations of the Department in 2 CFR part 3474.
    Reasons: The regulation, as currently written, includes numerous 
revisions made over the years and is now in need of streamlining, and 
contains outdated references and citation errors. These proposed 
changes would promote greater clarity and accessibility for the public 
regarding project period extensions. The proposed changes are not 
substantive.
Section 75.263 Pre-Award Costs; Waiver of Approval
    Current Regulation: Section 75.263 describes when pre-award costs 
may be incurred.
    Proposed Regulation: Proposed Sec.  75.263 would remove the clause 
``notwithstanding any requirement in 2 CFR part 200.''
    Reasons: The language we propose to remove is not necessary to 
establish that the requirements of 2 CFR part 200 apply; removing it 
would add clarity to the regulation. The proposed change is not 
substantive.
Section 75.519 Dual Compensation of Staff
    Current Regulation: Section 75.519 prohibits paying for project 
staff who are compensated from another source of funds.
    Proposed Regulation: Proposed Sec.  75.519 would add a reference to 
the cost principles described in 2 CFR part 200, subpart E--Cost 
Principles.
    Reasons: The reference we propose to add provides the source for 
the prohibition discussed in Sec.  75.519. The change is not 
substantive.
Sections 75.560-75.564 Indirect Cost Rates
    Current Regulations: Sections 75.560-75.564 describe the 
application of indirect costs under discretionary grant programs, 
including who approves indirect costs rates and how they are applied.
    Proposed Regulations: The proposed revisions would align these 
sections of EDGAR with the Uniform Guidance in 2 CFR part 200, include 
cost allocation plans along with indirect costs rates, and provide 
clarity on the application of indirect cost rates.
    Reasons: The Uniform Guidance sets out requirements that apply to 
Federal grants and was adopted by the Department in 2 CFR part 3474. 
The Uniform Guidance, in conjunction with EDGAR, governs Department 
grants and therefore these provisions should be closely aligned with 
one another. These sections of EDGAR do not reflect recent updates to 
the Uniform Guidance, including the addition of the de minimis rate, 
referencing cost allocation plans as performing a role equivalent to 
indirect costs rate, and clarifications on restricted rates, and this 
alignment is necessary to ensure that there is no confusion. Moreover, 
the proposed changes are intended to add clarity regarding how indirect 
cost rates are applied, as well as the indirect cost rate options an 
entity has.
Section 75.590 Evaluation by the Grantee
    Current Regulation: Section 75.590 describes what grantees must 
demonstrate or provide to the Department regarding performance 
reporting and the evaluation of their projects.
    Proposed Regulation: The proposed revision would add a new 
paragraph (c) that would permit the Department to include a requirement 
for an independent evaluation in any grant competition, for the results 
of that evaluation to be made public, including the option to make the 
data available to third-party researchers, and for the results of that 
evaluation or a grantee final report to be submitted to ERIC, which is 
administered by IES.

[[Page 1992]]

    Reasons: We want to have more tools available to build, use, and 
disseminate rigorous evidence more effectively. Requiring grantees to 
conduct independent evaluations, where appropriate, would help increase 
the credibility of their project evaluations because the entity 
conducting the evaluation would have no vested interest in the outcome 
of the evaluation. An independent evaluation to assess the 
implementation or impact of a project or project component has the 
potential to build the evidence base through the work of competitive 
program grantees, and the sharing of data with third-party researchers 
allows for additional data analysis. Submitting evaluations and the 
final performance reports under grants to ERIC can help identify 
emerging evidence and promote further research.
Section 75.591 Federal Evaluation--Cooperation by a Grantee
    Current Regulation: Section 75.591 requires grantees to cooperate 
in the Department's efforts to evaluate the program supporting their 
project.
    Proposed Regulation: We propose to clarify the types of activities 
that grantees could be expected to undertake as part of their 
participation in a Federal program evaluation.
    Reasons: Although the current regulation makes it clear that 
grantees must cooperate with the Secretary's evaluation of the program, 
it does not provide potential applicants information about what that 
cooperation might entail. The proposed regulation would provide 
increased transparency about the types of activities in which a grantee 
may be required to participate. For example, a grantee may be required 
to participate in a randomized controlled trial conducted by the 
Department, and we think that it is important to provide clarity, where 
possible, on grantee expectations under the regulation.
Section 75.600-75.617 Construction
    Current Regulations: Sections 75.600-75.617 cover various 
regulations related to construction projects and the acquisition of 
real property.
    Propose Regulation: We propose to amend certain regulations related 
to construction projects and real property acquisition in parts 75, 76, 
and 77. The proposed changes to parts 76 and 77 are addressed in more 
detail in the applicable sections of this preamble.
    Specifically, the proposed changes include the following:
     A reorganization of Sec. Sec.  75.600-75.614 for a more 
logical progression of the statutory and regulatory requirements at 
each stage of the construction project. The proposed regulations are 
organized to progress through all the stages of a construction project, 
through Department approval (Sec.  75.601), planning the project (Sec.  
75.602), beginning the project (Sec.  75.603), during the project 
(Sec.  75.604), and after the project (Sec.  75.605).
     Clarifying that the Secretary considers a grantee's 
compliance with specific statutes and regulations related to 
construction prior to approval of the construction project (proposed 
Sec.  75.602(c)).
     Adding specific provisions regarding real property 
acquisition that, in part, incorporate requirements from existing 
governmentwide assurances, including nondiscrimination assurances 
(proposed Sec.  75.606). These provisions mirror the construction 
provisions in proposed Sec.  75.601 to clarify that real property 
projects must also receive Department approval.
     Incorporating, and updating, as appropriate, applicable 
cross references to the Uniform Guidance and other applicable law in 
the various stages of the construction project in various sections of 
the regulations.
     Moving and consolidating the requirements currently in 
Sec. Sec.  75.607-75.608 into proposed Sec.  75.602. We do not propose 
any substantive changes to the current requirements in Sec.  75.607 or 
Sec.  75.608.
     Decreasing the period for which the grantee must retain 
title to the site from 50 years to 25 years in proposed Sec.  75.610.
     Clarifying the requirements of the National Environmental 
Policy Act of 1969 (NEPA) (proposed Sec.  75.611). This section would 
not create a requirement, but rather provide additional guidance that 
the NEPA requirements apply to ``major Federal projects'' as defined by 
NEPA.
     Moving the requirements of Sec.  75.611 (Avoidance of 
flood hazards) and Sec.  75.617 (Compliance with the Coastal Barrier 
Resources Act) to proposed Sec.  75.612 and Sec.  75.613, respectively. 
We do not propose any substantive changes to the current requirements 
in Sec.  75.611 or Sec.  75.617.
     Clarifying the process and roles of the Secretary and 
State reviewing a construction project involving historic preservation 
(proposed Sec. Sec.  75.614 and 76.600). We do not propose any 
substantive changes to the current requirements in Sec.  75.602.
     Adding the applicability of the new Build America, Buy 
America Act to construction projects (proposed Sec.  75.615). This 
section explains that a grantee must comply with the requirements of 
the Build America, Buy America Act, Public Law 117-58, Sec.  70901-
70927 and implementing regulations in 2 CFR part 184.
     Updating the requirements of Sec.  75.616 (Energy 
conservation) to require compliance with the most current ASHRAE 
standards. The current regulation requires compliance with standards 
from 1975, 1977, and 1980, respectively.
     Moving the requirements of Sec.  75.610 (Access by the 
handicapped) to proposed Sec.  75.617 and updating the title to 
``Access for individuals with disabilities.'' We do not propose any 
substantive changes to the current requirements in Sec.  75.610.
     Moving and consolidating the requirements currently in 
Sec.  75.609 (Comply with safety and health standards) into proposed 
Sec.  75.618. We do not propose any substantive changes to the current 
requirements in Sec.  75.609.
    Reasons: The purpose of these proposed changes is to update the 
current construction regulations in response to statutory changes and 
related issues that have arisen over the last thirty years, as many of 
the regulations for this section have not been updated since 1992; to 
better align the regulations to the Uniform Guidance that was first 
promulgated in 2014 and updated in 2020; and to improve clarity and 
transparency regarding Federal program operations. The Department 
proposes to decrease the period in proposed Sec.  75.610 because we 
found that grantees with site leases had difficulty establishing that 
they had an option to extend their lease for 50 years. Rather, we 
propose to reduce to 25 years or the useful life of the construction, 
which we think more closely aligns with the Federal investment. We also 
propose to update these regulations to include the requirements 
grantees must follow during construction projects under the Build 
America, Buy America Act, Pub. L. 117-58, Sec.  70901-70927. The Build 
America, Buy America Act was enacted as part of the overall 
Infrastructure Investment and Jobs Act in November 2021. The purpose of 
the Build America, Buy America Act is to create demand for domestically 
produced goods, helping to sustain and grow domestic manufacturing.
Section 75.618 Charges for Use of Equipment or Supplies
    Current Regulation: Section 75.618 states that a grantee may not 
charge for ordinary use of equipment or supplies.
    Proposed Regulation: We propose to repurpose Sec.  75.618 for use 
under the Construction subheading and move the current Sec.  75.618 to 
currently unused

[[Page 1993]]

Sec.  75.619. We do not propose any changes to the text of this 
section.
    Reasons: To create space for an additional section under the 
Construction heading regarding safety and health standards, we propose 
to move current Sec.  75.618 to Sec.  75.619.
Section 75.620 General Conditions on Publication
    Current Regulation: Section 75.620(b) includes the text of a 
statement that grantees must include in any publication that contains 
project materials.
    Proposed Regulation: The proposed revision would update the 
required statement with current and more comprehensive language, 
including current forms of publication, such as on a website or a web 
page.
    Reasons: The statement was last updated in 1980. Since then, 
Federal Government endorsement disclaimers, including the one in Sec.  
75.620(b), have evolved to be more comprehensive. We propose updating 
the statement to mirror the standard disclaimer used by the Department 
in other contexts, such as what the Department may require on work 
products developed by Department contractors. In addition, methods of 
publication have changed since 1980, to include websites and web pages.
Section 75.623 Public Availability of Grant-Supported Research Articles
    Current Regulation: None.
    Proposed Regulation: We propose to add a new Sec.  75.623 to 
require each grantee that prepares a peer-reviewed scholarly 
publication as part of its grant award or based on grant-funded 
research to make the publication available to the public by submitting 
the final peer-reviewed scholarly publication to ERIC. To support Sec.  
75.620, we also propose to add a definition of ``peer-reviewed 
scholarly publication'' under Sec.  77.1(c).
    Reasons: This section would align the practice of the entire 
Department with the current practice of IES, which requires all its 
grantees to make their peer-reviewed publications available to the 
public in this manner. Currently, these materials are exempt from the 
open licensing requirements in 2 CFR 3474.20. Applying the requirement 
in this section to peer-reviewed publications produced under grants 
made by other offices in the Department is in line with the 
Department's Plan and Policy Development Guidance for Public Access,\1\ 
with the Office of Science and Technology Policy's memorandum, 
Increasing Access to the Results of Federally Funded Research,\2\ and 
would ensure that the results of grant-funded research are available to 
a wider array of Department partners and other interested parties than 
is currently the case.
---------------------------------------------------------------------------

    \1\ The Department's Plan and Policy Development Guidance for 
Public Access is available at https://ies.ed.gov/funding/pdf/EDPlanPolicyDevelopmentGuidanceforPublicAccess.pdf.
    \2\ The Office of Science and Technology Policy's memorandum is 
available at https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/ostp_public_access_memo_2013.pdf.
---------------------------------------------------------------------------

Section 75.700 Compliance With the U.S. Constitution, Statutes, 
Regulations, Stated Institutional Policies, and Applications
    Current Regulation: Section 75.700 states that grantees shall 
comply with and uses Federal funds in accordance with applicable 
statutes, regulations, and approved applications.
    Proposed Regulation: We propose to revise Sec.  75.700 to include 
Executive orders in addition to statutes, regulations, and approved 
applications.
    Reasons: We propose this revision to align Sec.  75.700 to Sec.  
75.708, which includes the requirement for subgrantees to comply with 
Executive orders.
Section 75.708 Subgrants
    Current Regulation: Section 75.708(b) states that the Secretary 
may, through an announcement in the Federal Register, authorize 
subgrants when necessary to meet the purposes of a program, and 
paragraph (e) states that grantees may contract for supplies, 
equipment, construction, and other services.
    Proposed Regulation: We propose to revise paragraph (b) to state 
that this authorization may take place ``through an announcement in the 
Federal Register or other reasonable means of notice.'' We propose to 
revise paragraph (e) to clarify that, when subgrants are not allowed, 
grantees are still authorized to contract, as needed, for supplies, 
equipment, and other services.
    Reasons: There may be circumstances in which Federal Register 
notification is not the most efficient or effective way for the 
Secretary to authorize subgrants. To account for these situations, we 
propose adding more flexibility to the current regulation. We also 
propose to clarify when and how contracts for supplies, equipment, and 
other services can be used when subgrants are not allowed.
Section 75.720 Financial and Performance Reports
    Current Regulation: Section 75.720 sets out the financial and 
performance reporting requirements that grantees must meet.
    Proposed Regulation: We propose to add a new paragraph (d) that 
would require grantees to publish, on a public-facing website, the 
reports they submit to the Secretary under Sec.  75.720 upon request of 
the Secretary. Under this new paragraph, the Secretary could choose 
which grant competitions would be subject to this requirement. The 
Department expects that any such publication on a public-facing website 
would be consistent with applicable accessibility requirements and in 
accordance with privacy laws.
    Reasons: This requirement would increase transparency with respect 
to grantee performance and provide useful information on the 
effectiveness of projects supported by Department grant funds to 
grantee participants and beneficiaries as well as the general public.
Section 75.901 Suspension and Termination
    Current Regulation: Section 75.901 indicates that the Secretary may 
use the Office of Administrative Law Judges (OALJ) to resolve disputes 
concerning a variety of matters that are not subject to other 
proceedings.
    Proposed Regulation: We propose to revise the introductory language 
to this regulation by removing the following words: ``that are not 
subject to other procedures.''
    Reasons: This proposed change would clarify the authority of the 
Secretary to use the OALJ to resolve disputes on the matters identified 
in Sec.  75.901(a)-(f).

Part 76 State-Administered Programs

Section 76.1 Programs to Which Part 76 Applies
    Current Regulation: Section 76.1 describes the programs to which 
part 76 applies. Paragraph (a) of Sec.  76.1 references ``each State-
administered program'' while paragraph (b) references ``a State formula 
grant program.''
    Proposed Regulation: We propose to revise the language in both 
paragraphs to clarify that part 76 applies to ``State-administered 
formula grant programs.'' We also propose to make conforming changes, 
as necessary, throughout this part, including the title for this part.
    Reasons: Inconsistent use of terms within part 76 could create 
confusion about its applicability. These updates would clarify that all 
provisions of part

[[Page 1994]]

76 apply only to ``State-administered formula grant programs.''
Section 76.50 Statutes Determine Eligibility and Whether Subgrants Are 
Made
    Current Regulation: Section 76.50 describes the circumstances in 
which the Secretary makes a grant to a State agency, either as directed 
by the applicable statute and regulation or as designated by the State 
consistent with the applicable statute and regulation. The regulation 
states explicitly that the applicable statute determines the extent to 
which a State may use grant funds itself or make subgrants. Regarding 
subgrants, Sec.  76.50(c) states that the regulations in part 76 on 
subgrants apply to a program only if subgrants are authorized under 
that program, and paragraph (d) states that the applicable statute 
determines an applicant's eligibility for a subgrant.
    Proposed Regulation: We propose to modify Sec.  76.50 in six 
general ways. First, we propose to change the heading to read ``Basic 
Requirements for Subgrants.'' Second, we propose to add references to a 
State-administered formula grant program's regulations throughout. 
Third, we propose to make clear in new paragraph (b) that States may 
make subgrants using funds from State-administered formula grant 
programs unless prohibited by their authorizing statutes, implementing 
regulations, or the terms and conditions of their awards. Fourth, we 
propose to delete paragraphs (c) on how other requirements in part 76 
apply to subgrants and (d), which was a previous statement about 
entities eligible for subgrants, and to incorporate essential 
requirements into new paragraph (b). Fifth, we propose to add a new 
paragraph (c) to explicitly identify grantee responsibility for 
subgrantee monitoring consistent with 2 CFR 200.332. Finally, we 
propose to add a new paragraph (d) to clarify that subgranting 
prohibitions under which Department programs operate should not be 
construed as prohibiting grantees from entering into contracts for 
goods or services in accordance with 2 CFR part 200, subpart D--Post 
Federal Award Requirements (2 CFR 200.317-200.326).
    Reasons: We propose to modify this section to ensure that State-
administered formula grant programs have maximum flexibility to make 
subgrants. To that end, we propose to revise the heading to signal to 
States that subgrants are allowed, unless specifically prohibited by 
statute, regulation, or the terms and conditions of a grant award. 
Under the current regulations, some State-administered formula grant 
programs have interpreted statutory silence as meaning that subgranting 
is not permissible. We believe that the proposed regulations would 
address this unintended consequence through the changes proposed to the 
heading and to new paragraph (b). However, we may prohibit subgranting 
under the terms and conditions of a grant award, as appropriate, such 
as when subgranting would be counter to fundamental statutory or 
regulatory requirements for a program. We also propose to refer to both 
applicable statutes and regulations throughout the provision, rather 
than just statutes, in case the applicable regulations provide 
necessary clarification. We propose to remove current paragraph (b) 
because it does not provide any guidance that is not already provided 
in a program's authorizing statute. We propose to incorporate essential 
requirements from paragraphs (c) and (d) into new paragraph (b). As a 
result, we propose to delete current paragraphs (c) and (d) as no 
longer necessary. We propose to add new paragraph (c) to highlight 
grantee responsibilities for monitoring subgrantees to encourage fiscal 
responsibility, transparency, and appropriate control of taxpayer 
funds. We propose to add a new paragraph (d) to clarify that, 
regardless of the authority to subgrant, a grantee is authorized to 
contract for supplies, equipment, and other services in accordance with 
2 CFR part 200, subpart D--Post Federal Award Requirements (2 CFR 
200.317-200.326.
Section 76.101 The General State Application
    Current Regulation: Section 76.101 requires a State that makes 
subgrants to LEAs under a program subject to this part to have on file 
with the Secretary a State plan that meets the requirements of section 
441 of GEPA (20 U.S.C. 1232d).
    Proposed Regulation: We propose to revise Sec.  76.101 to make 
clear that the requirements of section 441 of GEPA do not apply to a 
State plan submitted for a program under the ESEA.
    Reasons: Section 8304(b) of the ESEA (20 U.S.C. 7844(b)) states 
that the requirements of section 441 of GEPA do not apply to State 
plans under the ESEA. The purpose of this change is to align the 
regulations with that statutory provision.
Section 76.102 Definition of State Plan for Part 76
    Current Regulation: Section 76.102 includes a table specifying 
applications or other documents required under various State-
administered formula grant programs that, for the purpose of part 76, 
are considered ``State plans.''
    Proposed Regulation: We propose to remove the table from Sec.  
76.102 and to describe a State plan, as that term is used in part 76, 
as ``any document that the applicable statutes and regulations for a 
State-administered formula grant program require a State to submit in 
order to receive funds for the program.'' To the extent that any 
provision of part 76 conflicts with program-specific implementing 
regulations related to the plan, the program-specific implementing 
regulations govern.
    Reasons: Current Sec.  76.102 includes a table intended to list all 
programs that are covered by the State plan regulations in part 76. 
However, some of the listed programs no longer exist. Other programs 
have been renamed under a reauthorized statute. Rather than update the 
table of programs, given that programs may become outdated in the 
future, we believe that a definition aligned with governing statutes 
and regulations would be the best way to convey the intended scope of 
the provision. In addition, the proposed regulations would make clear 
that, if any provision of part 76 conflicts with program-specific 
implementing regulations related to the plan, the program-specific 
implementing regulations govern.
Section 76.103 Multi-Year State Plans
    Current Regulation: Section 76.103 makes clear that a State plan 
will be effective for a period of more than one fiscal year, to be 
determined by the Secretary or by regulations. It authorizes the 
Secretary to stagger submission of State plans and identifies numerous 
programs to which the section does not apply.
    Proposed Regulation: We propose to simplify Sec.  76.103 by 
deleting the list of programs to which the provision does not apply. 
Instead, we would make clear that a State plan may be effective for 
more than one year unless otherwise specified by statute, regulation, 
or the Secretary. In addition, we remove the note at the end of this 
section.
    Reasons: All the programs listed in Sec.  76.103(c) have been 
reauthorized or repealed since the provision was promulgated in 1980. 
Rather than listing other programs that could become outdated, we would 
add language that affords flexibility for a multiyear State plan unless 
a statute, regulation, or the Secretary specifies otherwise. We also 
propose to remove the note at the end of this section because it is 
outdated and no longer needed.

[[Page 1995]]

Sections 76.125-76.137 Consolidated Grant Applications for Insular 
Areas
    Current Regulation: The Department's consolidated grant authority 
regulations in part 76, as well as in the definitions of ``State'' in 
Sec. Sec.  77.1(c) and 79.2, refer to the Trust Territory of the 
Pacific Islands. In addition, Sec.  76.125(c) states that the Secretary 
may make annual consolidated grants to assist an Insular Area in 
carrying out a Department State-administered formula grant program. The 
following sections then refer to programs listed in Sec.  76.125 as 
being eligible for consolidation.
    Proposed Regulations: We propose to update the regulations to 
remove all references to the Trust Territory of the Pacific Islands. In 
addition, the proposed regulations would revise Sec.  76.125(c) to 
clarify that grantees may consolidate grants only if not otherwise 
prohibited from doing so by applicable law. Also, we propose to change 
all references in the following sections from ``programs listed in 
Sec.  76.125(c)'' to ``State-administered formula grant programs.'' We 
also propose to revise the examples in Sec. Sec.  76.128 and 76.129 to 
update the statutory references, and to make conforming changes to 
remove the term ``Trust Territory of the Pacific Islands,'' from the 
definitions of ``State'' in Sec. Sec.  77.1(c) and 79.2.
    Reasons: The Trust Territory of the Pacific Islands was a United 
Nations trust territory administered by the United States from 1947 to 
1986. During the latter part of that time, it was eligible for 
Department program funding and services much like the Outlying Areas of 
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, 
and the U.S. Virgin Islands. For that reason, it was included, in 
EDGAR, in the Department's consolidated grant authority regulations as 
well as in the EDGAR definitions of ``State'' in Sec. Sec.  77.1(c) and 
79.2.
    The trusteeship ended in 1986 and from it emerged the Federated 
States of Micronesia, the Republic of the Marshall Islands, and the 
Republic of Palau (collectively, the Freely Associated States). While 
the Freely Associated States still have a special relationship with the 
United States and each of them receives certain funds through the 
Department, as provided in their Compacts of Free Association with the 
United States, they do not receive funds as part of the Trust Territory 
of the Pacific Islands, which no longer exists. On this point, as a 
purely technical matter, we propose to delete the outdated reference to 
the Trust Territory of the Pacific Islands.
    The change to Sec.  76.125(c) would clarify that consolidation may 
take place only in a manner that is consistent with applicable law. For 
clarity, we propose to update references elsewhere to Sec.  76.125(c) 
to refer directly to ``State-administered formula grant programs.''
Sections 76.140-76.142 State Plan Amendments
    Current Regulation: Section 76.140 requires a State to amend its 
State plan if the Secretary determines that an amendment is essential 
or if there is a significant and relevant change regarding the plan. 
Section 76.141 requires a State to use the same procedures when 
amending its State plan as it did when submitting the plan to the 
Secretary. Section 76.142 requires the Secretary to use the same 
procedures to approve an amendment as the Secretary used when reviewing 
and approving the initial State plan.
    Proposed Regulation: We propose to remove duplicate language in 
Sec.  76.140(b) regarding when an amendment is needed. New proposed 
paragraph (c) would incorporate current Sec.  76.141 with revisions 
that would allow the Secretary to prescribe different procedures for a 
State to amend its State plan based on the characteristics of a 
particular State-administered formula grant program. We propose to 
remove Sec. Sec.  76.141-76.142.
    Reasons: The current regulations, in Sec.  76.140(b), go into 
greater detail than necessary about the kinds of changes that result in 
an amendment; the proposed regulations would simplify and clarify the 
regulations by stating that a State must submit an amendment whenever 
there is a significant and relevant change in information or assurances 
in the State plan. The language in current Sec.  76.140(b)(2) and 
(b)(3) could be included in the general ``information'' in the State 
plan and thus we propose combining the provisions in proposed Sec.  
76.140(b)(1). Current Sec. Sec.  76.141-76.142 are overly prescriptive 
in requiring States and the Secretary to use the same process for 
submitting and approving amendments as they used when submitting and 
approving an initial State plan. Those processes may be burdensome and 
may not always be appropriate for an amendment to a State plan. We 
propose to remove current Sec.  76.141 and add a new paragraph (c) to 
Sec.  76.140, which seeks to provide flexibility so that the Secretary 
may prescribe different procedures for States to use based on the 
specific State-administered formula grant program. The proposed 
regulations would also remove the requirement in current Sec.  76.142 
that the Secretary follow the same procedures when approving an 
amendment as the Secretary used to approve the initial State plan in 
order to allow the Secretary discretion to streamline the approval of 
amendments.
Section 76.301 Local Educational Agency Application in General
    Current Regulation: Section 76.301 requires an LEA that applies for 
a subgrant under a program subject to part 76 to have on file with the 
State an application that meets the requirements of section 442 of GEPA 
(20 U.S.C. 1232e).
    Proposed Regulation: We propose to make clear that the requirements 
of section 442 of GEPA do not apply to an LEA application for a program 
under the ESEA.
    Reasons: Section 8306(b) of the ESEA (20 U.S.C. 7846(b)) states 
that the requirements of section 442 of GEPA do not apply to LEA plans 
under the ESEA. We propose this change to align the regulation with the 
statute.
Section 76.401 Disapproval of an Application--Opportunity for a Hearing
    Current Regulation: Section 76.401 sets forth the requirements that 
a state educational agency (SEA) must meet when disapproving an 
application for a subgrant in one of the Department's covered State-
administered formula grant programs, which are identified in a table in 
the regulations. The regulation restates the requirements in section 
432 of GEPA (20 U.S.C. 1231b-2), including the due process an SEA must 
provide to an applicant for a subgrant before (or after, in some cases) 
the SEA either: (1) disapproves or fails to approve a subgrant 
application in whole or in part; or (2) fails to provide funds in 
amounts in accordance with the requirements of laws and regulations. 
Section 76.401 also reiterates the statutory requirements for the 
relevant timelines, the right of an applicant to appeal an SEA's final 
decision disapproving an application or failing to provide funds in the 
required amount to the Secretary, and the standard of review that the 
Secretary must apply in considering such an appeal. Section 76.401 is 
silent regarding the information that must be included in a notice of 
appeal submitted to the Secretary. Under Sec.  76.401(b), the 
requirements for providing an opportunity for a hearing before 
disapproving a subgrant application do not apply to a State agency 
other than an SEA.
    Proposed Regulation: We propose to revise the regulation in current 
Sec.  76.401 in several respects by:

[[Page 1996]]

    (1) Removing the table of programs and clarifying that the 
requirements apply to State-administered formula grant programs 
administered by an SEA in which the SEA makes subgrants.
    (2) Clarifying that an applicant must include a citation to the 
alleged violation of a Federal or State statute, rule, regulation, or 
guideline governing the applicable program and a brief description of 
the alleged violation when it requests that the SEA hold a hearing on 
the application disapproval.
    (3) Requiring a notice of appeal to the Secretary submitted 
pursuant to section 432(b) of GEPA to include, at a minimum, a citation 
to the specific Federal statute, rule, regulation, or guideline that an 
SEA allegedly violated and a brief description of the alleged 
violation.
    (4) Deleting an opportunity for a hearing if an SEA fails to 
provide funds in amounts required by statutes and regulations because 
Sec.  76.401 applies only to disapproval of an application for a 
subgrant. Rather, the requirement that an SEA hold a hearing, upon 
request of a subgrantee, when the SEA fails to provide funds in 
accordance with applicable statutes and regulations would be added to 
Sec.  76.783(a)(3), which describes other circumstances in which a 
subgrantee may request that an SEA hold a hearing that meets the 
procedural requirements in Sec.  76.401.
    (5) Making numerous other changes to eliminate duplicate 
provisions.
    Reasons: For several reasons, described below, we propose to 
clarify that a notice of appeal to the Secretary must cite the specific 
Federal statute, rule, regulation, or guideline the appellant believes 
the SEA's final decision violates and provide a brief description of 
the alleged violation. For the same reasons, we are also proposing to 
clarify that an applicant's request to an SEA for a hearing must 
provide a brief description of the alleged violation of Federal or 
State statute, rule, regulation, or guideline governing the applicable 
program.
    Section 432 of GEPA affords a subgrantee that is aggrieved by the 
final action of an SEA in disapproving or failing to approve its 
application for funds the right to request that the SEA conduct a 
hearing and, upon receiving an adverse final decision, to appeal the 
SEA's decision to the Secretary. This section applies only to SEAs. In 
some programs, the authorizing statute may require that a particular 
State agency be the sole State agency to administer the approved State 
plan, such as the Independent Living Services for Older Individuals Who 
are Blind program in section 752(a)(2) of the Rehabilitation Act of 
1973 (29 U.S.C. 796k(a)(2)). This program requires that the sole State 
agency to administer the approved State plan be the State Vocational 
Rehabilitation Services agency that provides services to individuals 
who are blind in the State. Even if that State agency is located within 
an SEA, if it is the other State agency designated by statute that is 
the only agency authorized to take the final action in disapproving or 
failing to approve a subgrantee's application for funds, then it is not 
the SEA that is taking the final action within the meaning of Sec.  
76.401, and this section does not apply to that program.
    These due process protections contemplate that an SEA has violated 
a Federal or State statute, rule, regulation, or guideline governing 
the applicable program. Clarifying that a notice of appeal to the 
Secretary must cite the specific Federal statute, rule, regulation, or 
guideline that the SEA allegedly violated will help to ensure that an 
appeal subject to GEPA and the procedures described in Sec.  76.401 is 
about a violation of Federal law, consistent with GEPA, and not solely 
a disagreement with the SEA's substantive decision. The GEPA appeal 
rights apply only when an SEA allegedly violates Federal law and, so, 
it follows that a GEPA appeal must, at a minimum, allege such a 
violation.
    In the past few years, the Department received numerous GEPA 
appeals that were without merit; these appeals often came from 
applicants whose applications were not selected for funding pursuant to 
a discretionary subgrant competition. In a large portion of these 
appeals, the primary argument that the appellant made was that it 
disagreed with the SEA's assessment of its application. This argument 
is insufficient as a matter of law in a GEPA appeal because it does not 
allege that the SEA's final decision was contrary to Federal laws, 
rules, regulations, or guidelines. Even so, currently, when such an 
appeal is filed, the appeal is fully briefed, reviewed, and adjudicated 
before the Secretary issues a final decision denying the appeal, 
thereby tying up SEA and Department resources for an extended period.
    Under our proposed revisions to Sec.  76.401(d)(3), the Secretary 
would be able to dismiss an appeal immediately upon receipt of a notice 
of appeal if it is apparent on the face of the notice that it fails to 
allege a violation of Federal statutes, rules, regulations, or 
guidelines governing the applicable program. The Secretary would, as a 
matter of practice, prior to dismissing a GEPA appeal, first request 
that the appellant show cause for why the appeal should not be 
dismissed and permit the appellant to revise its notice of appeal to 
include the specific Federal statute, rule, regulation, or guideline 
the appellant alleges the SEA violated. By asking that the appellant 
show cause prior to dismissing the appeal, the Secretary would not 
cause undue harm to appellants unrepresented by legal counsel who 
submit their appeals on their own behalf and might have omitted the 
specific Federal statute, rule, regulation, or guideline the appellant 
alleges the SEA violated from the initial version of the appeal. Absent 
the appellant's ability to show cause, however, the appeal would be 
dismissed, thereby limiting GEPA appeals to those that fall under the 
Secretary's authority under section 432 of GEPA: those that allege a 
violation of Federal law, rule, regulation, or guideline governing the 
applicable program.
    The proposed regulations would also make changes to clarify, 
streamline, and delete duplicative information. For example, current 
Sec.  76.401 includes a table of programs to which the section applies. 
Some programs listed no longer exist. Other programs have been renamed 
under a reauthorized statute. Rather than update the table of programs, 
which may become outdated, we believe that clarifying that the 
procedures described in the section apply only to an applicant that is 
aggrieved by the final action of an SEA with respect to disapproving or 
failing to approve its application for funds under a State-administered 
formula grant program ensures that, over the long term, the text does 
not become outdated. Additionally, we propose to move the requirements 
with respect to a subgrantee's allegation that an SEA failed to provide 
funds in amounts in accordance with the requirements of applicable 
statutes and regulations to Sec.  76.783(a)(3). Section 76.401 is about 
disapproval of an application, and it is, therefore, more logical to 
include the ``failing to provide funds'' provision in Sec.  76.783, 
which describes other circumstances in section 432 of GEPA in which a 
subgrantee may request a hearing and, ultimately, appeal to the 
Secretary. This does not change the procedural requirements that apply 
when a subgrantee alleges that an SEA failed to provide funds in 
amounts prescribed by law.
    The other changes in proposed Sec.  76.401 are for consistency and 
clarity.

[[Page 1997]]

Section 76.560-76.569 Indirect Cost Rates
    Current Regulation: Sections 76.560-76.569 describe the application 
of indirect costs under State-administered formula grant programs, 
including who approves indirect costs rates and how they are applied.
    Proposed Regulation: The Uniform Guidance, in conjunction with 
EDGAR, governs Department grants and, therefore, these provisions 
should be closely aligned with one another. The proposed revisions 
would align these sections of EDGAR with the Uniform Guidance, include 
cost allocation plans along with indirect costs rates, and provide 
clarity on the application of indirect cost rates, as well as the 
addition of Sec.  76.562, specific to reimbursement of indirect costs.
    Reasons: These sections of EDGAR currently do not reflect updates 
to the Uniform Guidance, including the addition of the de minimis rate, 
referencing cost allocation plans as performing a role equivalent to 
indirect costs rate, and clarifications on restricted rates and this 
alignment is necessary to ensure that there is no confusion about these 
requirements. Moreover, the proposed changes are intended to add 
clarity to how indirect cost rates are applied, the indirect cost rate 
options an entity has, and reimbursement of indirect costs.
Section 76.600 Where To Find Construction Regulations
    Current Regulations: Section 76.600 provides section references to 
the EDGAR regulations on construction.
    Propose Regulation: We propose to amend certain regulations related 
to construction projects and real property acquisition in parts 75, 76, 
and 77. Specifically for Sec.  76.600, the proposed regulations would 
update citations to align with the proposed revision in part 75.
    Reasons: The purpose of these proposed changes is to update the 
current regulations in response to statutory changes and related issues 
that have arisen, as many of the regulations for this section have not 
been updated since 1992; to better align the regulations to the Uniform 
Guidance; and to improve clarity and transparency regarding Federal 
program operations. The proposed changes would also update the 
citations to the regulations on construction in part 75 and set out the 
State's responsibilities when approving construction projects.
Section 76.650-76.662 Participation of Students Enrolled in Private 
Schools
    Current Regulation: Sections 76.650-76.662 include general 
requirements applicable to State-administered formula grant programs 
that require a grantee or subgrantee to provide for participation by 
students enrolled in private schools.
    Proposed Regulation: We propose to amend section 76.650 and remove 
Sec. Sec.  76.651-76.662. As a result, we also propose updates to Sec.  
75.119, which cross-references Sec.  76.656, and Sec.  75.650, which 
cross-references Sec. Sec.  76.650-76.662. In addition, we propose to 
delete Sec.  299.6(c), which provides that Sec. Sec.  76.650-76.662 do 
not apply to the programs covered under Sec.  299.6(b).
    Reasons: Sections 76.650-76.662 are currently unchanged since they 
were issued in 1980. Since then, applicable statutory requirements have 
changed, and the Department has issued program-specific regulations 
regarding the provision of services to private school children, 
teachers and other educational personnel, and families. These include 
the following regulations: (1) 34 CFR 200.62-200.68, applicable to the 
provision of equitable services under part A of Title I of the ESEA; 
(2) Sec. Sec.  299.6-299.10, applicable to equitable services for 
programs subject to the requirements in section 8501 of the ESEA; and 
(3) 34 CFR 300.130-300.144, applicable to equitable services under part 
B of the Individuals with Disabilities Education Act (IDEA). Therefore, 
we propose to remove Sec. Sec.  76.651-76.662 because they are 
unnecessary, redundant, and, in some instances, inconsistent with 
current law. We propose to amend Sec.  76.650 to reference Sec. Sec.  
299.7-299.11 to cover any State-administered formula grant program that 
requires the provision of services to private school children, teachers 
and other educational personnel, and families and that is not otherwise 
governed by applicable regulations. We believe that this approach would 
ensure greater alignment across programs and reduce the potential for 
confusion. These proposed changes are for clarity and would not 
substantively affect the services and assistance available to private 
school students, educators, or families.
Section 76.665 Providing Equitable Services to Students and Teachers in 
Non-Public Schools
    Current Regulation: Section 76.665 applies to providing equitable 
services to children and teachers in non-public schools under the CARES 
Act. It was necessary because equitable services under the CARES Act 
were not governed by the provisions in part 299.
    Proposed Regulation: We propose to delete Sec.  76.665.
    Reasons: Section 76.665 is no longer needed because funds under the 
CARES Act are no longer available for obligation. Moreover, the 
regulations on determining the proportional share under Sec.  76.665(b) 
have been invalidated by several United States district courts (see, 
e.g., Michigan v. DeVos, 481 F.Supp.3d 984 (N.D. Cal. 2020) and 
Washington v. DeVos, 481 F.Supp.3d 1184 (W.D. Wash. 2020)).
Sections 76.670-76.677 Procedures for Bypass
    Current Regulation: Sections 76.670-76.677 establish procedural 
requirements applicable to programs under which the Secretary is 
authorized to waive requirements for providing services to private 
school children and implement a bypass under which the Department 
assumes responsibility for providing those services.
    Proposed Regulation: We propose to remove Sec. Sec.  76.670-76.677 
and add Sec. Sec.  299.18-299.28 in a new subpart G of part 299 and 
amend the requirements to reflect statutory changes.
    Reasons: Currently, the Secretary is authorized to implement a 
bypass only under ESEA State-administered formula grant programs and 
part B of the IDEA. With respect to part B of the IDEA, the Department 
has established program-specific regulations applicable to a bypass. 
Because the current bypass regulations in Sec. Sec.  76.670-76.677 
apply only to applicable ESEA State-administered formula grant 
programs, it is appropriate to remove these requirements from part 76, 
which applies to more than the ESEA, and add similar provisions as 
Sec. Sec.  299.18-299.28 of part 299, which establishes uniform 
administrative rules for ESEA programs. We describe Sec. Sec.  299.18-
299.28 elsewhere in this document.
Section 76.783 State Educational Agency Action--Subgrantee's 
Opportunity for a Hearing
    Current Regulation: Section 76.783 requires an SEA to provide a 
subgrantee an opportunity for a hearing under certain circumstances. 
With respect to an SEA, the regulation cross-references Sec.  76.401, 
which restates the requirements from section 432 of GEPA, including the 
due process an SEA must provide to subgrantees if the SEA either: (1) 
orders the repayment of misspent or misapplied Federal funds; or (2) 
terminates further assistance for an approved project.

[[Page 1998]]

    Proposed Regulation: The proposed regulation would add to Sec.  
76.783 the requirement currently in Sec.  76.401 that an SEA hold a 
hearing, upon request of a subgrantee, when the SEA fails to provide 
funds in amounts in accordance with the requirements of statutes, 
rules, regulations, or guidelines.
    Reasons: The proposed regulation would move the requirements with 
respect to a subgrantee's allegation that an SEA failed to provide 
funds in amounts in accordance with the requirements of statutes, 
rules, regulations, and guidelines from Sec.  76.401 to Sec.  76.783. 
Section 76.401 is about disapproval of an application, and it is, 
therefore, more logical to include the ``failing to provide funds'' 
provision in Sec.  76.783, which describes other circumstances under 
section 432 of GEPA in which a subgrantee of an SEA may request a 
hearing and, ultimately, appeal to the Secretary. This provision does 
not change the procedural requirements that apply when an SEA is 
alleged to have failed to provide funds in amounts prescribed by law; 
rather, it moves the requirement to a more relevant section of this 
part.

Part 77 Definitions That Apply to Department Regulations

Section 77.1 Definitions That Apply to All Department Programs
    Current Regulation: Section 77.1 includes a number of definitions, 
including a definition of ``direct grant program,'' which is referred 
to in Sec.  75.1. The regulation also includes definitions of 
``Director of the Institute of Museum Services,'' ``Director of the 
National Institute of Education,'' and ``State,'' definitions related 
to evidence, and definitions about the scope of a project. The current 
definition of ``evidence-based'' applies to both direct grant programs 
administered under part 75 and State-administered formula grant 
programs administered under part 76. These definitions support the 
various sections in EDGAR and are used by the Department in NIAs where 
relevant to the specific grant competition.
    Proposed Regulation: We propose to remove the definitions of 
``direct grant program'' and ``Director of the Institute of Museum 
Services.'' In addition, we propose technical updates to the following 
definitions: ``demonstrates a rationale,'' ``Director of the National 
Institute of Education,'' and ``evidence-based.'' Specifically, we 
propose limiting the definition of ``evidence-based'' to only direct 
grant programs administered under part 75, to align with the 
interpretation that underlying authorizing statutes are the source for 
the definition of ``evidence-based'' for formula grant programs. We 
propose technical updates to the cross-references in section 77.1(b) as 
a result of changes to the Uniform Guidance. We propose additional 
updates to the definitions of ``moderate evidence,'' ``national 
level,'' ``performance period,'' ``promising evidence,'' ``regional 
level'', ``strong evidence,'' and ``What Works Clearinghouse 
Handbooks.'' We propose to add definitions of ``construction,'' 
``evaluation,'' ``evidence-building,'' ``independent evaluation,'' and 
``minor remodeling,'' ``peer-reviewed scholarly publication,'' and 
``quality data.''
    Reasons:

Definitions of Direct Grant Program and Director of the National 
Institute of Education

    We propose to remove the definition of ``direct grant program,'' 
because it applies only to part 75 and the proposed regulations would 
define it in Sec.  75.1. Although a technical change, we propose to 
replace the definition of ``Director of the National Institute of 
Education'' with a definition of ``Director of the Institute of 
Education Sciences'' due to a statutory change in the name of that 
position, enacted in 2002.

Definitions of National Level and Regional Level

    We propose revising the definitions of ``national level'' and 
``regional level'' to replace the phrase ``process, product, strategy, 
or practice'' in these two definitions with the term ``project 
component'' because ``project component'' is already defined and would 
provide more clarity.

Definition of Project Period

    We propose clarifying, in the definition of ``performance period,'' 
that the ``period during which funds can be obligated'' is specific to 
grantees and not the Department.

Evidence-Related Definitions

    We propose expanding the definitions of ``moderate evidence,'' 
``promising evidence,'' and ``strong evidence,'' and the references to 
evidence levels for practice guides, effectiveness ratings for 
intervention reports, studies and samples in intervention reports to 
correspond with the designations on the What Works Clearinghouse 
website and in Version 5.0 of the What Works Clearinghouse Handbooks. 
We also propose to update the definition of ``What Works Clearinghouse 
Handbooks'' to incorporate by reference these updated standards.
    Additionally, we propose to modify the definition of ``moderate 
evidence'' to allow, for example, high-quality studies of low-incidence 
populations to meet the standard in the context of a systematic review. 
The new definition of ``construction'' would give meaning to a term 
used in multiple sections in parts 75 and 76, and is meant to add 
clarity, as well as the proposed definition of ``minor remodeling'' 
that is meant to help distinguish it from construction. The new 
definition of ``evaluation,'' a term used in various sections and 
especially in Sec.  75.210, would clarify and provide a shared 
understanding of what is meant when this term is used. The new 
definition of ``evidence-building,'' a term used in Sec.  75.210, would 
support the Department's efforts to ensure learning from funded grants 
where rigorous evaluation is not appropriate but feedback and 
continuous improvement efforts are better suited. The new definition of 
``quality data,'' as referenced in section 515 of the Treasury and 
General Government Appropriations Act, 2001 (Appendix C of Public Law 
106-554) (commonly known as the ``Information Quality Act'') and 
further defined in the Department's Information Quality Act Guidelines 
(www2.ed.gov/policy/gen/guid/iq/iqg.html), would support the 
Department's ongoing effort to improve the data that the Department 
receives from applicants and grantees by ensuring data encompass 
utility, objectivity, and integrity of the information. The new 
definition of ``independent evaluation,'' a term used in Sec.  75.590, 
would support the Department's ongoing effort to increase the quality 
and credibility of the project evaluations supported by competitive 
grant programs through evaluations conducted independently from project 
developers and implementers. As discussed in greater detail in the 
section regarding Sec. Sec.  76.125-76.137, the revised definition of 
``State'' would remove the reference to the Trust Territory of the 
Pacific Islands. The revisions to the other definitions listed above 
would clarify the regulations and align with statutory language.

Definition of Evidence-Based

    State-administered formula grant programs administered under part 
76 have their own statutory definitions of ``evidence-based'' and 
limiting the scope of this definition to part 75 will help ensure that 
the regulatory and statutory definitions of ``evidence-based'' do not 
conflict.

[[Page 1999]]

Definitions of Construction and Minor Remodeling

    We propose adding a definition of ``construction'' and revising the 
definition of ``minor remodeling'' under Sec.  77.1(c). This proposed 
definition of ``construction'' is modeled after the definition of 
``construction'' in the Impact Aid program regulations (34 CFR 
222.176(a) ``Construction''). The Department has found that it is 
important to define ``construction'' to distinguish construction 
activity from ``minor remodeling'', a term already defined in Sec.  
77.1(c), as there has been confusion about what activities are 
considered construction, and which are considered minor remodeling. We 
propose to revise the term ``minor remodeling'' to more clearly 
indicate that minor remodeling is not considered ``construction'' under 
the proposed definition.

Definition of Peer-Reviewed Scholarly Publication

    We propose adding a definition of ``peer-reviewed scholarly 
publication'' to support the use of this term in Sec.  75.620. This 
definition is intended to clarify that research is made available in a 
variety of formats, and that research funded by the Department that is 
submitted for publication in scholarly publications should also be made 
available for free by submission to ERIC.

34 CFR Part 79--Intergovernmental Review of Department of Education 
Programs and Activities

Section 79.1-79.8 Intergovernmental Review
    Current Regulation: Part 79 discusses the requirements related to 
intergovernmental review of Department programs and activities.
    Proposed Regulation: We propose to remove from Sec. Sec.  79.1, 
79.3, 79.4, and 79.8 references to Section 401 of the Intergovernmental 
Cooperation Act of 1968 and Section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966, which are outdated.
    Reasons: Section 401 of the Intergovernmental Cooperation Act of 
1968 and Section 204 of the Demonstration Cities and Metropolitan 
Development Act of 1966 are outdated, and we therefore propose to 
remove them from these sections.

34 CFR Part 299--General Provisions

Section 299.7
    Current Regulation: None.
    Proposed Regulation: We propose to add a new Sec.  299.7 to 
incorporate the requirements in ESEA section 8501 for consultation with 
private school officials for programs that require the provision of 
equitable services to private school children, teachers, and other 
educational personnel.
    Reasons: This section would reflect the requirements for 
consultation with private school officials for programs that require 
the provision of equitable services to private school children, 
teachers, and other educational personnel. The addition of a section on 
consultation is consistent with the current regulations on Title I 
equitable services in Sec.  200.63. This section would also clarify the 
requirements in section 8501(c)(1)(H) of the ESEA, which reference the 
number of children from low-income families in a participating public 
school attendance area who attend private schools. This language is the 
same as a similar provision in section 1117(b)(1)(J) of the ESEA, which 
applies to equitable services under Title I, part A, but is not 
applicable to equitable services under other covered programs because 
participation in equitable services under these other programs is not 
limited to children from low-income families who live in a Title I 
participating public school attendance area.

34 CFR Part 299--General Provisions

Section 299.8
    Current Regulation: Section 76.660, which elsewhere in this 
document we propose to remove, contains information about the context 
in which a subgrantee may use program funds to pay for the services of 
an employee of a private school.
    Proposed Regulation: We propose to add a new Sec.  299.8 to 
incorporate the information articulated in Sec.  76.660, which we 
propose elsewhere in this document to remove. Proposed Sec.  299.8 
would note that, in providing for the participation of students in 
private schools, a grantee or subgrantee may use program funds to pay a 
private school employee if the employee performs services outside of 
his or her regular hours of duty and under public supervision and 
control. While Sec.  76.660 refers only to subgrantees, the proposed 
Sec.  299.8 would also clarify that a grantee, in addition to a 
subgrantee, may pay for services of private school personnel if the 
relevant conditions are met.
    Reasons: Incorporating this provision in part 299 would consolidate 
regulations related to the participation of private school students and 
teachers in part 299 and clarify that the same approach applies whether 
a grantee or subgrantee is providing services to students enrolled in 
private schools.
Section 299.16 What must an SEA include in its written resolution of a 
complaint?
    Current Regulation: None.
    Proposed Regulation: We propose to add a new Sec.  299.16 to 
require that an SEA's written resolution of a complaint from an 
organization or individual alleging violation of a Federal statute or 
regulation that applies to an applicable program include specific 
elements.
    Reasons: This section would add clarity regarding the contents of 
an SEA's written resolution of a complaint to help ensure that the 
resolution includes relevant information and is clear, concise, and 
understandable to the parties involved. This would also help facilitate 
the Department's timely review and resolution of any appeal of an SEA's 
written resolution of a complaint, particularly within the context of 
equitable services appeals that require the Department to investigate 
and resolve an appeal within 90 days of receipt.
Section 299.17 What must a party seeking to appeal an SEA's written 
resolution of a complaint include in its appeal request?
    Current Regulation: None.
    Proposed Regulation: We propose to add a new Sec.  299.17 to 
require that certain elements be included in a party's appeal of an 
SEA's written resolution of a complaint.
    Reasons: This section would clarify what must be included in an 
appeal in order to facilitate the Department's timely review and 
resolution of the appeal, particularly within the context of equitable 
services appeals that require the Department to investigate and resolve 
an appeal within 90 days of receipt.
Section 299.18 When are bypass provisions applicable?
    Current Regulation: None.
    Proposed Regulation: We propose to add a new Sec.  299.18, which 
would incorporate part of current Sec.  76.670(a), which elsewhere in 
this document we propose to remove. Section 299.18 would clarify those 
applicable ESEA programs under which the Secretary is authorized to 
waive the requirements for providing equitable services to private 
school children, teachers, and other educational personnel (hereafter, 
for ease of reference, ``private school children'') and implement a 
bypass.
    Reasons: Because current Sec.  76.670(a) applies only to ESEA 
programs under which the Secretary is authorized to waive the 
requirements for providing equitable services to private school

[[Page 2000]]

children and implement a bypass, we propose to move this section to a 
new subpart G of part 299, which would contain other requirements 
regarding the provision of equitable services to private school 
children. Proposed Sec.  299.18 would delete the list of applicable 
programs contained in current Sec.  76.670(a) because that list is out 
of date.
Section 299.19 Bypass--General
    Current Regulation: None.
    Proposed Regulation: Proposed Sec.  299.19 would state the 
statutory standards that authorize the Secretary to implement a bypass.
    Reasons: We propose to add Sec.  299.19 to clarify the 
circumstances in which the Secretary is authorized to waive the 
requirements for providing equitable services to private school 
children and implement a bypass.
Section 299.20 How To Request a Bypass
    Current Regulation: None.
    Proposed Regulation: Proposed Sec.  299.20 would clarify the 
circumstances in which a private school official or an agency, 
consortium, or entity, as applicable, may request a bypass.
    Reasons: Sections 1117(b)(6)(C) and 8501(c)(6)(C) of the ESEA 
contain provisions added by the Every Student Succeeds Act that require 
an SEA to provide equitable services directly or through a contract 
with a public or private agency, organization, or institution if an 
appropriate private school official has requested that the SEA provide 
those services and demonstrated that an agency, consortium, or entity 
has not met the requirements of section 1117 or 8501, as applicable. If 
an SEA determines that it is appropriate to provide equitable services 
itself, a bypass request to the Secretary would be unnecessary. 
Accordingly, proposed Sec.  299.20(a) would clarify that an appropriate 
private school official may request a bypass from the Secretary if an 
SEA declines to provide equitable services itself following a private 
school official's request or if the failure to provide equitable 
services is by an SEA. Proposed Sec.  299.20(b) would clarify that such 
a request may also be made if an agency, consortium, or entity is 
prohibited by law from providing equitable services.
Section 299.21 Notice of Intent To Implement a Bypass
    Current Regulation: Section 76.671 contains notice procedures that 
the Secretary uses prior to implementing a bypass, which elsewhere in 
this document we propose to remove.
    Proposed Regulation: Proposed Sec.  299.21 contains notice 
provisions essentially identical to those in current Sec.  76.671, with 
a few edits to conform language to section 8504 of the ESEA.
    Reasons: We propose to remove current Sec.  76.671 and include its 
substance in proposed Sec.  299.21 in new Subpart G of part 299, which 
contains other provisions regarding the provision of equitable services 
to private school children.
Section 299.22 Filing Requirements
    Current Regulation: Section 76.670(b) contains filing requirements 
to request that the Secretary implement a bypass, which elsewhere in 
this document we propose to remove.
    Proposed Regulation: Proposed Sec.  299.22 contains filing 
requirements similar to those in current Sec.  76.670(b).
    Reasons: We propose to remove current Sec.  76.670(b) and include 
its substance in proposed Sec.  299.22 in new Subpart G of part 299, 
with changes to replace references to facsimile transmission with 
references to electronic mail.
Sections 299.23 Through 299.28 Bypass Determination Process
    Current Regulation: Sections 76.672-76.677, which elsewhere in this 
document we propose to remove, contain procedures for implementing a 
bypass.
    Proposed Regulation: Proposed Sec. Sec.  299.23-299.28 are 
essentially identical to Sec. Sec.  76.672-76.677, with a few edits to 
conform to section 8504 of the ESEA.
    Reasons: We propose to remove current Sec. Sec.  76.672-76.677 and 
include their substance, with minor edits, in proposed Sec. Sec.  
299.23-299.28 in new subpart G of part 299, which contains other 
regulations regarding the provision of equitable services to private 
school children.

Executive Orders 12866, 13563, and 14094

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is ``significant'' 
and, therefore, subject to the requirements of the Executive order and 
subject to review by OMB. Section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094, defines a ``significant regulatory 
action'' as an action likely to result in a rule that may--
    (1) Have an annual effect on the economy of $200 million or more 
(as of 2022 but adjusted every 3 years by the Administrator of the 
Office of Information and Regulatory Affairs (OIRA) of OMB for changes 
in gross domestic product), or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
Tribal governments;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities, or the principles 
stated in the Executive order, as specifically authorized in a timely 
manner by the Administrator of OIRA in each case.
    This proposed regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f)(4) of Executive Order 
12866, as amended by Executive Order 14094. Notwithstanding this 
determination, we have assessed the potential costs and benefits, both 
quantitative and qualitative, of this proposed regulatory action and 
have determined that the benefits would justify the costs.
    We have also reviewed these proposed regulations under Executive 
Order 13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and

[[Page 2001]]

    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' OIRA has emphasized 
that these techniques may include ``identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes.''
    We are issuing these proposed regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on an analysis of anticipated costs 
and benefits, we believe that these proposed regulations are consistent 
with the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.

Potential Costs and Benefits

    We have reviewed the changes proposed in this NPRM in accordance 
with Executive Order 12866, as amended by Executive Order 14094, and do 
not believe that these changes would generate a considerable increase 
in burden. In total, we estimate that the proposed changes in this NPRM 
would result in a net decrease in burden of approximately $4,000 with 
transfers of between $109.7 and $113.8 million. Most of the changes 
proposed in this NPRM are technical in nature and are unlikely to 
affect the administration of programs or allocation of benefits in any 
substantial way. However, given the large number of edits proposed 
herein, we discuss each provision, other than those for which we are 
updating citations or cross-references and making other technical 
edits, and its likely costs and benefits in turn below.
    Proposed changes to Sec. Sec.  75.1 and 75.200 would simply combine 
currently existing text into a single section and clarify terms used. 
We do not expect that these changes will have any quantifiable cost, 
and it may benefit the Department and general public by improving the 
clarity of the regulations.
    The proposed deletion of Sec.  75.4 as unnecessary and redundant is 
unlikely to generate any quantifiable cost and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to Sec.  75.60, which would delete an outdated 
table and clarify a definition, are unlikely to generate any 
quantifiable cost and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.101 are unlikely to generate any 
meaningful cost and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec. Sec.  75.102 and 75.104, which would move 
paragraph (b) of Sec.  75.102 to Sec.  75.104, are unlikely to generate 
any quantifiable costs and may benefit the Department and general 
public by improving the clarity of the regulations.
    Proposed changes to Sec.  75.105, which add reference to an already 
existing exemption to the public comment period to the regulations, are 
unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to Sec.  75.109, which would eliminate the 
requirement that an applicant submit two copies of any paper 
applications in addition to the original, may reduce costs for 
applicants that submit paper applications. However, those savings are 
likely to be minimal, given the small incremental cost of photocopies 
and the low number of paper applications the Department receives in any 
year. At most, we estimate that it would save applicants $7.50 per 
application, assuming a 75-page application photocopied at a rate of 
$0.05 per page. Assuming an average of 50 paper applications submitted 
per year, this change would result in an annual savings of 
approximately $375.
    Proposed changes to Sec.  75.110, which would more clearly specify 
how applicants must report against program measures and project-
specific performance measures, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.112, which would allow the Secretary 
to require applicants to submit a logic model, are unlikely to generate 
any quantifiable costs or benefits. Many grant competitions already 
include this requirement and, to the extent that it is included in 
additional competitions in the future, we do not believe that it would 
create a substantial burden for applicants, because we assume that 
applicants in those programs would likely already have conceptualized 
an implicit logic model for their applications and, therefore, would 
experience only minimal paperwork burden associated with memorializing 
it in their applications.
    Proposed changes to Sec.  75.127, which would add the term 
``partnership'' and clarify that all members of a group application 
must be eligible entities, are unlikely to generate any quantifiable 
costs and may benefit the Department and general public by improving 
the clarity of the regulations.
    The proposed deletion of Sec. Sec.  75.190-75.192 as duplicative is 
unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to Sec.  75.201, which refer to selection 
``factors,'' as well as ``criteria'' are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.210, which would clarify word choice 
and make updates to language based on past experience in using the 
current selection criteria and factors, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.216, which would remove paragraphs (a) 
and (d) and revise the section heading, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations and providing the Department 
additional flexibility in considering applications.
    Proposed changes to Sec.  75.217, which would remove the word 
``solely'' and add ``and any competitive preference points,'' are 
unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to Sec.  75.219, which would reorganize the 
section to improve clarity, are unlikely to generate any quantifiable 
costs and may benefit the Department and general public by improving 
the clarity of the regulations.
    Proposed changes to Sec.  75.221, which would revise the section to 
improve clarity and remove unnecessary language, are unlikely to 
generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec.  75.222, which would update the mailing 
address for unsolicited applications, are unlikely to generate any 
quantifiable costs and may benefit the Department and general

[[Page 2002]]

public by improving the clarity of the regulations.
    The proposed change to Sec.  75.225 would change the current term 
``novice applicant'' to ``new potential grantee'' and revise the 
definition to provide greater flexibility to the Department in 
classifying applicants as ``new potential grantees.'' We believe that 
this proposed regulation may result in a number of changes in the 
behavior of both Department staff and applicants. First, we believe 
that the additional flexibility in the new definition will increase the 
number of competitions in which Sec.  75.225 is used. Second, we 
believe that it may result in additional applicants submitting 
applications for competitions in which Sec.  75.225 is used. Finally, 
we believe that the additional applicants, in conjunction with any 
absolute or competitive preference associated with the revised section, 
may shift at least some of the Department's grants among eligible 
entities. However, because this revised standard would neither expand 
nor restrict the universe of eligible entities for any Department grant 
program, and since application submission and participation in our 
discretionary grant programs is completely voluntary, we do not think 
that it would be appropriate to characterize any increased 
participation in our grant competitions as costs associated with this 
regulation.
    Proposed changes to Sec.  75.226, which would provide the Secretary 
with the authority to give special consideration to an application that 
demonstrates a rationale, are unlikely to generate any quantifiable 
costs or benefits. Many grant competitions already ask applicants to 
discuss the extent to which they can demonstrate a rationale for their 
proposed projects through a selection factor and, to the extent that it 
is included in additional competitions in the future, we do not believe 
that it would create a substantial burden for applicants, because we 
assume that applicants in those programs would likely already have 
conceptualized an implicit logic model for their applications and 
would, therefore, experience only minimal paperwork burden associated 
with memorializing it in their applications.
    Proposed changes to Sec.  75.227 would give the Secretary the 
authority to give special consideration to rural applicants. The 
proposed language in this section mirrors language adopted by the 
Department in the Administrative Priorities. As such, these proposed 
changes will not generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity and transparency 
of the Department's authority to provide special consideration to 
particular applicants.
    Proposed changes to Sec.  75.234, which would replace the word 
``special'' with the word ``specific,'' are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.250, which would update the heading 
and would clarify that an extension of the project period is authorized 
by EDGAR only if the applicable statutes and regulations permit it, are 
unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to Sec.  75.253, which would allow a grantee whose 
request for a non-competitive continuation award has been denied to 
request reconsideration, could generate costs to affected grantees and 
the Department. In general, we do not deny a large number of non-
competing continuation awards and, if that does happen, grantees are 
often aware of the likelihood of the decision well in advance and often 
cite no concerns if they do not receive a continuation award. 
Therefore, we do not believe that many grantees would qualify for the 
redress, and we do not believe that the few who may qualify would 
exercise the right. However, for the purpose of this analysis, we 
assume that we would process 10 such requests annually--which we 
believe is an overestimate of the likely incidence. For each request, 
we assume a project director earning $106.76 per hour, on average, 
would spend 24 hours drafting and submitting the request. At the 
Department, a program officer at the GS-13/1 level ($61.96 per hour) 
would spend approximately 8 hours reviewing each request, along with 2 
hours for their supervisor at the GS-14/1 level ($72.69 per hour) to 
review. We also assume that a Department attorney ($72.69 per hour) 
would spend approximately 4 hours reviewing each request. In sum, we 
estimate that this provision would generate an additional cost of 
approximately $25,622 for grantees and $9,320 for the Department per 
year.
    The proposed addition of a new Sec.  75.254 would give the 
Secretary the authority to approve data collection periods. The 
proposed language in this section is aligned with this previous 
authority under Sec.  75.250(b) as well the Administrative Priorities. 
As such, these proposed changes will not generate any quantifiable 
costs and may benefit the Department and general public by allowing for 
data collection periods that give grantees additional time to 
collection data to measure project impact.
    Proposed changes to Sec.  75.261, which would remove references to 
obsolete programs and make other edits, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.263, which would remove the clause 
``notwithstanding any requirement in 2 CFR part 200,'' are unlikely to 
generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec. Sec.  75.560-75.564, which align these 
sections with the Uniform Guidance and provide additional information 
on the application of indirect cost rates, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  75.590, which would allow the Department 
to require the use of an independent evaluation in a program, would 
likely generate transfers for affected grantees. Specifically, we 
assume that grantees that are required to use an independent evaluator 
will transfer grant funds from their currently designated purpose (such 
as to defray the costs of an internal evaluation) to pay for an 
independent evaluation. We note, however, that we do not believe that 
these transfers would substantially affect the level of support that 
beneficiaries of our competitive grant programs receive; the grantees 
would have spent a certain percentage of their awards on evaluation, 
whether such evaluation is conducted by an internal or external entity. 
We believe that the most likely programs in which the Department would 
require an independent evaluation are those that include an expectation 
of a rigorous evaluation using selection factors related to What Works 
Clearinghouse evidence standards in project evaluations. From 2014 
through 2022, we included such selection factors in 18 competitions 
(excluding programs that have their own independent evaluation 
requirements, such as Education Innovation and Research and its 
predecessor, Investing in Innovation, because these programs are 
already included in the baseline), with a combined average of $194.8 
million in awards per year. Assuming that evaluation costs in these 
programs average approximately 15 percent of total project costs, we 
estimate that the evaluations for these competitions would cost 
approximately $29,227,000

[[Page 2003]]

per year. Assuming equal-sized cohorts of new grants per year, we 
estimate that this total would increase through Year 5, when it would 
plateau at $146,135,000 per year. To the extent that grantees already 
use evaluators that would meet the requirements for an independent 
evaluation, this would represent an overestimate of the transfers 
associated with this provision.
    Proposed changes to Sec.  75.591, which clarify how grantees 
cooperate with Federal research activities, are unlikely to generate 
any quantifiable costs and may benefit the Department and general 
public by improving the clarity of the regulations.
    Proposed changes to Sec. Sec.  75.600-75.615 and Sec. Sec.  75.618-
75.619 would restructure the sections on construction to improve the 
flow of the information, as well as update citations, are unlikely to 
generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec.  75.620, which would update language 
regarding Federal endorsement, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    The proposed addition of Sec.  75.623 would require certain 
grantees to submit final versions of Department-funded research 
publications to ERIC so that they are publicly available. Given that 
submission of the files would be a required grant activity, we do not 
anticipate that the requirement generating any additional costs for 
grantees. To the extent that submission did generate additional 
burdens, they would likely be minimal and would be properly considered 
transfers from support of other grant-related activities. Such 
transfers would be de minimis. Further, the addition of this 
requirement would generate benefits for the general public by 
increasing the availability of publicly supported research.
    Proposed changes to Sec.  75.700, which would add Executive orders 
to the list of authorities with which grantees must comply, are 
unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to Sec.  75.708, which would allow the Secretary 
to provide notice authorizing subgrants through the Federal Register or 
another reasonable means, may generate minimal efficiency returns to 
the Department by reducing burdens and costs associated with preparing 
a notice for publication in the Federal Register. However, we estimate 
that staff time to draft and compile these notices will likely remain 
unchanged and, therefore, do not estimate any changes in burden 
associated with this provision.
    Proposed changes to Sec.  75.720 would allow the Secretary to 
require grantees to publish their annual performance reports on a 
public-facing website. Given that this requirement would apply only to 
a subset of discretionary competitive grant programs and participation 
in such programs is voluntary, we do not estimate any costs associated 
with this proposed change. However, we believe that, to the extent that 
the requirement results in a shift in activities by grantees, it is 
possible that there would be minimal transfers. We estimate that it 
would take a web developer approximately 30 minutes to post a copy of 
the grantee's annual performance report on the website. Assuming that a 
loaded wage rate is $57.05 per hour for web developers, we estimate 
that this requirement could generate approximately $29 per year per 
affected grantee. In FY 2020, the Department made approximately 7,700 
grants. Assuming this requirement would be used in 20 percent of those 
grants, we estimate total transfers of approximately $43,930 per year.
    Proposed changes to Sec.  76.1, which would ensure consistent 
reference to State-administered formula grant programs, are unlikely to 
generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec.  76.50 would clarify that, in the absence 
of a statutory or regulatory prohibition against subgranting, or in the 
absence of a term and condition in the grant award that would prohibit 
subgranting, States, consistent with 2 CFR 200.332, determine whether 
to make subgrants. These proposed changes would likely generate cost 
savings for States associated with the reduced burden associated with 
making subgrants as opposed to contracts. However, we do not have 
sufficient information to quantify this impact and we invite public 
comment on the cost savings associated with such a shift at the State 
level.
    Proposed changes to Sec.  76.101, which would clarify the 
applicability of section 441 of GEPA, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec.  76.102, which would remove a table and 
provide a general definition of the term ``State plan,'' are unlikely 
to generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec.  76.103, which would remove extraneous 
text and simplify the section, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Proposed changes to Sec. Sec.  76.125-76.137, which would remove 
references to the Trust Territory of the Pacific Islands and make other 
changes, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Proposed changes to Sec. Sec.  76.140-76.142, which would, among 
other things, allow the Secretary to prescribe alternative amendment 
processes on a program-by-program basis, could generate benefits for 
both States and the Department. The proposed changes would provide the 
Secretary broad flexibility in prescribing alternative procedures, 
which makes it difficult to assess precisely the specific cost 
reductions that would occur. However, we assume that these alternative 
procedures would result in a net burden reduction of 2 hours for a 
management analyst at the State level and 0.5 hours for an 
administrator at the State level for each State plan revision under the 
ESEA. We further estimate that likely alternative procedures would 
result in a burden reduction of 5 hours for a management analyst and 
0.5 hours for a chief executive at the State level for each State plan 
revision under the Workforce Innovation and Opportunity Act (WIOA). We 
further assume an average of 15 State plan amendments under the ESEA 
and 52 State plan amendments under WIOA each year. In total, we 
estimate that these alternative procedures would reduce costs for 
States by approximately $23,733 per year. We also assume that the 
alternative procedures would reduce burden on Federal staff by 
approximately 1 hour per State plan amendment for a total Federal 
savings of approximately $4,150 per year.
    Proposed changes to Sec.  76.301, which would clarify that section 
442 of GEPA does not apply to LEA subgrantees, would not generate any 
quantifiable costs, and would benefit the Department and the general 
public by improving the clarity of the regulations.
    Proposed changes to Sec.  76.401, which would clarify that a notice 
of appeal must include an allegation of a specific violation of law by 
the SEA, are likely to generate benefits for the Department by reducing 
the number of appeals that fail to state a claim that we receive and

[[Page 2004]]

process each year. On average, we process approximately 10 appeals each 
year, with an attorney spending approximately 30 hours reviewing each 
appeal. We estimate that this provision would reduce the number of 
appeals the Department receives each year by approximately 20 percent, 
resulting in a net savings of 60 hours per year or approximately $5,530 
per year. We also believe that this provision would generate cost 
savings at the State level, but do not have sufficient information on 
the case load at the State level to make a reliable estimate. We invite 
public comment on the potential savings at the State level associated 
with this proposed change.
    Proposed changes to Sec. Sec.  76.560-76.569, which would align 
these sections with the Uniform Guidance and provide additional 
information on the application of indirect cost rates, are unlikely to 
generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec.  76.650 and related sections, which would 
revise regulatory references, are unlikely to generate any quantifiable 
costs and may benefit the Department and general public by improving 
the clarity of the regulations.
    The proposed deletion of Sec.  76.655 as unnecessary is unlikely to 
generate any quantifiable cost and may benefit the Department and 
general public by improving the clarity of the regulations.
    Proposed changes to Sec.  76.783 indicate that a subgrantee may 
request a hearing related to a State educational agency's failure to 
provide funds in amounts in accordance with the requirements of 
applicable statutes and regulations. These proposed changes would not 
generate any additional costs, as this circumstance was previously 
contemplated in Sec.  76.401, which we are proposing to delete.
    Proposed changes to Sec.  77.1(c), which would update existing 
definitions, remove unnecessary definitions, and add new definitions, 
are unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Proposed changes to part 79, which would remove outdated statutory 
references, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Proposed changes to part 299, which would reflect statutory 
changes, are unlikely to generate any quantifiable costs and may 
benefit the Department and the general public by improving the clarity 
of the regulations. The proposed additions of Sec. Sec.  299.16-299.17 
would add specificity as to what an SEA's resolution of a complaint 
must include and what a party's appeal to the Secretary of an SEA 
decision must include. The specific elements named in these sections 
are all things that a legal decision or appeal should already include 
(such as a description of applicable statutory and regulatory 
requirements, legal analysis and conclusions, supporting 
documentation). When the Department receives records on appeal that do 
not include one or more of these elements, we go back to the parties to 
request the missing element(s). Specifying in these sections what we 
need to issue a decision would prevent this unnecessary delay; however, 
we do not think that the specific elements would generate quantifiable 
costs.
    Proposed additions of Sec. Sec.  299.18-299.28 regarding the 
procedures for a bypass in providing equitable services to eligible 
private school children, teachers or other educational personnel, and 
families, as applicable, are unlikely to generate any quantifiable 
costs and may benefit the Department and the general public by 
improving the clarity of the regulations. These sections reflect only 
minor updates to information previously contained in Sec. Sec.  76.670-
76.677, which elsewhere we propose to remove.
    In total, we estimate that these regulations would result in a net 
decrease in costs of approximately $4,014 per year with transfers 
ranging from $109.7 million to $113.8 million per year. Of the net 
benefit, approximately $3,610 would accrue to grantees. The remaining 
approximately $400 in net additional benefits would accrue to the 
Department.
    As noted above, we do not anticipate any meaningful, quantifiable 
impact from the majority of proposed regulatory changes. However, for 
those provisions for which we do estimate impacts, we summarize those 
impacts below using 3 and 7 percent discount rates, consistent with OMB 
Circular A-4:

------------------------------------------------------------------------
                                            3% discount     7% discount
                Provision                      rate            rate
------------------------------------------------------------------------
                                                     Benefits
                                         -------------------------------
Sec.   75.109--Reduce the number of                 $375            $375
 paper copies of an application to be
 submitted..............................
Sec.   76.140-142--Amendments to State            34,940          34,940
 Plan...................................
Sec.   76.401--Disapproval of an                  10,655          10,655
 application............................
                                         -------------------------------
                                                       Costs
                                         -------------------------------
Sec.   75.253--Request for                     ($27,924)       ($27,924)
 Reconsideration........................
                                         -------------------------------
                                                     Transfers
                                         -------------------------------
Sec.   75.590--Independent evaluation...    $113,824,837    $109,706,758
Sec.   75.720--Financial and Performance         $43,500         $43,500
 Reports................................
------------------------------------------------------------------------

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of

[[Page 2005]]

this preamble be more helpful in making the proposed regulations easier 
to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make the 
proposed regulations easier to understand, see the instructions in the 
ADDRESSES section.

Regulatory Flexibility Act Certification

    The Secretary certifies that this proposed regulatory action would 
not have a significant economic impact on a substantial number of small 
entities. The U.S. Small Business Administration Size Standards define 
proprietary institutions as small businesses if they are independently 
owned and operated, are not dominant in their field of operation, and 
have total annual revenue below $7,000,000. Nonprofit institutions are 
defined as small entities if they are independently owned and operated 
and not dominant in their field of operation. Public institutions are 
defined as small organizations if they are operated by a government 
overseeing a population below 50,000.
    Of the impacts we estimate accruing to grantees or eligible 
entities, all are voluntary and related mostly to an increase in the 
number of applications prepared and submitted annually for competitive 
grant competitions. Therefore, we do not believe that these regulations 
present any significant impact on small entities beyond the potential 
for increasing the likelihood of their applying for, and receiving, 
competitive grants from the Department.

Paperwork Reduction Act

    The proposed regulatory action does not contain any information 
collection requirements. However, we do anticipate that the proposed 
changes to Sec. Sec.  76.140-76.142 would reduce State burden under 
existing information collection requirements by approximately 323.5 
hours per year (see the Discussion of Costs, Benefits, and Transfers 
for more information on this estimate). The valid OMB control number 
for that information collection is 1810-0576.

Intergovernmental Review

    These programs are subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for these programs.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. 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

34 CFR Part 75

    Accounting; Copyright; Education; Grant programs--education; 
Incorporation by reference; Indemnity payments; Inventions and patents; 
Private schools; Reporting and recordkeeping requirements; Youth 
organizations.

34 CFR Part 76

    Accounting; Administrative practice and procedure; American Samoa; 
Education; Grant programs--education; Guam; Northern Mariana Islands; 
Pacific Islands Trust Territory; Prisons; Private schools; Reporting 
and recordkeeping requirements; Virgin Islands; Youth organizations.

34 CFR Part 77

    Education; Grant programs--education; Incorporation by reference.

34 CFR Part 79

    Intergovernmental relations.

34 CFR Part 299

    Administrative practice and procedure; Elementary and secondary 
education; Grant programs--education; Private schools; Reporting and 
recordkeeping requirements.

Miguel A. Cardona,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend parts 75, 76, 77, 79, and 299 of title 34 of the Code of 
Federal Regulations as follows:

PART 75--DIRECT GRANT PROGRAMS

0
1. The authority citation for part 75 is revised to read as follows:

    Authority:  20 U.S.C. 1221e-3 and 3474, unless otherwise noted.

    Section 75.263; 2 CFR 200.308(d)(1).
    Section 75.617, 31 U.S.C. 3504, 3505.
    Section 75.740 also issued under 20 U.S.C. 1232g and 1232h.

0
2. Revise Sec.  75.1 to read as follows:


Sec.  75.1  Programs to which part 75 applies.

    (a) General. (1) The regulations in this part apply to each direct 
grant program of the Department of Education, except as specified in 
these regulations for direct formula grant programs, as referenced in 
paragraph (c)(3) of this section.
    (2) The Department administers two kinds of direct grant programs. 
A direct grant program is either a discretionary grant program or a 
formula grant program other than a State-administered formula grant 
program covered by 34 CFR part 76.
    (3) If a direct grant program does not have implementing 
regulations, the Secretary implements the program under the applicable 
statutes and regulations and, to the extent consistent with the 
applicable statutes and regulations, under the General Education 
Provisions Act and the regulations in this part. With respect to the 
Impact Aid Program (Title VII of the Elementary and Secondary Education 
Act of 1965), see 34 CFR 222.19 for the limited applicable regulations 
in this part.
    (b) Discretionary grant programs. A discretionary grant program is 
one that permits the Secretary to use discretionary judgment in 
selecting applications for funding.
    (c) Formula grant programs. (1) A formula grant program is one that 
entitles certain applicants to receive grants if they meet the 
requirements of the program. Applicants do not compete with each other 
for the funds, and each grant is either for a set amount or for an 
amount determined under a formula.
    (2) The Secretary applies the applicable statutes and regulations 
to

[[Page 2006]]

fund projects under a formula grant program.
    (3) For specific regulations in this part that apply to the 
selection procedures and grant-making processes for direct formula 
grant programs, see Sec. Sec.  75.215 and 75.230.

    Note 1 to Sec.  75.1: See 34 CFR part 76 for the general 
regulations that apply to programs that allocate funds by formula 
among eligible States.

Sec.  75.4  [Removed and Reserved]

0
3. Remove and reserve Sec.  75.4.


Sec.  75.50  [Amended]

0
4. Amend Sec.  75.50 in paragraph (a) by removing the words ``the 
authorizing statute'' and adding in their place the words ``applicable 
statutes and regulations''.


Sec.  75.51  [Amended]

0
5. Amend Sec.  75.51 in paragraph (a) by removing the parenthetical 
sentence ``(See the definition of nonprofit in 34 CFR 77.1.)''.
0
6. Revise Sec.  75.60 to read as follows:


Sec.  75.60  Individuals ineligible to receive assistance.

    An individual is ineligible to receive a fellowship, scholarship, 
or discretionary grant funded by the Department if the individual--
    (a) Is not current in repaying a debt or is in default, as that 
term is used in 34 CFR part 668, on a debt--
    (1) Under a program administered by the Department under which an 
individual received a fellowship, scholarship, or loan that they are 
obligated to repay; or
    (2) To the Federal Government under a nonprocurement transaction; 
and
    (b) Has not made satisfactory arrangements to repay the debt.


Sec.  75.61  [Amended]

0
7. Amend section 75.61 by:
0
a. In paragraph (a)(2), removing the words ``section 5301 of the Anti-
Drug Abuse Act of 1988 (21 U.S.C. 853a)'' and adding in their place the 
words ``section 421 of the Controlled Substances Act (21 U.S.C. 862)''; 
and
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  75.62  [Amended]

0
8. Amend Sec.  75.62 by:
0
a. In paragraph (a)(2), removing the words ``section 5301 of the Anti-
Drug Abuse Act of 1988 (21 U.S.C. 853a)'' and adding, in their place, 
the words ``section 421 of the Controlled Substances Act (21 U.S.C. 
862)''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
9. Amend Sec.  75.101 by:
0
a. Revising paragraph (a)(1);
0
b. Adding the period after ``assistance?)'' in paragraph (a)(7);
0
c. Removing paragraphs (a)(1)(i) and (ii); and
0
d. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  75.101  Information in the application notice that helps an 
applicant apply.

    (a) * * *
    (1) How an applicant can obtain an application package.
* * * * *


Sec.  75.102  [Amended]

0
10. Amend Sec.  75.102 by removing and reserving paragraph (b) and 
removing the parenthetical authority citation at the end of the 
section.


Sec.  75.103  [Amended]

0
11. Amend Sec.  75.103 by:
0
a. Removing in paragraph (b) the citation ``Sec.  75.102(b) and (d)'' 
and adding in its place the citation ``Sec.  75.102(d)''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
12. Amend Sec.  75.104 by:
0
a. Revising the section heading;
0
b. Adding paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision and addition read as follows.


Sec.  75.104  Additional application provisions.

* * * * *
    (c) If an applicant wants a new grant, the applicant must submit an 
application in accordance with the requirements in the application 
notice.
0
13. Amend Sec.  75.105 by:
0
a. Revising the section heading;
0
b. In paragraph (b)(2)(i), removing the words ``by inviting 
applications that meet the priorities'' and adding in their place the 
words ``through invitational priorities'';
0
c. In paragraph (b)(2)(iii), removing the words ``seriously interfere 
with an orderly, responsible grant award process or would otherwise'';
0
d. In paragraph (b)(2)(iv), removing the word ``or'' after the 
semicolon;
0
e. In paragraph (b)(2)(v), removing the period and adding in its place 
``; or'';
0
f. Adding paragraph (b)(2)(vi);
0
g. Removing the words ``high quality'' in paragraph (c)(3) and adding 
in their place the words ``high-quality''; and
0
h. Removing the parenthetical authority citation at the end of the 
section.
    The revision and addition read as follows:


Sec.  75.105  Annual absolute, competitive preference, and invitational 
priorities.

* * * * *
    (b) * * *
    (2) * * *
    (vi) The final annual priorities are developed under the exemption 
from rulemaking for the first grant competition under a new or 
substantially revised program authority pursuant to section 437(d)(1) 
of GEPA, 20 U.S.C. 1232(d)(1), or an exemption from rulemaking under 
section 681(d) of the Individuals with Disabilities Education Act, 20 
U.S.C. 1481(d), section 191 of the Education Sciences Reform Act, 20 
U.S.C. 9581, or any other applicable exemption from rulemaking.
* * * * *
0
14. Revise Sec.  75.109 to read as follows:


Sec.  75.109  Changes to applications.

    An applicant may make changes to its application on or before the 
deadline date for submitting the application under the program.
0
15. Amend Sec.  75.110 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) and (c) as paragraphs (c) and (b), 
respectively;
0
c. In newly redesignated paragraph (b) introductory text, adding the 
word ``program'' before the words ``performance measurement'';
0
d. Revising newly redesignated paragraphs (b)(1)(ii) and (b)(2);
0
e. Revising newly redesignated paragraphs (c)(1) and (c)(2)(i); and
0
f. Removing the parenthetical authority citation at the end of the 
section.
    The revisions read as follows:


Sec.  75.110  Information regarding performance measurement.

    (a) The Secretary may establish, in an application notice for a 
competition, one or more program performance measurement requirements, 
including requirements for performance measures, baseline data, or 
performance targets, and a requirement that applicants propose in their 
applications one or more of their own project-specific performance 
measures, baseline data, or performance targets and ensure that the 
applicant's project-specific performance measurement plan would, if 
well implemented, yield quality data.
    (b) * * *
    (1) * * *
    (ii) If the Secretary requires applicants to collect data after the 
substantive work

[[Page 2007]]

of a project is complete in order to measure progress toward attaining 
certain performance targets, the data-collection and reporting methods 
the applicant would use during the post-performance period and why 
those methods are likely to yield quality data.
    (2) The applicant's capacity to collect and report the quality of 
the performance data, as evidenced by quality data collection, 
analysis, and reporting in other projects or research.
    (c) * * *
    (1) Project-specific performance measures. How each proposed 
project-specific performance measure would: accurately measure the 
performance of the project; be consistent with the program performance 
measures established under paragraph (a) of this section; and be used 
to inform continuous improvement of the project.
    (2) * * *
    (i) Why each proposed baseline is valid and reliable, including an 
assessment of the quality data used to establish the baseline; or
* * * * *
0
16. Amend Sec.  75.112 by:
0
a. Revising the section heading;
0
b. Adding paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision and addition read as follows:


Sec.  75.112  Include a proposed project period, a timeline, and a 
logic model.

* * * * *
    (c) The Secretary may establish, in an application notice, a 
requirement to include a logic model.


Sec.  75.117  [Amended]

0
17. Amend Sec.  75.117 in paragraph (a) by adding ``and'' after the 
semicolon.


Sec.  75.118  [Amended]

0
18. Amend Sec.  75.118 by:
0
a. In paragraph (a), removing ``2 CFR 200.327 and 200.328'' and adding 
in its place ``2 CFR 200.328 and 200.329''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
19. Revise Sec.  75.119 to read as follows:


Sec.  75.119  Information needed if private school children 
participate.

    If a program provides for participation of students enrolled in 
private schools and, as applicable, their teachers or other educational 
personnel, and their families, the application must include a 
description of how the applicant will meet the requirements under 
Sec. Sec.  299.7-299.11.
0
20. Amend Sec.  75.127 by:
0
a. Redesignating paragraphs (b)(3) and (4) as paragraphs (b)(4) and 
(5), respectively;
0
b. Adding new paragraph (b)(3) and paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The additions read as follows:


Sec.  75.127  Eligible parties may apply as a group.

* * * * *
    (b) * * *
    (3) Partnership.
* * * * *
    (c) In the case of a group application submitted in accordance with 
Sec. Sec.  75.127 through 75.129, all parties in the group must be 
eligible applicants under the competition.


Sec.  75.135  [Amended]

0
21. Amend Sec.  75.135 by:
0
a. In paragraph (a) introductory text, removing the citation ``2 CFR 
200.320(c) and (d)'' and adding in its place the citation ``2 CFR 
200.320(b)''; and
0
b. In paragraph (b) introductory text, removing the citation ``2 CFR 
200.320(b)'' and adding in its place the citation ``2 CFR 200.320(a)''.


Sec.  75.155  [Amended]

0
22. Amend Sec.  75.155 by removing the words ``the authorizing statue 
requires'' and adding in their place the words ``applicable statutes 
and regulations require''.


Sec.  75.157  [Amended]

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


Sec.  75.158  [Amended]

0
24. Amend Sec.  75.158 by:
0
a. In paragraph (c), removing the citation ``Sec.  75.102(b) and (d)'' 
and adding in its place the citation ``Sec.  75.102(d)''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.


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

0
25. Remove the undesignated section heading before Sec.  75.190, and 
remove and reserve Sec. Sec.  75.190 through 75.192.
0
26-27. Revise the undesignated center heading before Sec.  75.200 and 
revise Sec.  75.200 to read as follows:

Selection of New Discretionary Grant Projects


Sec.  75.200  How applications for new discretionary grants and 
cooperative agreements are selected for funding; standards for use of 
cooperative agreements.

    (a) The Secretary uses selection criteria to evaluate the 
applications submitted for new grants under a discretionary grant 
program.
    (b) To evaluate the applications for new grants under the program, 
the Secretary may use--
    (1) Selection criteria established under Sec.  75.209;
    (2) Selection criteria in Sec.  75.210; or
    (3) Any combination of criteria from paragraphs (b)(1) and (b)(2) 
of this section.
    (c)(1) The Secretary may award a cooperative agreement instead of a 
grant if the Secretary determines that substantial involvement between 
the Department and the recipient is necessary to carry out a 
collaborative project.
    (2) The Secretary uses the selection procedures in this subpart to 
select recipients of cooperative agreements.


Sec.  75.201  [Amended]

0
28. Amend Sec.  75.201 by:
0
a. In paragraph (b), adding the words ``or factors'' after the words 
``selection criteria'';
0
b. In paragraph (c), removing the word ``and'' between the words 
``selection criteria'' and ``selected factors'' and adding in its place 
the word ``or''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.


Sec.  75.209  [Amended]

0
29. Amend Sec.  75.209 by:
0
a. In the introductory text, adding a comma immediately after ``limited 
to''; and
0
b. In paragraph (c), removing the words ``the program statute or 
regulations'' and adding in their place the words ``applicable statutes 
and regulations''.
0
30. Revise Sec.  75.210 to read as follows:


Sec.  75.210  General selection criteria.

    In determining the selection criteria to evaluate applications 
submitted in a grant competition, the Secretary may select one or more 
of the following criteria and may select from among the list of 
optional factors under each criterion. The Secretary may define a 
selection criterion by selecting one or more specific factors within a 
criterion or assigning factors from one criterion to another criterion.

[[Page 2008]]

    (a) Need for the project. (1) The Secretary considers the need for 
the proposed project.
    (2) In determining the need for the proposed project, the Secretary 
considers one or more of the following factors:
    (i) The data presented (including a comparison to local, State, 
regional, national, or international data) that demonstrates the issue, 
challenge, or opportunity to be addressed by the proposed project.
    (ii) The extent to which the proposed project demonstrates the 
magnitude of the need for the services to be provided or the activities 
to be carried out by the proposed project.
    (iii) The extent to which the proposed project will provide 
support, resources, or services; close gaps in educational opportunity; 
or otherwise address the needs of the targeted population, including 
addressing the needs of underserved populations most affected by the 
issue, challenge, or opportunity to be addressed by the proposed 
project.
    (iv) The extent to which the proposed project will focus on serving 
or otherwise addressing the needs of underserved populations.
    (v) The extent to which the specific nature and magnitude of gaps 
or challenges are identified and the extent to which these gaps or 
challenges will be addressed by the services, supports, infrastructure, 
or opportunities described in the proposed project.
    (vi) The extent to which the proposed project will prepare 
individuals from underserved populations for employment in fields and 
careers in which there are demonstrated shortages.
    (b) Significance. (1) The Secretary considers the significance of 
the proposed project.
    (2) In determining the significance of the proposed project, the 
Secretary considers one or more of the following factors:
    (i) The extent to which the proposed project is relevant at the 
national level.
    (ii) The significance of the problem or issue as it affects 
educational access and opportunity, including the underlying or related 
challenges for underserved populations.
    (iii) The extent to which findings from the project's 
implementation will contribute new knowledge to the field by increasing 
knowledge or understanding of, including the underlying or related 
challenges, effective strategies for addressing educational challenges 
and their effective implementation.
    (iv) The potential contribution of the proposed project to improve 
the provision of rehabilitative services, increase the number or 
quality of rehabilitation counselors, or develop and implement 
effective strategies for providing vocational rehabilitation services 
to individuals with disabilities.
    (v) The likelihood that the proposed project will result in 
systemic change that supports continuous and sustainable improvement.
    (vi) The potential contribution of the proposed project to the 
development and advancement of theory, knowledge, and practices in the 
field of study, including the extent to which the contributions may be 
used by other appropriate agencies, organizations, or institutions.
    (vii) The potential for generalizing from the findings or results 
of the proposed project.
    (viii) The extent to which the proposed project is likely to build 
local, State, or national capacity to provide, improve, sustain, or 
expand training or services that address the needs of underserved 
populations.
    (ix) The extent to which the proposed project involves the 
development or demonstration of innovative and effective strategies 
that build on, or are alternatives to, existing strategies.
    (x) The extent to which the proposed project is innovative and 
likely to be effective compared to other efforts to address a similar 
problem.
    (xi) The likely utility of the resources (such as materials, 
processes, or techniques) that will result from the proposed project, 
including the potential for effective use in a variety of conditions, 
populations, or settings.
    (xii) The extent to which the resources, tools, and implementation 
lessons of the proposed project will be disseminated in ways to the 
targeted population and local community that will enable them and 
others (including practitioners, researchers, education leaders, and 
partners) to implement similar strategies.
    (xiii) The potential effective replicability of the proposed 
project or strategies, including, as appropriate, the potential for 
implementation by a variety of populations or settings.
    (xiv) The importance or magnitude of the results or outcomes likely 
to be attained by the proposed project, especially contributions toward 
improving teaching practice and student learning and achievement.
    (xv) The importance or magnitude of the results or outcomes likely 
to be attained by the proposed project, especially improvements in 
employment, independent living services, or both, as appropriate.
    (xvi) The importance or magnitude of the results or outcomes likely 
to be attained by the proposed project that demonstrate the impact of 
the proposed project for the targeted underserved populations in terms 
of breadth and depth of services.
    (xvii) The extent to which the proposed project introduces an 
innovative approach, such as a modification of an evidence-based 
project component to serve different populations, an extension of an 
existing evidence-based project component, a unique composition of 
various project components to explore combined effects, or an emerging 
project component that needs further testing.
    (c) Quality of the project design. (1) The Secretary considers the 
quality of the design of the proposed project.
    (2) In determining the quality of the design of the proposed 
project, the Secretary considers one or more of the following factors:
    (i) The extent to which the goals, objectives, and outcomes to be 
achieved by the proposed project are clearly specified, measurable, and 
ambitious yet achievable within the project period, and aligned with 
the purposes of the grant program.
    (ii) The extent to which the design of the proposed project 
demonstrates community engagement and input to ensure that the project 
is appropriate to successfully address the needs of the target 
population or other identified needs and will be used to inform 
continuous improvement strategies.
    (iii) The quality of the conceptual framework, such as a logic 
model, underlying the proposed project, including how inputs are 
related to outcomes.
    (iv) The extent to which the proposed project's logic model was 
developed based on engagement of a broad range of community members and 
partners.
    (v) The extent to which the proposed project proposes specific, 
measurable targets, connected to strategies, activities, resources, 
outputs, and outcomes.
    (vi) The extent to which the design of the proposed project 
includes a thorough, high-quality review of the relevant literature, a 
high-quality plan for project implementation, and the use of 
appropriate methodological tools to enable successful achievement of 
project objectives.
    (vii) The quality of the proposed demonstration design, such as 
qualitative and quantitative design, and procedures for documenting 
project activities and results for underserved populations.
    (viii) The extent to which the design for implementing and 
evaluating the proposed project will result in

[[Page 2009]]

information to guide possible replication of project activities or 
strategies, including valid and reliable information about the 
effectiveness of the approach or strategies employed by the project.
    (ix) The extent to which the proposed development efforts include 
adequate quality controls, continuous improvement efforts, and, as 
appropriate, repeated testing of products.
    (x) The extent to which the proposed project demonstrates that it 
is designed to build capacity and yield sustainable results that will 
extend beyond the project period.
    (xi) The extent to which the design of the proposed project 
reflects the most recent and relevant knowledge and practices from 
research and effective practice.
    (xii) The extent to which the proposed project represents an 
exceptional approach for meeting program purposes and requirements and 
serving the target population.
    (xiii) The extent to which the proposed project represents an 
exceptional approach to any absolute priority or absolute priorities 
established for the competition.
    (xiv) The extent to which the proposed project will integrate or 
build on ideas, strategies, and efforts from similar external projects 
to improve relevant outcomes, using existing funding streams from other 
programs or policies supported by community, State, and Federal 
resources.
    (xv) The extent to which the proposed project is informed by 
similar past projects implemented by the applicant with demonstrated 
results.
    (xvi) The extent to which the proposed project will include 
coordination with other Federal investments, as well as appropriate 
agencies and organizations providing similar services to the target 
population.
    (xvii) The extent to which the proposed project is part of a 
comprehensive effort to improve teaching and learning and support 
rigorous academic standards and increased social, emotional, and 
educational development for students, including members of underserved 
populations.
    (xviii) The extent to which the proposed project encourages 
explicit plans for authentic, meaningful, and ongoing community member 
and partner engagement, including their involvement in planning, 
implementing, and revising project activities for underserved 
populations.
    (xix) The extent to which the proposed project encourages consumer 
involvement.
    (xx) The extent to which performance feedback and formative data 
are integral to the design of the proposed project and will be used to 
inform continuous improvement.
    (xxi) The extent to which fellowship recipients or other project 
participants are to be selected on the basis of academic excellence.
    (xxii) The extent to which the applicant demonstrates that it has 
the resources to operate the project beyond the project period, 
including a multiyear financial and operating model and accompanying 
plan; the demonstrated commitment of any partners; demonstration of 
broad support from community members and partners (such as State 
educational agencies, teachers' unions, families, business and 
industry, community members, and State vocational rehabilitation 
agencies) that are critical to the project's long-term success; or 
capacity-building leveraged from more than one of these types of 
resources.
    (xxiii) The potential and planning for the incorporation of project 
purposes, activities, or benefits into the ongoing work of the 
applicant beyond the end of the project period.
    (xxiv) The extent to which the proposed project will increase 
efficiency in the use of time, staff, money, or other resources in 
order to improve results and increase productivity.
    (xxv) The extent to which the proposed project will integrate with, 
or build on, similar or related efforts in order to improve relevant 
outcomes, using nonpublic funds or resources.
    (xxvi) The extent to which the proposed project demonstrates a 
rationale that is aligned with the purposes of the grant program.
    (xxvii) The extent to which the proposed project represents 
implementation of the evidence cited in support of the proposed project 
with fidelity.
    (xxiii) The extent to which the applicant plans to allocate a 
significant portion of its requested funding to the evidence-based 
project components.
    (xxix) The strength of the commitment from key decision-makers at 
proposed implementation sites.
    (d) Quality of project services. (1) The Secretary considers the 
quality of the services to be provided by the proposed project.
    (2) In determining the quality of the services to be provided by 
the proposed project, the Secretary considers the quality and 
sufficiency of strategies for ensuring equitable and adequate access 
and participation for project participants who experience barriers 
based on one or more of the following: economic disadvantage; gender; 
race; ethnicity; color; national origin; disability; age; language; 
migration; living in a rural location; experiencing homelessness or 
housing insecurity; involvement with the justice system; pregnancy, 
parenting, or caregiver status; and sexual orientation. This 
determination includes the steps developed and described in the form 
Equity For Students, Teachers, And Other Program Beneficiaries (OMB 
Control No. 1894-0005) (section 427 of the General Education Provisions 
Act (20 U.S.C. 1228a)).
    (3) In addition, the Secretary considers one or more of the 
following factors:
    (i) The extent to which the services to be provided by the proposed 
project were determined with input from the community to be served to 
ensure that they are appropriate to the needs of the intended 
recipients or beneficiaries, including underserved populations, of 
those services.
    (ii) The extent to which the proposed project is supported by 
entities that it is intended to serve.
    (iii) The extent to which the services to be provided by the 
proposed project reflect up-to-date knowledge and an evidence-based 
project component.
    (iv) The likely benefit to the intended recipients, as indicated by 
the logic model, of the services to be provided.
    (v) The extent to which the training or professional development 
services to be provided by the proposed project are of sufficient 
quality, intensity, and duration to build recipient and project 
capacity in ways that lead to improvements in practice among the 
recipients of those services.
    (vi) The extent to which the services to be provided by the 
proposed project are likely to provide long-term solutions to alleviate 
the personnel shortages that have been identified or are the focus of 
the proposed project.
    (vii) The likelihood that the services to be provided by the 
proposed project will lead to meaningful improvements in the 
achievement of students as measured against rigorous and relevant 
standards.
    (viii) The likelihood that the services to be provided by the 
proposed project will lead to meaningful improvements in early 
childhood and family outcomes.
    (ix) The likelihood that the services to be provided by the 
proposed project will lead to meaningful improvements in the skills and 
competencies necessary to gain employment in high-quality jobs,

[[Page 2010]]

careers, and industries or build capacity for independent living.
    (x) The extent to which the services to be provided by the proposed 
project involve the collaboration of appropriate partners, including 
those from underserved populations, for maximizing the effectiveness of 
project services.
    (xi) The extent to which the services to be provided by the 
proposed project involve the use of efficient strategies, including the 
use of technology, as appropriate, and the leveraging of non-project 
resources.
    (xii) The extent to which the services to be provided by the 
proposed project are focused on recipients, community members, or 
project participants that are most underserved as demonstrated by the 
data relevant to the project.
    (e) Quality of the project personnel. (1) The Secretary considers 
the quality of the personnel who will carry out the proposed project.
    (2) In determining the quality of project personnel, the Secretary 
considers the extent to which the applicant demonstrates that it has 
project personnel or a plan for hiring of personnel who are members of 
groups that have historically encountered barriers, or who have 
professional or personal experiences with barriers, based on one or 
more of the following: economic disadvantage; gender; race; ethnicity; 
color; national origin; disability; age; language; migration; living in 
a rural location; experiencing homelessness or housing insecurity; 
involvement with the justice system; pregnancy, parenting, or caregiver 
status; and sexual orientation.
    (3) In addition, the Secretary considers one or more of the 
following factors:
    (i) The qualifications required of the project director or 
principal investigator, including formal training or work experience in 
fields related to the objectives of the project and experience in 
designing, managing, or implementing similar projects for the target 
population to be served by the project.
    (ii) The qualifications required of each of the key personnel in 
the project, including formal training or work experience in fields 
related to the objectives of the project and be a representative of the 
target population.
    (iii) The qualifications, including relevant training and 
experience, of project consultants or subcontractors.
    (iv) The extent to which the proposed project team reflects the 
demographics of project participants to maximize inclusion of diverse 
perspectives.
    (v) The extent to which the proposed planning, implementing, and 
evaluating project team are familiar with the assets, needs, and other 
contextual considerations of the proposed implementation sites.
    (f) Adequacy of resources. (1) The Secretary considers the adequacy 
of resources for the proposed project.
    (2) In determining the adequacy of resources for the proposed 
project, the Secretary considers one or more of the following factors:
    (i) The adequacy of support for the project, including facilities, 
equipment, supplies, and other resources, from the applicant 
organization or the lead applicant organization.
    (ii) The relevance and demonstrated commitment of each partner in 
the proposed project to the implementation and success of the project.
    (iii) The extent to which the budget is adequate to support the 
proposed project and the costs are reasonable in relation to the 
objectives, design, and potential significance of the proposed project.
    (iv) The extent to which the costs are reasonable in relation to 
the number of persons to be served, the depth and intensity of 
services, and the anticipated results and benefits.
    (v) The extent to which the costs of the program are reasonable for 
potential entities to adopt.
    (vi) The level of initial matching funds or other commitment from 
partners, indicating the likelihood for potential continued support of 
the project after Federal funding ends.
    (vii) The potential for the purposes, activities, or benefits of 
the proposed project to be institutionalized into the ongoing practices 
and programs of the institution, agency, or organization and continue 
after the end date of Federal funding.
    (g) Quality of the management plan. (1) The Secretary considers the 
quality of the management plan for the proposed project.
    (2) In determining the quality of the management plan for the 
proposed project, the Secretary considers one or more of the following 
factors:
    (i) The feasibility of the management plan to achieve project 
objectives and goals on time and within budget, including clearly 
defined responsibilities, timelines, and milestones for accomplishing 
project tasks.
    (ii) The adequacy of plans for ensuring the use of quantitative and 
qualitative data, including community member and partner input, to 
inform continuous improvement in the operation of the proposed project.
    (iii) The adequacy of mechanisms for ensuring high-quality and 
accessible products and services from the proposed project for the 
target population.
    (iv) The extent to which the time commitments of the project 
director and principal investigator and other key project personnel are 
appropriate and adequate to meet the objectives of the proposed 
project.
    (v) How the applicant will ensure that a diversity of perspectives, 
including those from underserved populations, are brought to bear in 
the design, implementation, operation, evaluation, and improvement of 
the proposed project, including those of parents, educators, community-
based organizations, civil rights organizations, the business 
community, a variety of disciplinary and professional fields, 
recipients or beneficiaries of services, or others, as appropriate.
    (h) Quality of the project evaluation or other evidence-building. 
(1) The Secretary considers the quality of the evaluation or other 
evidence-building of the proposed project.
    (2) In determining the quality of the evaluation or other evidence-
building, the Secretary considers one or more of the following factors:
    (i) The extent to which the methods of evaluation or other 
evidence-building are thorough, feasible, relevant, and appropriate to 
the goals, objectives, and outcomes of the proposed project.
    (ii) The extent to which the methods of evaluation or other 
evidence-building are appropriate to the context within which the 
project operates and the target population of the proposed project.
    (iii) The extent to which the methods of evaluation or other 
evidence-building provide for describing the fidelity of implementation 
of the project.
    (iv) The extent to which the methods of evaluation or other 
evidence-building include the use of objective performance measures 
that are clearly related to the intended outcomes of the project and 
will produce quality data that are quantitative and qualitative.
    (v) The extent to which the methods of the evaluation or other 
evidence-building will provide guidance for quality assurance and 
continuous improvement.
    (vi) The extent to which the methods of evaluation or other 
evidence-building will provide performance feedback and provide 
formative or interim data that is a periodic assessment of progress 
toward achieving intended outcomes.
    (vii) The extent to which the evaluation will provide guidance 
about effective strategies suitable for

[[Page 2011]]

replication or testing and potential implementation in other settings.
    (viii) The extent to which the methods of evaluation will, if well 
implemented, produce evidence about the effectiveness of the project on 
relevant outcomes that would meet the What Works Clearinghouse 
standards without reservations, as described in the What Works 
Clearinghouse Handbooks.
    (ix) The extent to which the methods of evaluation will, if well 
implemented, produce evidence about the effectiveness of the project on 
relevant outcomes that would meet the What Works Clearinghouse 
standards with or without reservations, as described in the What Works 
Clearinghouse Handbooks.
    (x) The extent to which the methods of evaluation include an 
experimental study, a quasi-experimental design study, or a 
correlational study with statistical controls for selection bias (such 
as regression methods to account for differences between a treatment 
group and a comparison group) to assess the effectiveness of the 
project on relevant outcomes.
    (xi) The extent to which the evaluation plan employs an appropriate 
analytic strategy to build evidence about the relationship between key 
project components, mediators, and outcomes for the purpose of 
informing specific actions on which elements to continue, revise, or 
dissolve.
    (xii) The quality of the evaluation plan for measuring fidelity of 
implementation, including thresholds for acceptable implementation, to 
inform how implementation is associated with outcomes.
    (xiii) The extent to which the evaluation plan includes a 
dissemination strategy that is likely to promote others' learning from 
the project.
    (xiv) The qualifications, including relevant training, experience, 
and independence, of the evaluator, including experience conducting 
evaluations of similar methodology as proposed, familiar with 
evaluations for the proposed population and setting.
    (xv) The extent to which the proposed project plan includes 
sufficient resources to conduct the project evaluation effectively.
    (i) Strategy to scale. (1) The Secretary considers the applicant's 
strategy to effectively scale, including to underserved populations, 
the proposed project.
    (2) In determining the applicant's capacity to effectively scale 
the proposed project for recipients and community members and partners, 
including those from underserved populations, the Secretary considers 
one or more of the following factors:
    (i) The quality of the strategies to reach scale by expanding the 
project to new populations or settings.
    (ii) The applicant's capacity (such as qualified personnel, 
financial resources, or management capacity), including project 
partners, to bring the proposed project effectively to scale on a 
national or regional level working directly, or through partners, 
during the grant period.
    (iii) The applicant's capacity (such as qualified personnel, 
financial resources, or management capacity) to further develop and 
bring the proposed project to scale on a regional level working 
directly, or through partners, during the grant period, based on the 
findings of the proposed project.
    (iv) The mechanisms the applicant will use to broadly disseminate 
information and resources on its project to support further 
development, adaptation, or replication by other entities to implement 
project components in additional settings or with other populations.
    (v) The extent to which there is unmet demand for broader 
implementation of the project that is aligned with the proposed level 
of scale.
    (vi) The extent to which there is a market of potential entities 
that will commit resources toward implementation.
    (vii) The quality of the strategies to scale that take into account 
previous barriers to being able to expand the proposed project.
    (viii) The quality of the plan to deliver project services more 
efficiently at scale and maintain effectiveness.
    (ix) The quality of the plan to develop revenue sources that will 
make the program self-sustaining.
0
31. Revise Sec.  75.215 to read as follows:


Sec.  75.215  How the Department selects a new project.

    Sections 75.216 through 75.222 describe the process the Secretary 
uses to select applications for new grants. All these sections apply to 
a discretionary grant program. However, only Sec.  75.216 applies also 
to a formula grant program.(See Sec.  75.1(b) Discretionary grant 
programs, Sec.  75.1(c) Formula grant programs, and Sec.  75.200, How 
applications for new discretionary grants and cooperative agreements 
are selected for funding; standards for use of cooperative agreements.)
0
32. Revise Sec.  75.216 to read as follows:


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

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


Sec.  75.217  [Amended]

0
33. Amend Sec.  75.217 by:
0
a. In paragraph (a), removing the words ``the authorizing statute'' and 
adding in their place the words ``applicable statutes and 
regulations'';
0
b. In paragraph (c), removing the word ``solely'' and adding the words 
``and any competitive preference points'' after the words ``selection 
criteria''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
0
34. Amend Sec.  75.219 by:
0
a. Revising paragraph (b); and
0
b. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


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

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


Sec.  75.220  [Amended]

0
35. Amend Sec.  75.220 by:
0
a. In paragraph (b)(2), removing the words ``Office of the Chief 
Financial Officer (OCFO)'' and adding, in their place, the words 
``Office of Finance and Operations (OFO)''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
36. Revise Sec.  75.221 to read as follows:


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

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


Sec.  75.222  [Amended]

0
37. Amend Sec.  75.222 by:
0
a. In paragraph (a)(1), removing the word ``under'' before ``which 
funds'' and adding in its place the word ``for'';

[[Page 2012]]

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


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

* * * * *

    Note 1 to Sec.  75.222:  To assure prompt consideration, an 
applicant submitting an unsolicited application should send the 
application, marked ``Unsolicited Application'' on the outside, to 
U.S. Department of Education, OFO/G5 Functional Application Team, 
Mail Stop 5C231, 400 Maryland Avenue SW, Washington, DC 20202-4260.


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


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

    (a) If the Secretary determines that special consideration of new 
potential grantees is appropriate, the Secretary may establish a 
separate competition under the procedures in Sec.  75.105(c)(3), or 
provide competitive preference under the procedures in Sec.  
75.105(c)(2).
    (b) As used in this section, ``new potential grantee'' means an 
applicant that meets one or more of the following conditions--
    (1) The applicant has never received a grant or cooperative 
agreement, including through membership in a group application 
submitted in accordance with Sec. Sec.  75.127 through 75.129 that 
received a grant or cooperative agreement, under the program from which 
it seeks funds;
    (2) The applicant does not, as of the deadline date for submission 
of applications, have an active grant or cooperative agreement, 
including through membership in a group application submitted in 
accordance with Sec. Sec.  75.127 through 75.129 that has an active 
grant or cooperative agreement, under the program from which it seeks 
funds;
    (3) The applicant has not had an active discretionary grant or 
cooperative agreement under the program from which it seeks funds, 
including through membership in a group application submitted in 
accordance with Sec. Sec.  75.127 through 75.129, within one of the 
following number of years before the deadline date for submission of 
applications under the program:
    (i) 1 year;
    (ii) 2 years;
    (iii) 3 years;
    (iv) 4 years;
    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years;
    (4) The applicant has not had an active discretionary grant or 
cooperative agreement from the Department, including through membership 
in a group application submitted in accordance with Sec. Sec.  75.127 
through 75.129, within one of the following number of years before the 
deadline date for submission of applications under the program from 
which it seeks funds:
    (i) 1 year;
    (ii) 2 years;
    (iii) 3 years;
    (iv) 4 years;
    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years;
    (5) The applicant has not had an active contract from the 
Department within one of the following number of years before the 
deadline date for submission of applications under the program for 
which it seeks funds:
    (i) 1 year;
    (ii) 2 years;
    (iii) 3 years;
    (iv) 4 years;
    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years; or
    (6) Any combination of paragraphs (b)(1) through (5) of this 
section.
    (c) If the Secretary determines that special consideration of 
applications from new potential grantees is appropriate and chooses, 
under the procedures in Sec.  75.105(c)(3), to establish a separate 
competition for those applicants that meet one or more of the 
conditions in paragraph (b) of this section, the Secretary may also 
establish a separate competition for applications that do not meet such 
priority under the procedures in Sec.  75.105(c)(3) and consider those 
applications separately.
    (d) As used in this section, an ``application from a grantee that 
is not a new potential grantee'' means an applicant that meets one or 
more of the following conditions--
    (1) The applicant has received a grant or cooperative agreement, 
including through membership in a group application submitted in 
accordance with Sec. Sec.  75.127 through 75.129 that received a grant 
or cooperative agreement, under the program from which it seeks funds;
    (2) The applicant has, as of the deadline date for submission of 
applications, an active grant or cooperative agreement, including 
through membership in a group application submitted in accordance with 
Sec. Sec.  75.127 through 75.129 that has an active grant or 
cooperative agreement, under the program from which it seeks funds;
    (3) The applicant has had an active discretionary grant or 
cooperative agreement under the program from which it seeks funds, 
including through membership in a group application submitted in 
accordance with Sec. Sec.  75.127 through 75.129, within one of the 
following number of years before the deadline date for submission of 
applications under the program:
    (i) 1 year;
    (ii) 2 years;
    (iii) 3 years;
    (iv) 4 years;
    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years;
    (4) The applicant has had an active discretionary grant or 
cooperative agreement from the Department, including through membership 
in a group application submitted in accordance with Sec. Sec.  75.127 
through 75.129, within one of the following number of years before the 
deadline date for submission of applications under the program from 
which it seeks funds:
    (i) 1 year;
    (ii) 2 years;
    (iii) 3 years;
    (iv) 4 years;
    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years;
    (5) The applicant has had an active contract from the Department 
within one of the following number of years before the deadline date 
for submission of applications under the program from which it seeks 
funds:
    (i) 1 year;
    (ii) 2 years;
    (iii) 3 years;
    (iv) 4 years;
    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years.
    (e) For the purpose of this section, a grant, cooperative 
agreement, or contract is active until the end of the grant's, 
cooperative agreement's, or contract's project or funding period, 
including any extensions of those periods that extend the grantee's or 
contractor's authority to obligate funds.
0
39. Revise Sec.  75.226 to read as follows:

[[Page 2013]]

Sec.  75.226  What procedures does the Secretary use if the Secretary 
decides to give special consideration to an application supported by 
strong evidence, moderate evidence, or promising evidence, or an 
application that demonstrates a rationale?

    If the Secretary determines that special consideration of 
applications supported by strong evidence, moderate evidence, promising 
evidence, or evidence that demonstrates a rationale is appropriate, the 
Secretary may establish a separate competition under the procedures in 
Sec.  75.105(c)(3), or provide competitive preference under the 
procedures in Sec.  75.105(c)(2), for applications that are supported 
by--
    (a) Strong evidence;
    (b) Moderate evidence;
    (c) Promising evidence; or
    (d) Evidence that demonstrates a rationale.
0
40. Add Sec.  75.227 before the undesignated center heading 
``Procedures to Make a Grant'' to read as follows:


Sec.  75.227  What procedures does the Secretary use if the Secretary 
decides to give special consideration to rural applicants?

    (a) If the Secretary determines that special consideration of rural 
applicants is appropriate, the Secretary may establish a separate 
competition under the procedures in Sec.  75.105(c)(3), or provide 
competitive preference under the procedures in Sec.  75.105(c)(2).
    (b) As used in this section, ``rural applicant'' means an applicant 
that meets one or more of the following conditions--
    (1) The applicant proposes to serve a local educational agency 
(LEA) that is eligible under the Small Rural School Achievement (SRSA) 
program or the Rural and Low-Income School (RLIS) program authorized 
under title V, part B of the Elementary and Secondary Education Act of 
1965.
    (2) The applicant proposes to serve a community that is served by 
one or more LEAs--
    (i) With a locale code of 32, 33, 41, 42, or 43; or
    (ii) With a locale code of 41, 42, or 43.
    (3) The applicant proposes a project in which a majority of the 
schools served--
    (i) Have a locale code of 32, 33, 41, 42, or 43; or
    (ii) Have a locale code of 41, 42, or 43.
    (4) The applicant is an institution of higher education (IHE) with 
a rural campus setting, or the applicant proposes to serve a campus 
with a rural setting. Rural settings include one or more of the 
following: Town-Fringe, Town-Distant, Town-Remote, Rural Fringe, Rural-
Distant, and Rural-Remote, as defined by the National Center for 
Education Statistics (NCES) College Navigator search tool.
    (c) If the Secretary determines that special consideration of rural 
applicants is appropriate and chooses, under the procedures in Sec.  
75.105(c)(3), to establish a separate competition for those applicants 
that meet one or more of the conditions in paragraph (b) of this 
section, the Secretary may also establish a separate competition for 
applications that do not meet that priority under the procedures in 
Sec.  75.105(c)(3) and consider such applications separately.
    (d) As used in this section, a ``non-rural applicant'' means an 
applicant that meets one or more of the following conditions--
    (1) The applicant does not propose to serve a local educational 
agency (LEA) that is eligible under the Small Rural School Achievement 
(SRSA) program or the Rural and Low-Income School (RLIS) program 
authorized under title V, part B of the Elementary and Secondary 
Education Act of 1965.
    (2) The applicant does not propose to serve a community that is 
served by one or more LEAs--
    (i) With a locale code of 32, 33, 41, 42, or 43; or
    (ii) With a locale code of 41, 42, or 43.
    (3) The applicant proposes a project in which a majority of the 
schools served--
    (i) Have a locale code of 32, 33, 41, 42, or 43; or
    (ii) Have a locale code of 41, 42, or 43.
    (4) The applicant is not an institution of higher education (IHE) 
with a rural campus setting, or the applicant proposes to serve a 
campus with a rural setting. Rural settings include one or more of the 
following: Town-Fringe, Town-Distant, Town-Remote, Rural Fringe, Rural-
Distant, and Rural-Remote, as defined by the National Center for 
Education Statistics (NCES) College Navigator search tool.
0
41. Revise Sec.  75.230 to read as follows:


Sec.  75.230  How the Department makes a grant.

    (a) If the Secretary selects an application under Sec. Sec.  
75.217, 75.220, or 75.222, the Secretary follows the procedures in 
Sec. Sec.  75.231 through 75.236 to set the amount and determine the 
conditions of a grant. Sections 75.235 through 75.236 also apply to 
grants under formula grant programs. (See Sec.  75.200 for more 
information.)


Sec.  75.234  [Amended]

0
42. Amend Sec.  75.234 by:
0
a. In paragraph (a)(2), removing the word ``special'' and adding in its 
place the word ``specific''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
43. Revise Sec.  75.250 to read as follows:


Sec.  75.250  Maximum project period.

    The Secretary may approve a project period of up to 60 months to 
perform the substantive work of a grant unless an applicable statute 
provides otherwise.
0
44. Revise Sec.  75.253 to read as follows:


Sec.  75.253  Continuation of a multiyear project after the first 
budget period.

    (a) Continuation award. A grantee, in order to receive a 
continuation award from the Secretary for a budget period after the 
first budget period of an approved multiyear project, must--
    (1) Either--
    (i) Demonstrate that it has made substantial progress in 
achieving--
    (A) The goals and objectives of the project; and
    (B) The performance targets in the grantee's approved application, 
if the Secretary established performance measurement requirements for 
the grant in the application notice; or
    (ii) Obtain the Secretary's approval for changes to the project 
that--
    (A) Do not increase the amount of funds obligated to the project by 
the Secretary; and
    (B) Enable the grantee to achieve the goals and objectives of the 
project and meet the performance targets of the project, if any, 
without changing the scope or objectives of the project;
    (2) Submit all reports as required by Sec.  75.118;
    (3) Continue to meet all applicable eligibility requirements of the 
grant program;
    (4) Maintain financial and administrative management systems that 
meet the requirements in 2 CFR 200.302 and 200.303; and
    (5) Receive a determination from the Secretary that continuation of 
the project is in the best interest of the Federal Government.
    (b) Information considered in making a continuation award. In 
determining whether the grantee has met the requirements described in 
paragraph (a) of this section, the Secretary may consider any relevant 
information regarding grantee performance. This includes considering 
reports required by Sec.  75.118, performance measures established by 
Sec.  75.110, financial information required by 2 CFR part 200, and any 
other relevant information.
    (c) Funding for continuation awards. Subject to the criteria in 
paragraphs (a) and (b) of this section, in selecting applications for 
funding under a

[[Page 2014]]

program, the Secretary gives priority to continuation awards over new 
grants.
    (d) Budget period. If the Secretary makes a continuation award 
under this section--
    (1) The Secretary makes the award under Sec. Sec.  75.231 through 
75.236; and
    (2) The new budget period begins on the day after the previous 
budget period ends.
    (e) Amount of continuation award. (1) Within the original project 
period of the grant and notwithstanding any requirements in 2 CFR part 
200, a grantee may expend funds that have not been obligated at the end 
of a budget period for obligations of subsequent budget periods if--
    (i) The obligation is for an allowable cost within the approved 
scope and objectives of the project; and
    (ii) The obligation is not otherwise prohibited by applicable 
statutes, regulations, or the conditions of an award.
    (2) The Secretary may--
    (i) Require the grantee to submit a written statement describing 
how the funds made available under paragraph (e)(1) of this section 
will be used; and
    (ii) Determine the amount of new funds that the Department will 
make available for the subsequent budget period after considering the 
statement the grantee provides under paragraph (e)(2)(i) of this 
section and any other information available to the Secretary about the 
use of funds under the grant.
    (3) In determining the amount of new funds to make available to a 
grantee under this section, the Secretary considers whether the 
unobligated funds made available are needed to complete activities that 
were planned for completion in the prior budget period.
    (4) A decision to reduce the amount of a continuation award under 
this paragraph (e) does not entitle a grantee to reconsideration under 
2 CFR 200.341.
    (f) Decision not to make a continuation award. The Secretary may 
decide not to make a continuation award if--
    (1) A grantee fails to meet any of the requirements in paragraph 
(a) of this section; or
    (2) A grantee fails to ensure that data submitted to the Department 
as a condition of the grant meet the definition of ``quality data'' in 
34 CFR 77.1(c) and does not have a plan acceptable to the Secretary for 
addressing data-quality issues in the next budget period.
    (g) Request for reconsideration. If the Secretary decides not to 
make a continuation award under this section, the Secretary will notify 
the grantee of that decision, the grounds on which it is based, and, 
consistent with 2 CFR 200.341, provide the grantee with an opportunity 
to request reconsideration of the decision.
    (1) A request for reconsideration must--
    (i) Be submitted in writing to the Department official identified 
in the notice denying the continuation award by the date specified in 
that notice; and
    (ii) Set forth the grantee's basis for disagreeing with the 
Secretary's decision not to make a continuation award and include 
relevant supporting documentation.
    (2) The Secretary will consider the request for reconsideration.
    (h) No-cost extension when a continuation award is not made. If the 
Secretary decides not to make a continuation award under this section, 
the Secretary may authorize a no-cost extension of the last budget 
period of the grant in order to provide for the orderly closeout of the 
grant.
    (i) A decision to reduce or not to make a continuation award does 
not constitute withholding. A decision by the Secretary to reduce the 
amount of a continuation award under paragraph (e) of this section or 
to not make a continuation award under paragraph (f) of this section 
does not constitute a withholding under section 455 of GEPA (20 U.S.C. 
1234d).
0
45. Revise Sec.  75.254 to read as follows:


Sec.  75.254  Data collection period.

    (a) The Secretary may approve a data collection period for a grant 
for a period of up to 72 months after the end of the project period and 
provide funds for the data collection period for the purpose of 
collecting, analyzing, and reporting performance measurement data on 
the project.
    (b) If the Secretary plans to approve a data collection period, the 
Secretary may inform applicants of the Secretary's intent to approve 
data collection periods in the application notice published for a 
competition or may decide to fund data collection periods after 
grantees have started their project periods.
    (c) If the Secretary informs applicants of the intent to approve 
data collection periods in the notice inviting applications, the 
Secretary may require applicants to include in the application a budget 
for, and description of, a data collection period for a period of up to 
72 months, as specified in the notice inviting applications, after the 
end of the project period.


Sec.  75.260  [Amended]

0
46. Amend Sec.  75.260 by:
0
a. In paragraph (b), removing the words ``the authorizing statute for 
that program'' and adding in their place the words ``applicable 
statutes and regulations''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
47. Revise Sec.  75.261 to read as follows:


Sec.  75.261  Extension of a project period.

    (a) One-time extension of project period without prior approval. A 
grantee may extend the project period of an award one time, for a 
period up to 12 months, without the prior approval of the Secretary, 
if--
    (1) The grantee meets the requirements for extension in 2 CFR 
200.308(e)(2); and
    (2) The extension is not otherwise prohibited by statute, 
regulation, or the conditions of an award.
    (b) Extension of project period with prior approval. At the 
conclusion of the project period extension authorized under paragraph 
(a) of this section, or in any case in which a project period extension 
is not authorized under paragraph (a) of this section, a grantee, with 
prior approval of the Secretary, may extend a project for an additional 
period if--
    (1) The extension is not otherwise prohibited by statute, 
regulations, or the conditions of an award;
    (2) The extension does not involve the obligation of additional 
Federal funds;
    (3) The extension is to carry out the approved objectives and scope 
of the project; and
    (4)(i) The Secretary determines that, due to special or unusual 
circumstances applicable to a class of grantees, the project periods 
for the grantees should be extended; or
    (ii)(A) The Secretary determines that special or unusual 
circumstances would delay completion of the project beyond the end of 
the project period;
    (B) The grantee requests an extension of the project period at 
least 45 calendar days before the end of the project period; and
    (C) The grantee provides a written statement, before the end of the 
project period, of the reasons the extension is appropriate under 
paragraph (b)(4)(ii)(A) of this section and the period for which the 
project extension is requested.
    (c) Waiver. The Secretary may waive the requirement in paragraph 
(b)(4)(ii)(B) of this section if--
    (1) The grantee could not reasonably have known of the need for the 
extension on or before the start of the 45-day period; or
    (2) The failure to give notice on or before the start of the 45-day 
period was unavoidable.

[[Page 2015]]

Sec.  75.263  [Amended]

0
48. Amend Sec.  75.263 by:
0
a. Removing ``, notwithstanding any requirement in 2 CFR part 200,'' 
from the introductory text.
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  75.264  [Amended]

0
49. Remove the authority citation at the end of the section.
0
50. Amend Sec.  75.500 by revising paragraph (a) to read as follows:


Sec.  75.500  Federal statutes and regulations on nondiscrimination.

    (a) Each grantee must comply with the following statutes and 
regulations:

                                           Table 1 to Sec.   75.500(a)
----------------------------------------------------------------------------------------------------------------
                 Subject                                Statute                           Regulations
----------------------------------------------------------------------------------------------------------------
Discrimination on the basis of race,       Title VI of the Civil Rights Act   34 CFR part 100.
 color, or national origin.                 of 1964 (42 U.S.C. 2000d et
                                            seq.).
Discrimination on the basis of sex.......  Title IX of the Education          34 CFR part 106.
                                            Amendments of 1972 (20 U.S.C.
                                            1681 et seq.).
Discrimination on the basis of disability  Section 504 of the Rehabilitation  34 CFR part 104.
                                            Act of 1973 (29 U.S.C. 794).
Discrimination on the basis of age.......  Age Discrimination Act of 1975     34 CFR part 110.
                                            (42 U.S.C. 6101 et seq.).
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  75.519  [Amended]

0
51. Amend Sec.  75.519 by:
0
a. Removing the words ``its grantee'' and adding in their place the 
words ``its grant'';
0
b. Adding ``, consistent with the cost principles described in 2 CFR 
part 200'' after the word ``funds''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.


Sec.  75.531  [Amended]

0
52. Amend Sec.  75.531 by removing the word ``insure'' and adding in 
its place the word ``ensure''.


Sec.  75.533  [Amended]

0
53. Amend Sec.  75.533 by:
0
a. Removing the words ``authorizing statute or implementing regulations 
for the program'' and adding in their place the words ``applicable 
statutes and regulations''.
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  75.534  [Amended]

0
54. Amend Sec.  75.534 in paragraph (a) by removing the words ``the 
program statute'' and adding in their place the words ``applicable 
statutes and regulations''.
0
55. Revise Sec.  75.560 to read as follows:


Sec.  75.560  General indirect cost rates and cost allocation plans; 
exceptions.

    (a) The differences between direct and indirect costs and the 
principles for determining the general indirect cost rate that a 
grantee may use for grants under most programs are specified in the 
cost principles for--
    (1) All grantees, other than hospitals and commercial (for-profit) 
organizations, at 2 CFR part 200, subpart E;
    (2) Hospitals, at 45 CFR part 75, appendix XI; and
    (3) Commercial (for-profit) organizations, at 48 CFR part 31.
    (b) Except as specified in paragraph (c) of this section, a grantee 
must have obtained a current indirect cost rate agreement or approved 
cost allocation plan from its cognizant agency, to charge indirect 
costs to a grant. To obtain a negotiated indirect cost rate agreement 
or approved cost allocation plan, a grantee must submit an indirect 
cost rate proposal or cost allocation plan to its cognizant agency 
within 90 days after the date on which the Department issues the Grant 
Award Notification (GAN).
    (c) A grantee that meets the requirements in 2 CFR 200.414(f) may 
elect to charge the de minimis rate of modified total direct costs 
(MTDC) specified in that provision, which may be used indefinitely. The 
de minimis rate may not be used on programs that have statutory or 
regulatory restrictions on the indirect cost rate. No documentation is 
required to justify the de minimis rate.
    (1) If the grantee has established a threshold for equipment that 
is lower than the amount specified in the Uniform Guidance, the grantee 
must use that threshold to exclude equipment from the MTDC base.
    (2) For purposes of the MTDC base and application of the de minimis 
rate, MTDC includes up to the amount specified in the definition of 
MTDC in the Uniform Guidance of each subaward, each year.
    (d) If a grantee is required to, but does not, have a federally 
recognized indirect cost rate agreement or approved cost allocation 
plan, the Secretary may permit the grantee to charge its grant for 
indirect costs at a temporary rate of 10 percent of budgeted direct 
salaries and wages.
    (e)(1) If a grantee fails to submit an indirect cost rate proposal 
or cost allocation plan to its cognizant agency within the required 90 
days, the grantee may not charge indirect costs to its grant from the 
end of the 90-day period until it obtains a federally recognized 
indirect cost rate agreement applicable to the grant.
    (2) If the Secretary determines that exceptional circumstances 
warrant continuation of a temporary indirect cost rate, the Secretary 
may authorize the grantee to continue charging indirect costs to its 
grant at the temporary rate specified in paragraph (d) of this section 
even though the grantee has not submitted its indirect cost rate 
proposal within the 90-day period.
    (3) Once a grantee obtains a federally recognized indirect cost 
rate that is applicable to the affected grant, the grantee may use that 
indirect cost rate to claim indirect cost reimbursement for 
expenditures made on or after the date on which the grantee submitted 
its indirect cost proposal to its cognizant agency or the start of the 
project period, whichever is later. However, this authority is subject 
to the following limitations:
    (i) The total amount of funds recovered by the grantee under the 
federally recognized indirect cost rate is reduced by the amount of 
indirect costs previously recovered under the temporary indirect cost 
rate specified in paragraph (d) of this section.
    (ii) The grantee must obtain prior approval from the Secretary to 
shift direct costs to indirect costs in order to recover indirect costs 
at a higher negotiated indirect cost rate.
    (iii) The grantee may not request additional funds to recover 
indirect costs that it cannot recover by shifting direct costs to 
indirect costs.
    (f) The Secretary accepts a current indirect cost rate and cost 
allocation plan approved by a grantee's cognizant

[[Page 2016]]

agency but may establish a restricted indirect cost rate or cost 
allocation plan compliant with 34 CFR 76.564 through 76.569 to satisfy 
the statutory requirements of certain programs administered by the 
Department.
0
56. Amend Sec.  75.561 by:
0
a. Revising the section heading and paragraph (a); and
0
b. Removing the second sentence of paragraph (b).
    The revisions read as follows:


Sec.  75.561  Approval of indirect cost rates and cost allocation 
plans.

    (a) If the Department of Education is the cognizant agency, the 
Secretary approves an indirect cost rate or cost allocation plan for a 
grantee that is eligible and does not elect a de minimis rate, and is 
not a local educational agency. For the purposes of this section, the 
term ``local educational agency'' does not include a State agency.
* * * * *
0
57. Revise Sec.  75.562 to read as follows:


Sec.  75.562  Indirect cost rates for educational training projects; 
exceptions.

    (a) Educational training grants provide funds for training or other 
educational services. Examples of the work supported by training grants 
are summer institutes, training programs for selected participants, the 
introduction of new or expanded courses, and similar instructional 
undertakings that are separately budgeted and accounted for by the 
sponsoring institution. These grants do not usually support activities 
involving research, development, and dissemination of new educational 
materials and methods. Training grants largely implement previously 
developed materials and methods and require no significant adaptation 
of techniques or instructional services to fit different circumstances.
    (b) The Secretary uses the definition in paragraph (a) of this 
section to determine which grants are educational training grants.
    (c)(1) Indirect cost reimbursement on a training grant is limited 
to the lesser of the recipient's approved indirect cost rate, or 8 
percent of the modified total direct cost (MTDC) base. MTDC is defined 
in 2 CFR 200.1.
    (2) If the grantee does not have a federally recognized indirect 
cost rate agreement on the date on which the training grant is awarded, 
the grantee may elect to use the temporary indirect cost rate 
authorized under Sec.  75.560(d)(3) or a rate of 8 percent of the MTDC 
base. The de minimis rate may not be used on educational training 
programs.
    (i) If the grantee has established a threshold for equipment that 
is lower than the amount specified in the Uniform Guidance, the grantee 
must use that threshold to exclude equipment from the MTDC base.
    (ii) For purposes of the MTDC base and application of the 8 percent 
rate, MTDC includes up to the amount specified in the definition of 
MTDC in the Uniform Guidance of each subaward, each year.
    (3) The 8 percent indirect cost rate reimbursement limit specified 
in paragraph (c)(1) of this section also applies when subrecipients 
issue subawards that fund training, as determined by the Secretary 
under paragraph (b) of this section.
    (4) The 8 percent limit does not apply to agencies of Indian tribal 
governments, local governments, and States as defined in 2 CFR 200.1.
    (5) Indirect costs in excess of the 8 percent limit may not be 
charged directly, used to satisfy matching or cost-sharing 
requirements, or charged to another Federal award.
    (d) A grantee using the training rate of 8 percent is required to 
maintain documentation to justify the 8 percent rate.
0
58. Revise Sec.  75.563 to read as follows:


Sec.  75.563  Restricted indirect cost rate or cost allocation plans--
programs covered.

    If a grantee or subgrantee decides to charge indirect costs to a 
program that is subject to a statutory prohibition on using Federal 
funds to supplant non-Federal funds, the grantee shall--
    (a) Use a negotiated restricted indirect cost rate or restricted 
cost allocation plan compliant with 34 CFR 76.564 through 76.569; or
    (b) Elect to use an indirect cost rate of 8 percent of the modified 
total direct costs (MTDC) base if the grantee or subgrantee does not 
have a negotiated restricted indirect cost rate. MTDC is defined in 2 
CFR 200.1. If the Secretary determines that the grantee or subgrantee 
would have a lower rate under 34 CFR 76.564 through 76.569, the lower 
rate shall be used on the affected program.
    (c) If the grantee has established a threshold for equipment that 
is lower than the amount specified in the Uniform Guidance, the grantee 
must use that threshold to exclude equipment from the MTDC base.
    (d) For purposes of the MTDC base and application of the 8 percent 
rate, MTDC includes up to the amount specified in the definition of 
MTDC in the Uniform Guidance of each subaward, each year.
0
59. Amend Sec.  75.564 by:
0
a. Revising paragraph (b);
0
b. Adding the words ``and other applicable restrictions'' at end of 
paragraph (d);
0
c. Removing the word ``for'' after the phrase ``to the direct cost 
base'' and adding in its place the word ``of'' in paragraph (e)(1);
0
d. Adding the words ``and program requirements'' at the end of 
paragraph (e)(1);
0
e. Removing the hyphen between ``sub'' and ``awards'' in paragraph 
(e)(2); and
0
f. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  75.564  Reimbursement of indirect costs.

* * * * *
    (b) The application of the negotiated indirect cost rate 
(determination of the direct cost base) or cost allocation plan 
(charging methodology) must be in accordance with the agreement/plan 
approved by the grantee's cognizant agency.
* * * * *


Sec.  75.580  [Amended]

0
60. Amend Sec.  75.580 is amended by removing the parenthetical 
authority citation.
0
61. Amend Sec.  75.590 by:
0
a. Adding paragraph (c); and
0
b. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  75.590  Grantee evaluations and reports.

* * * * *
    (c) An application notice for a competition may require each 
grantee under that competition to do one or more of the following:
    (1) Conduct an independent evaluation;
    (2) Make public the final report, including results of any required 
independent evaluation;
    (3) Ensure that the data from the independent evaluation are made 
available to third-party researchers consistent with applicable privacy 
requirements;
    (4) Submit the final evaluation to the Education Resources 
Information Center (ERIC), which is administered by the Institute of 
Education Sciences; or
    (5) Submit the final performance report under the grant to ERIC.
0
62. Revise Sec.  75.591 to read as follows:


Sec.  75.591  Federal evaluation; cooperation by a grantee.

    A grantee must cooperate in any evaluation of the program by the 
Secretary, in accordance with program

[[Page 2017]]

statute. If requested by the Secretary, a grantee must--
    (a) Cooperate with the collection of information, including from 
all or a subset of subgrantees and potential project beneficiaries, 
including both participants and non-participants, through surveys, 
observations, administrative records, or other data collection and 
analysis methods. This information collection may include program 
characteristics, including uses of program funds, as well as 
beneficiary characteristics, participation, and outcomes; and
    (b) If required by the Secretary, pilot its Department-funded 
activities with a subset of subgrantees, potential project 
beneficiaries, or eligible participants and allow the Department or its 
agent to randomly select the subset for the purpose of providing a 
basis for an experimental evaluation that could meet What Works 
Clearinghouse standards, with or without reservations.
0
63. Revise Sec.  75.600 to read as follows:


Sec.  75.600  Applicability of using grant funds for construction or 
real property.

    (a) As used in this section, the terms ``construction'' and ``minor 
remodeling'' have the meanings given those terms in 34 CFR 77.1(c).
    (b) Except as provided in paragraph (c) of this section, Sec. Sec.  
75.600 through 75.618 apply to:
    (1) An applicant that requests funds for construction or real 
property; and
    (2) A grantee whose grant includes funds for construction or real 
property.
    (c) Sections 75.600 through 75.618 do not apply to grantees in--
    (1) Programs prohibited from using funds for construction or real 
property under Sec.  75.533; and
    (2) Projects determined by the Secretary to be minor remodeling 
under 34 CFR 77.1(c).
0
64. Revise Sec.  75.601 to read as follows:


Sec.  75.601  Approval of the construction.

    (a) The Secretary approves a direct grantee construction project--
    (1) When the initial grant application is approved; or
    (2) After the grant has been awarded.
    (b) A grantee may not advertise or place the construction project 
on the market for bidding until after the Secretary has made a 
determination on the specifications of the project.
0
65. Revise Sec.  75.602 to read as follows:


Sec.  75.602  Planning the construction.

    (a) In planning the construction project, a grantee--
    (1) Must ensure that the design is functional, economical, and not 
elaborate in design or extravagant in the use of materials compared 
with facilities of a similar type constructed in the State or other 
applicable geographic area.
    (2) May consider excellence of architecture and design and 
inclusion of works of art. A grantee must not spend more than 1 percent 
of the cost of the project on works of art.
    (3) May make reasonable provision, consistent with the other uses 
to be made of the construction, for areas that are adaptable for 
artistic and other cultural activities.
    (b) In developing the proposed budget for the construction project, 
a grantee--
    (1) Must ensure that sufficient funds are available to meet any 
non-Federal share of the cost of the construction project.
    (2) May budget for reasonable and predictable contingency costs 
consistent with 2 CFR 200.433.
    (c) Prior to providing approval of the final working specifications 
of a construction project under Sec.  75.601, the Secretary considers a 
grantee's compliance with the following requirements, as applicable--
    (1) Title to site (Sec.  75.610).
    (2) Environmental impact assessment (Sec.  75.611).
    (3) Avoidance of flood hazards (Sec.  75.612).
    (4) Compliance with the Coastal Barrier Resources Act (Sec.  
75.613).
    (5) Preservation of historic sites (Sec.  75.614).
    (6) Build America, Buy America Act (Sec.  75.615).
    (7) Energy conservation (Sec.  75.616).
    (8) Access for individuals with disabilities (Sec.  75.617).
    (9) Safety and health standards (Sec.  75.618).
0
66. Revise Sec.  75.603 to read as follows:


Sec.  75.603  Beginning the construction.

    (a) A grantee must begin work on the construction project within a 
reasonable time after the Secretary has approved the project under 
Sec.  75.601.
    (b) A grantee must follow all applicable procurement standards in 2 
CFR part 200, subpart D, when advertising or placing the project on the 
market for bidding.
0
67. Revise Sec.  75.604 to read as follows:


Sec.  75.604  During the construction.

    (a) A grantee must maintain competent architectural engineering 
supervision and inspection at the construction site to ensure that the 
work conforms to the approved final working specifications.
    (b) A grantee must complete the construction in accordance with the 
approved final working specifications unless a revision is approved.
    (c) If a revision to the timeline, budget, or approved final 
working specifications is required, the grantee must request prior 
written approval consistent with 2 CFR 200.308(h).
    (d) A grantee must comply with Federal laws regarding prevailing 
wages on construction and minor remodeling projects assisted with 
Department funding, including, as applicable, subchapter IV of chapter 
31 of title 40, United States Code (commonly known as the ``Davis-Bacon 
Act''; as applied through section 439 of GEPA; 20 U.S.C. 1232b) and any 
tribally determined prevailing wages.
    (e) A grantee must submit periodic performance reports regarding 
the construction project containing information specified by the 
Secretary consistent with 2 CFR 200.329(d).
0
68. Revise Sec.  75.605 to read as follows:


Sec.  75.605  After the construction.

    (a) A grantee must ensure that sufficient funds will be available 
for effective operation and maintenance of the facilities after the 
construction is complete.
    (b) A grantee must operate and maintain the facilities in 
accordance with applicable Federal, State, and local requirements.
    (c) A grantee must maintain all financial records, supporting 
documents, statistical records, and other non-Federal entity records 
pertinent to the construction project consistent with 2 CFR 200.334.
0
69. Revise Sec.  75.606 is revised to read as follows:


Sec.  75.606  Real property requirements.

    (a) The Secretary approves a direct grantee real property project--
    (1) When the initial grant application is approved;
    (2) After the grant has been awarded; or
    (3) With the approval of a construction project under Sec.  75.601.
    (b) A grantee using any grant funds for real property acquisition 
must:
    (1) Comply with the Real Property Standards of the Uniform Guidance 
(2 CFR 200.310 through 200.316).
    (2) Not dispose of, modify the use of, or change the terms of the 
real property title, or other interest in the site and facilities 
without written permission and instructions from the Secretary.
    (3) Record the Federal interest in the title of the real property 
in the official real property records for the jurisdiction in which the 
facility is located.
    (4) Include a covenant in the title of the real property to ensure 
nondiscrimination.
    (5) Report at least annually on the status of real property in 
which the

[[Page 2018]]

Federal Government retains an interest consistent with 2 CFR 200.330.
    (c) A grantee is subject to the regulations on relocation 
assistance and real property acquisition in 34 CFR part 15 and 49 CFR 
part 24, as applicable


Sec.  75.607 through 75.609  [Removed and Reserved]

0
70. Remove and reserve Sec. Sec.  75.607 through 75.609.
0
71. Revise Sec.  75.610 to read as follows:


Sec.  75.610  Title to site.

    A grantee must have or obtain a full title or other interest in the 
site (such as a long-term lease), including right of access, that is 
sufficient to ensure the grantee's undisturbed use and possession of 
the facilities for at least 25 years after completion of the project or 
for the useful life of the construction, whichever is longer.
0
72. Revise Sec.  75.611 to read as follows:


Sec.  75.611  Environmental impact assessment.

    (a) When a grantee's construction or real property project is 
considered a ``Major Federal Action,'' as defined in 40 CFR 1508.1(q), 
the grantee must include an assessment of the impact of the proposed 
construction on the quality of the environment in accordance with 
section 102(2)(C) of the National Environmental Policy Act of 1969 
(NEPA) (42 U.S.C. 4332(2)(C)) and Executive Order 11514 (35 FR 4247).
    (b) If a grantee's construction or real property project is not 
considered a ``Major Federal Action'' under NEPA, a NEPA environmental 
impact assessment is not required; however--
    (1) An environmental impact assessment may be required under State 
or local requirements; and
    (2) Grantees are encouraged to perform some type of environmental 
assessment for projects that involve breaking ground, such as projects 
to expand the size of an existing building or replace an outdated 
building.
0
73. Revise Sec.  75.612 to read as follows:


Sec.  75.612  Avoidance of flood hazards.

    In planning the construction or real property project, a grantee 
must, in accordance with Executive Order 11988 of May 24, 1977 (3 CFR, 
1978 Comp., pp. 117-120):
    (a) Evaluate flood hazards in connection with the construction; and
    (b) As far as practicable, avoid uneconomic, hazardous, or 
unnecessary use of flood plains in connection with the construction.
0
74. Revise Sec.  75.613 to read as follows:


Sec.  75.613  Compliance with the Coastal Barrier Resources Act.

    A grantee may not use, within the Coastal Barrier Resources System, 
funds made available under a program administered by the Secretary for 
any purpose prohibited by the Coastal Barrier Resources Act (16 U.S.C. 
3501-3510).
0
75. Revise Sec.  75.614 to read as follows:


Sec.  75.614  Preservation of historic sites.

    (a) A grantee must describe the relationship of the proposed 
construction to, and probable effect on, any district, site, building, 
structure, or object that is:
    (1) Included in the National Register of Historic Places; or
    (2) Eligible under criteria established by the Secretary of the 
Interior for inclusion in the National Register of Historic Places.
    (b) In deciding whether to approve a construction project, the 
Secretary considers:
    (1) The information provided by the applicant under paragraph (a) 
of this section; and
    (2) Any comments received by the Advisory Council on Historic 
Preservation (see 36 CFR subpart 800.2).
0
76. Revise Sec.  75.615 to read as follows:


Sec.  75.615  Build America, Buy America Act.

    A grantee must comply with the requirements of the Build America, 
Buy America Act, Public Law 117-58, Sec.  70901-70927 and implementing 
regulations, as applicable.
0
77. Revise Sec.  76.616 to read as follows:


Sec.  75.616  Energy conservation.

    (a) To the extent practicable, a grantee must design and construct 
facilities to maximize the efficient use of energy.
    (b) A grantee must comply with ASHRAE 90.1 in their construction 
project.
    (c) ASHRAE 90.1, Energy Standard for Sites and Buildings Except 
Low-Rise Residential Buildings, 2022 is incorporated by reference into 
this section with the approval of the Director of the Federal Register 
under 5 U.S.C. 552(a) and 1 CFR part 51. This material is available for 
inspection at the Department of Education (the Department) and at the 
National Archives and Records Administration (NARA). Contact the 
Department at: Department of Education, 400 Maryland Avenue SW, Room 
4C212, Washington, DC 20202-8472; phone: 202-245-6776; email: 
[email protected]. For information on the availability of this material at 
NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or 
email [email protected]. The material may be obtained from the 
American Society of Heating, Refrigerating, and Air Conditioning 
Engineers (ASHRAE) at American Society of Heating, Refrigerating, and 
Air Conditioning Engineers, Inc., 1791 Tullie Circle NE, Atlanta, 
Georgia 30329; www.ashrae.org.
0
78. Revise Sec.  75.617 to read as follows:


Sec.  75.617  Access for individuals with disabilities.

    A grantee must comply with the following Federal regulations on 
access by individuals with disabilities that apply to the construction 
of facilities:
    (a) For residential facilities: 24 CFR part 40; and
    (b) For non-residential facilities: 41 CFR 102-76.60 to 102-76.95.


Sec.  75.618  [Redesignated as Sec.  75.619]

0
79. Redesignate Sec.  75.618 as Sec.  75.619.
0
80. Add new Sec.  75.618 to read as follows:


Sec.  75.618  Safety and health standards.

    In planning for and designing a construction project, a grantee 
must comply with the following:
    (a) The standards under the Occupational Safety and Health Act of 
1970 (See 29 CFR part 1910); and
    (b) State and local codes, to the extent that they are more 
stringent.
0
81. Revise Sec.  75.620 to read as follows:


Sec.  75.620  General conditions on publication.

    (a) Content of materials. Subject to any specific requirements that 
apply to its grant, a grantee may decide the format and content of 
project materials that it publishes or arranges to have published.
    (b) Required statement. The grantee must ensure that any 
publication that contains project materials also contains the following 
statement:
    The contents of this [insert type of publication; such as book, 
report, film, website, and web page] were developed under a grant from 
the U.S. Department of Education (Department). The Department does not 
mandate or prescribe practices, models, or other activities described 
or discussed in this document. The contents of this [insert type of 
publication] may contain examples of, adaptations of, and links to 
resources created and maintained by another public or private 
organization. The Department does not control or guarantee the 
accuracy, relevance, timeliness, or completeness of this outside 
information. The content of this [insert type of publication] does not 
necessarily represent the policy of the Department. This publication is 
not intended to represent the views or policy of, or be an endorsement 
of any

[[Page 2019]]

views expressed or materials provided by, any Federal agency.
0
82. Revise Sec.  75.622 to read as follows:


Sec.  75.622  Definition of ``project materials.''

    As used in Sec. Sec.  75.620 through 75.621, ``project materials'' 
means a copyrightable work developed with funds from a grant of the 
Department. (See 2 CFR 200.307 and 200.315.)
0
83. Add Sec.  75.623 to read as follows:


Sec.  75.623  Public availability of grant-supported research 
publications.

    (a) Grantees must make final peer-reviewed scholarly publications 
resulting from research supported by Department grants available to the 
Education Resources Information Center (ERIC), which is administered by 
the Institute of Education Sciences, upon acceptance for publication.
    (b) A final, peer-reviewed scholarly publication is the final 
version accepted for publication and includes all edits made as part of 
the peer review process, as well as all graphics and supplemental 
materials that are associated with the article.
    (c) The Department will make the final, peer-reviewed scholarly 
publication available to the public through ERIC no later than 12 
months after the official date of publication.
    (d) Grantees are responsible for ensuring that any publishing or 
copyright agreements concerning submitted articles fully comply with 
this section.
0
84. Remove the cross-reference under the heading ``Inventions and 
Patents'' before Sec.  75.626.
0
85. Amend Sec.  75.626 by:
0
a. Revising the section heading; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  75.626  Show Federal support.

* * * * *
0
86. Revise Sec.  75.650 to read as follows:


Sec.  75.650  Participation of students enrolled in private schools.

    If applicable statutes and regulations provide for participation of 
students enrolled in private schools and, as applicable, their teachers 
or other educational personnel, and their families, the grantee must 
provide, as applicable, services in accordance with Sec. Sec.  299.7 
through 299.11.


Sec.  75.682  [Amended]

0
87. Amend Sec.  75.682 by:
0
a. Removing the word ``shall'' and adding in its place the word 
``must'';
0
b. Removing the words ``of 1970'' after the words ``Animal Welfare 
Act''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
0
88. Revise Sec.  75.700 to read as follows:


Sec.  75.700  Compliance with the U.S. Constitution, statutes, 
regulations, stated institutional policies, and applications.

    A grantee must comply with Sec.  75.500, applicable statutes, 
regulations, Executive orders, stated institutional policies, and 
applications, and must use Federal funds in accordance with the U.S. 
Constitution and those statutes, regulations, Executive orders, stated 
institutional policies, and applications.


Sec.  75.702  [Amended]

0
89. Amend Sec.  75.702 by removing the word ``insure'' and adding in 
its place the word ``ensure''.
0
90. Amend Sec.  75.708 by:
0
a. Revising paragraph (b) introductory text;
0
b. In paragraph (d)(2), removing the words ``Federal statute and 
executive orders and their implementing regulations'' and adding in 
their place the words ``applicable law'';
0
c. In paragraph (d)(3), removing the word ``anti-discrimination'' and 
adding in its place the word ``nondiscrimination'';
0
d. Revising paragraph (e); and
0
e. Removing the parenthetical authority citation at the end of the 
section.
    The revisions reads as follows:


Sec.  75.708  Subgrants.

* * * * *
    (b) The Secretary may, through an announcement in the Federal 
Register or other reasonable means of notice, authorize subgrants when 
necessary to meet the purposes of a program. In this announcement, the 
Secretary will--
* * * * *
    (e) Grantees that are not allowed to make subgrants under paragraph 
(b) of this section are authorized to contract, as needed, for 
supplies, equipment, and other services, in accordance with 2 CFR part 
200, subpart D (2 CFR 200.317 through 200.326).
0
91. Amend Sec.  75.720 by:
0
a. In paragraph (a)(1), removing the citation ``2 CFR 200.327'' and 
adding in its place the citation ``2 CFR 200.328'';
0
b. In paragraph (a)(2), removing the citation ``2 CFR 200.328'' and 
adding in its place the citation ``2 CFR 200.329'';
0
c. Adding paragraph (d); and
0
d. Removing the parenthetical authority citation at the end of the 
section.
    The addition reads as follows:


Sec.  75.720  Financial and performance reports.

* * * * *
    (d) Upon request of the Secretary, a grantee shall, at the time of 
submission to the Secretary, post any report on performance and 
financial expenditure required by this section on a public-facing 
website maintained by the grantee.
0
92. Amend Sec.  75.740 by:
0
a. In paragraph (a), revising the parenthetical sentence at the end;
0
b. In paragraph (b), adding '' ; 20 U.S.C. 1232h, commonly known as the 
``Protection of Pupil Rights Amendment'' or ``PPRA''; and the Common 
Rule for the protection of Human Subjects and its implementing 
regulations at 34 CFR part 97, as applicable'' '' after the word ``GEPA 
and its implementing regulations at 34 CFR part 98''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  75.740  Protection of and access to student records; student 
rights in research, experimental programs, and testing.

    * * * (Section 444 of GEPA (20 U.S.C. 1232g) is commonly referred 
to as the ``Family Educational Rights and Privacy Act of 1974'' or 
``FERPA''.)
* * * * *


Sec.  75.900  [Amended]

0
93. Amend Sec.  75.900 by removing ``ED'' in paragraphs (a) and (b) and 
adding in its place the words ``the Department''.


Sec.  75.901  [Amended]

0
94. Amend Sec.  75.901 by:
0
a. In the introductory text, removing the words ``that are not subject 
to other procedures''; and
0
b. Removing the parenthetical authority citation from the end of the 
section.

PART 76--STATE-ADMINISTERED FORMULA GRANT PROGRAMS

0
95. The authority citation for part 76 is revised to read as follows:

    AUTHORITY:  20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
    Section 76.101 also issued under 20 U.S.C. 1221e-3, 3474, and 
7844(b).
    Section 76.127 also issued under 48 U.S.C. 1469a.
    Section 76.128 also issued under 48 U.S.C. 1469a.
    Section 76.129 also issued under 48 U.S.C. 1469a.
    Section 76.130 also issued under 48 U.S.C. 1469a.
    Section 76.131 also issued under 48 U.S.C. 1469a.
    Section 76.132 also issued under 48 U.S.C. 1469a.
    Section 76.134 also issued under 48 U.S.C. 1469a.

[[Page 2020]]

    Section 76.136 also issued under 48 U.S.C. 1469a.
    Section 76.140 also issued under 20 U.S.C. 1221e-3, 1231g(a), 
and 3474.
    Section 76.301 also issued under 1221e-3, 3474, and 7846(b).
    Section 76.401 also issued under 20 U.S.C. 1221e-3, 1231b-2, and 
3474.
    Section 76.709 also issued under 20 U.S.C. 1221e-3, 1225(b), and 
3474.
    Section 76.710 also issued under 20 U.S.C. 1221e-3, 1225(b), and 
3474.
    Section 76.720 also issued under 20 U.S.C. 1221e-3, 1231a, and 
3474.
    Section 76.740 also issued under 20 U.S.C. 1221e-3, 1232g, 
1232h, and 3474.
    Section 76.783 also issued under 20 U.S.C. 1231b-2.
    Section 76.785 also issued under 20 U.S.C. 7221e.
    Section 76.786 also issued under 20 U.S.C. 7221e
    Section 76.787 also issued under 20 U.S.C. 7221e.
    Section 76.788 also issued under 20 U.S.C. 7221e.
    Section 76.901 also issued under 20 U.S.C. 1234.

0
96. The part heading for part 76 is revised to read as set forth above.


Sec.  76.1  [Amended]

0
97. Revise Sec.  76.1 to read as follows:


Sec.  76.1  Programs to which this part applies.

    (a) The regulations in this part apply to each State-administered 
formula grant program of the Department.
    (b) If a State-administered formula grant program does not have 
implementing regulations, the Secretary implements the program under 
the applicable statutes and, to the extent consistent with the 
authorizing statute, under the GEPA and the regulations in this part. 
For the purposes of this part, the term State-administered formula 
grant program means a program whose applicable statutes or implementing 
regulations provide a formula for allocating program funds among 
eligible States.


Sec.  76.2  [Amended]

0
98. Amend Sec.  76.2 by removing the parenthetical authority citation 
at the end of the section.
0
99. Revise Sec.  76.50 to read as follows:


Sec.  76.50  Basic requirements for subgrants.

    (a) Under a program covered by this part, the Secretary makes a 
grant--
    (1) To the State agency designated by applicable statutes and 
regulations for the program; or
    (2) To the State agency designated by the State in accordance with 
applicable statutes and regulations.
    (b) Unless prohibited by applicable statutes or regulations or by 
the terms and conditions of the grant award, a State may use State-
administered formula grant funds--
    (1) Directly;
    (2) To make subgrants to eligible applicants; or
    (3) To authorize a subgrantee to make subgrants.
    (c) Grantees are responsible for monitoring subgrantees consistent 
with 2 CFR 200.332.
    (d) Grantees, in cases where subgrants are prohibited by applicable 
statutes or regulations or the conditions of a grant award, are 
authorized to contract, as needed, for supplies, equipment, and other 
services, in accordance with 2 CFR part 200, subpart D (2 CFR 200.317 
through 200.326).


Sec.  76.51  [Amended]

0
100. Amend Sec.  76.51 by:
0
a. In the introductory text, removing the words ``a program statute 
authorizes'' and adding in their place ``applicable statutes and 
regulations authorize''; and
0
b. Removing the parenthetical citation authority at the end of the 
section.


Sec.  76.52  [Amended]

0
101. Amend Sec.  76.52 by:
0
a. In paragraphs (a)(3) and (4), (b), (c)(1), and (d)(1) and (2), 
removing the words ``State-Administered Formula Grant'' and adding in 
their place ``State-administered formula grant''; and
0
b. In paragraph (e), adding the word ``Federal'' between the words 
``indirect'' and ``financial assistance''.


Sec.  76.100  [Amended]

0
102. Amend Sec.  76.100 by removing the words ``the authorizing statute 
and implementing regulations'' and adding in their place the words 
``applicable statutes and regulations''.
0
103. Revise Sec.  76.101 to read as follows:


Sec.  76.101  State plans in general.

    (a) Except as provided in paragraph (b) of this section, a State 
that makes subgrants to local educational agencies under a program 
subject to this part must have on file with the Secretary a State plan 
that meets the requirements of section 441 of GEPA (20 U.S.C. 1232d).
    (b) The requirements of section 441 of GEPA do not apply to a State 
plan submitted for a program under the Elementary and Secondary 
Education Act of 1965.
0
104. Revise Sec.  76.102 to read as follows:


Sec.  76.102  Definition of ``State plan'' for this part.

    As used in this part, State plan means any document that applicable 
statutes and regulations for a State-administered formula grant program 
require a State to submit in order to receive funds for the program. To 
the extent that any provision of this part conflicts with program-
specific implementing regulations related to the plan, the program-
specific implementing regulations govern.
0
105. Revise Sec.  76.103 to read as follows:


Sec.  76.103  Multiyear State plans.

    Unless otherwise specified by statute, regulations, or the 
Secretary, each State plan is effective for a period of more than one 
fiscal year, to be determined by the Secretary or by regulations.


Sec.  76.125  [Amended]

0
106. Amend Sec.  76.125 by:
0
a. In paragraph (b), removing ``the Trust Territory of the Pacific 
Islands,'';
0
b. In paragraph (c), adding ``, consistent with applicable law'' after 
the word ``Department''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.127  [Amended]

0
107. Amend Sec.  76.127 by:
0
a. In the introductory text, removing the words ``of the programs 
listed in Sec.  76.125(c)'' and adding in their place the words 
``State-administered formula grant programs''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
108. Amend Sec.  76.128 by:
0
a. Removing the words ``of the programs listed in Sec.  76.125(c)'' and 
adding in their place the words ``State-administered formula grant 
programs'';
0
b. Revising the example at the end of the section; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  76.128  What is a consolidated grant?

* * * * *
    Example 1 to Sec.  76.128. Assume the Virgin Islands applies for a 
consolidated grant that includes funds under the Carl D. Perkins Career 
and Technical Education Act of 2006 and title I, part A; title II, part 
A; and title IV, part A of the Elementary and Secondary Education Act 
of 1965. If the Virgin Islands' allocation under the formula for each 
of these four programs is $150,000, the total consolidated grant to the 
Virgin Islands would be $600,000.
0
109. Amend Sec.  76.129 by:
0
a. Revising the example after paragraph (a) and the example after 
paragraph (b).

[[Page 2021]]

0
b. Removing the parenthetical authority citation at the end of the 
section.
    The revisions read as follows:


Sec.  76.129  How does a consolidated grant work?

    (a) * * *
    Example 1 to paragraph (a). Assume that Guam receives, under the 
consolidated grant, funds from Carl D. Perkins Career and Technical 
Education Act of 2006, Title I, part A of the ESEA, and Title IV, part 
A of the ESEA. The sum of the allocations under these programs is 
$600,000. Guam may choose to allocate this $600,000 among one, two, or 
all three of the programs.
    (b) * * *
    Example 2 to paragraph (b). Assume that American Samoa uses part of 
the funds under a consolidated grant to carry out programs and 
activities under Title IV, part A of the ESEA. American Samoa need not 
submit to the Secretary a State plan that addresses the program's 
application requirement that the State educational agency describe how 
it will use funds for State-level activities. However, in carrying out 
the program, American Samoa must use the required amount of funds for 
State-level activities under the program.


Sec.  76.130  [Amended]

0
110. Amend Sec.  76.130 by:
0
a. Removing in paragraph (d) the words ``statute and regulations for 
that program'' and adding in their place the words ``statutes and 
regulations that apply to that program''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.131  [Amended]

0
111. Amend Sec.  76.131 by:
0
a. In paragraph (a), removing the words ``programs listed in Sec.  
76.125(c)'' and adding in their place the words ``State-administered 
formula grant programs'';
0
b. In paragraph (b), removing the words ``the authorizing statutes and 
regulations'' and adding in their place the words ``applicable statutes 
and regulations'';
0
c. In paragraph (c)(1), removing the words ``programs in Sec.  
76.125(c)'' and adding in their place the words ``State-administered 
formula grant programs'';
0
c. In paragraph (c)(2), removing the words ``program or programs in 
Sec.  76.125(c)'' and adding in their place the words ``State-
administered formula grant programs''; and
0
d. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.132  [Amended]

0
112. Amend Sec.  76.132 by:
0
a. In paragraphs (a)(2),removing the word ``authorizing'' and adding in 
its place the word ``applicable'';
0
b. In paragraph (a)(4), removing the word ``assure'' and adding in its 
place the word ``ensure'';
0
c. In paragraph (a)(5), removing the phrase ``2 CFR 200.327 and 
200.328'' and adding in its place ``2 CFR 200.328 and 200.329'';
0
d. In paragraph (a)(9),removing the word ``authorizing'' and adding in 
its place the word ``applicable''; and
0
e. Removing the parenthetical authority citation at the end of the 
section.
0
113. Amend Sec.  76.134 by:
0
a. Revising paragraph (a);
0
b. In paragraph (b), removing the words ``the program statute'' and 
adding in their place the words ``applicable statutes''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  76.134  What is the relationship between consolidated and non-
consolidated grants?

    (a) An Insular Area may request that any State-administered formula 
grant programs be included in its consolidated grant and may apply 
separately for assistance under any other of those programs for which 
it is eligible.
* * * * *


Sec.  76.136  [Amended]

0
114. Amend Sec.  76.136 by:
0
a. Removing the words ``programs described in Sec.  76.125(c)'' and 
adding in their place the words ``State-administered formula grant 
programs''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
115. Revise Sec.  76.140 to read as follows:


Sec.  76.140  Amendments to a State plan.

    (a) If the Secretary determines that an amendment to a State plan 
is essential during the effective period of the plan, the State must 
make the amendment.
    (b) A State must also amend a State plan if there is a significant 
and relevant change in the information or the assurances in the plan.
    (c) If a State amends a State plan, to the extent consistent with 
applicable law, the State must use the same procedures as those it must 
use to prepare and submit a State plan, unless the Secretary prescribes 
different procedures based on the characteristics of a particular 
State-administered formula grant program.


Sec. Sec.  76.141 and 76.142  [Removed and Reserved]

0
116. Remove and reserve Sec. Sec.  76.141 and 76.142.


Sec.  76.260  [Amended]

0
117. Amend Sec.  76.260 by:
0
a. In the section heading, removing the words ``program statute'' and 
adding in their place the words ``applicable statutes''.
0
b. Removing the words ``the authorizing statute'' wherever they appear 
and adding in their place the words ``applicable statutes''.
0
118. Revise Sec.  76.301 to read as follows:


Sec.  76.301  Local educational agency application in general.

    (a) A local educational agency (LEA) that applies for a subgrant 
under a program subject to this part must have on file with the State 
an application that meets the requirements of section 442 of GEPA (20 
U.S.C. 1232e).
    (b) The requirements of section 442 of GEPA do not apply to an 
LEA's application for a program under the ESEA.


Sec.  76.400  [Amended]

0
119. Amend Sec.  76.400 in paragraphs (b)(2), (c)(2), and (d) by 
removing the words ``Federal statutes'' and adding in their place the 
words ``applicable statutes''.
0
120. Revise Sec.  76.401 to read as follows:


Sec.  76.401  Disapproval of an application--opportunity for a hearing.

    (a) State educational agency hearing regarding disapproval of an 
application. When financial assistance is provided to (or through) a 
State educational agency (SEA) consistent with an approved State plan 
and the SEA takes final action by disapproving or failing to approve an 
application for a subgrant in whole or in part, the SEA must provide 
the aggrieved applicant with notice and an opportunity for a hearing 
regarding the SEA's disapproval or failure to approve the application.
    (b) Applicant request for SEA hearing. (1) The aggrieved applicant 
must request a hearing within 30 days of the final action of the SEA.
    (2) The aggrieved applicant's request for a hearing must include, 
at a minimum, a citation to the specific State or Federal statute, 
rule, regulation, or guideline that the SEA allegedly violated when 
disapproving or failing to approve the application in whole or in part 
and a brief description of the alleged violation.

[[Page 2022]]

    (3) The SEA must make available, at reasonable times and places to 
each applicant, all records of the SEA pertaining to the SEA's failure 
to approve the application in whole or in part that is the subject of 
the applicant's request for a hearing under this paragraph (b).
    (c) SEA hearing procedures. (1) Within 30 days after it receives a 
request that meets the requirements of paragraphs (b)(1) and (2) of 
this section, the SEA must hold a hearing on the record to review its 
action.
    (2) No later than 10 days after the hearing, the SEA must issue its 
written ruling, including findings of fact and reasons for the ruling.
    (3) If the SEA determines that its action was contrary to State or 
Federal statutes, rules, regulations, or guidelines that govern the 
applicable program, the SEA must rescind its action in whole or in 
part.
    (d) Procedures for appeal of SEA action to the Secretary. (1) If an 
SEA does not rescind its final action disapproving or failing to 
approve an application in whole or in part after the SEA conducts a 
hearing consistent with paragraph (c) of this section, the applicant 
may appeal the SEA's final action to the Secretary.
    (2) The applicant must file a notice of appeal with the Secretary 
within 20 days after the applicant has received the SEA's written 
ruling.
    (3) The applicant's notice of appeal must include, at a minimum, a 
citation to the specific Federal statute, rule, regulation, or 
guideline that the SEA allegedly violated and a brief description of 
the alleged violation.
    (4) The Secretary may issue interim orders at any time when 
considering the appeal, including requesting the hearing record and any 
additional documentation, such as additional documentation regarding 
the information provided pursuant to paragraph (d)(3) of this section.
    (5) After considering the appeal, the Secretary issues an order 
either affirming the final action of the SEA or requiring the SEA to 
take appropriate action, if the Secretary determines that the final 
action of the SEA was contrary to a Federal statute, rule, regulation, 
or guideline that governs the applicable program.
    (e) Programs administered by State agencies other than an SEA. 
Under programs with an approved State plan under which financial 
assistance is provided to (or through) a State agency that is not the 
SEA, that State agency is not required to comply with this section 
unless specifically required to do so by Federal statute or regulation.
0
121. Amend Sec.  76.500 by revising paragraph (a) and removing the 
parenthetical authority citation at the end of the section.
    The revision reads as follows:


Sec.  76.500  Federal statutes and regulations on nondiscrimination.

    (a) A State and a subgrantee must comply with the following 
statutes and regulations:

                                           Table 1 to Sec.   76.500(a)
----------------------------------------------------------------------------------------------------------------
                 Subject                                Statute                           Regulation
----------------------------------------------------------------------------------------------------------------
Discrimination on the basis of race,       Title VI of the Civil Rights Act   34 CFR part 100.
 color, or national origin.                 of 1964 (42 U.S.C. 2000d et
                                            seq.).
Discrimination on the basis of sex.......  Title IX of the Education          34 CFR part 106.
                                            Amendments of 1972 (20 U.S.C.
                                            1681 et seq.).
Discrimination on the basis of disability  Section 504 of the Rehabilitation  34 CFR part 104.
                                            Act of 1973 (29 U.S.C. 794).
Discrimination on the basis of age.......  Age Discrimination Act of 1975     34 CFR part 110.
                                            (42 U.S.C. 6101 et seq.).
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  76.532  [Amended]

0
122. Amend Sec.  76.532 by removing the parenthetical authority 
citation at the end of the section.


Sec.  76.533  [Amended]

0
123. Amend Sec.  76.533 by:
0
a. Removing the words ``the authorizing statute'' and adding in their 
place the words ``applicable statutes''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
124. Revise Sec.  76.560 to read as follows:


Sec.  76.560  General indirect cost rates and cost allocation plans; 
exceptions.

    (a) The differences between direct and indirect costs and the 
principles for determining the general indirect cost rate that a 
grantee may use for grants under most programs are specified in the 
cost principles for--
    (1) All grantees, other than hospitals and commercial (for-profit) 
organizations, at 2 CFR part 200, subpart E;
    (2) Hospitals, at 45 CFR part 75, appendix IX; and
    (3) Commercial (for-profit) organizations, at 48 CFR part 31.
    (b) Except as specified in paragraph (c) of this section, a grantee 
must have a current indirect cost rate agreement or approved cost 
allocation plan to charge indirect costs to a grant. To obtain a 
negotiated indirect cost rate agreement or approved cost allocation 
plan, a grantee must submit an indirect cost rate proposal or cost 
allocation plan to its cognizant agency.
    (c) A grantee that meets the requirements in 2 CFR 200.414(f) may 
elect to charge the de minimis rate of modified total direct costs 
(MTDC) specified in that provision, which may be used indefinitely. The 
de minimis rate may not be used on programs that have statutory or 
regulatory restrictions on the indirect cost rate. No documentation is 
required to justify the de minimis rate.
    (1) If the grantee has established a threshold for equipment that 
is lower than the amount specified in the Uniform Guidance, the grantee 
must use that threshold to exclude equipment from the MTDC base.
    (2) For purposes of the MTDC base and application of the 10 percent 
rate, MTDC includes up to the amount specified in the definition of 
MTDC in the Uniform Guidance of each subaward, each year.
    (d) If a grantee is required to, but does not, have a federally 
recognized indirect cost rate or approved cost allocation plan, the 
Secretary may permit the grantee to charge a temporary indirect cost 
rate of 10 percent of budgeted direct salaries and wages.
    (e)(1) If a grantee fails to submit an indirect cost rate proposal 
or cost allocation plan to its cognizant agency within the required 90 
days, the grantee may not charge indirect costs to its grant from the 
end of the 90-day period until it obtains a federally recognized 
indirect cost rate agreement applicable to the grant.
    (2) If the Secretary determines that exceptional circumstances 
warrant continuation of a temporary indirect cost rate, the Secretary 
may authorize

[[Page 2023]]

the grantee to continue charging indirect costs to its grant at the 
temporary rate specified in paragraph (d) of this section even though 
the grantee has not submitted its indirect cost rate proposal within 
the 90-day period.
    (3) Once a grantee obtains a federally recognized indirect cost 
rate that is applicable to the affected grant, the grantee may use that 
indirect cost rate to claim indirect cost reimbursement for 
expenditures made on or after the date on which the grantee submitted 
its indirect cost proposal to its cognizant agency or the start of the 
project period, whichever is later. However, this authority is subject 
to the following limitations:
    (i) The total amount of funds recovered by the grantee under the 
federally recognized indirect cost rate is reduced by the amount of 
indirect costs previously recovered under the temporary indirect cost 
rate specified in paragraph (d) of this section.
    (ii) The grantee must obtain prior approval from the Secretary to 
shift direct costs to indirect costs in order to recover indirect costs 
at a higher negotiated indirect cost rate.
    (iii) The grantee may not request additional funds to recover 
indirect costs that it cannot recover by shifting direct costs to 
indirect costs.
    (f) The Secretary accepts a negotiated indirect cost rate or 
approved cost allocation plan but may establish a restricted indirect 
cost rate or cost allocation plan compliant with Sec. Sec.  76.564 
through 76.569 for a grantee to satisfy the statutory requirements of 
certain programs administered by the Department.
0
125. Revise Sec.  76.561 to read as follows:


Sec.  76.561  Approval of indirect cost rates and cost allocation 
plans.

    (a) If the Department of Education is the cognizant agency, the 
Secretary approves an indirect cost rate or cost allocation plan for a 
State agency and for a subgrantee other than a local educational 
agency. For the purposes of this section, the term ``local educational 
agency'' does not include a State agency.
    (b) Each State educational agency, on the basis of a plan approved 
by the Secretary, shall approve an indirect cost rate for each local 
educational agency that requests it to do so.
    (c) The Secretary generally approves indirect cost rate agreements 
annually. Indirect cost rate agreements may be approved for periods 
longer than a year if the Secretary determines that rates will be 
sufficiently stable to justify a longer rate period.
0
126. Add Sec.  76.562 to read as follows:


Sec.  76.562  Reimbursement of indirect costs.

    (a) Reimbursement of indirect costs is subject to the availability 
of funds and statutory or administrative restrictions.
    (b) The application of the negotiated indirect cost rate 
(determination of the direct cost base) or cost allocation plan 
(charging methodology) must be in accordance with the agreement/plan 
approved by the grantee's cognizant agency.
    (c) Indirect costs for joint applications and projects (see Sec.  
76.303) are limited to the amount derived by applying the rate of the 
applicant, or a restricted rate when applicable, to the direct cost 
base for the grant in keeping with the terms of the applicant's 
federally recognized indirect cost rate agreement and program 
requirements.


Sec.  76.563  [Amended]

0
127. Amend Sec.  76.563 by:
0
a. Removing the words ``agencies of State and local governments that 
are grantees under'';
0
b. Removing the words ``their subgrantees'' and adding in their place 
the word ``subgrants''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
0
128. Revise Sec.  76.654 to read as follows:


Sec.  76.564  Restricted indirect cost rate formula.

    (a) An indirect cost rate for a grant covered by Sec. Sec.  76.563 
or 75.563 is determined by the following formula:

Restricted indirect cost rate = (General management costs + Fixed 
costs) / (Other expenditures).

    (b) General management costs, fixed costs, and other expenditures 
must be determined under Sec. Sec.  76.565 through 76.567.
    (c) Under the programs covered by Sec.  76.563, a grantee or 
subgrantee that is not a State or local government agency--
    (1) Shall use a negotiated restricted indirect cost rate computed 
under paragraph (a) of this section or cost allocation plan that 
complies with the formula in paragraph (a) of this section; or
    (2) May elect to use an indirect cost rate of 8 percent of the 
modified total direct costs (MTDC) base if the grantee or subgrantee 
does not have a negotiated restricted indirect cost rate. MTDC is 
defined in 2 CFR 200.1. If the Secretary determines that the grantee or 
subgrantee would have a lower rate as calculated under paragraph (a) of 
this section, the lower rate shall be used for the affected program.
    (3) If the grantee has established a threshold for equipment that 
is lower than the amount specified in the Uniform Guidance, the grantee 
must use that threshold to exclude equipment from the MTDC base.
    (4) For purposes of the MTDC base and application of the 8 percent 
rate, MTDC includes up to the amount specified in the definition of 
MTDC in the Uniform Guidance of each subaward, each year.
    (d) Indirect costs that are unrecovered as a result of these 
restrictions may not be charged directly, used to satisfy matching or 
cost-sharing requirements, or charged to another Federal award.


Sec.  76.565  [Amended]

0
129. Amend Sec.  76.565 by removing the parenthetical authority 
citation at the end of the section.


Sec.  76.566  [Amended]

0
130. Amend Sec.  76.566 by:
0
a. In the introductory text, adding the word ``allowable'' before the 
words ``indirect costs''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
131. Amend Sec.  76.567 by:
0
a. Revising paragraph (b)(3);
0
b. In paragraph (b)(7), removing the punctuation and word ``; and'';
0
c. Redesignating paragraph (b)(8) as paragraph (b)(9);
0
d. Adding a new paragraph (b)(8); and
0
e. Removing the parenthetical authority citation at the end of the 
section.
    The revision and addition read as follows:


Sec.  76.567  Other expenditures--restricted rate.

* * * * *
    (b) * * *
    (3) Subawards exceeding the amount specified in the definition of 
Modified Total Direct Cost in the Uniform Guidance each, per year;
* * * * *
    (8) Other distorting items; and
* * * * *


Sec.  76.568  [Amended]

0
132. Amend Sec.  76.568 by:
0
a. In paragraph (c), adding the word ``(denominator)'' after the word 
``expenditures''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.
0
133. Amend Sec.  76.569 by:
0
a. Revising paragraph (a) and removing the parenthetical authority 
citation at the end of the section.
    The revision reads as follows:

[[Page 2024]]

Sec.  76.569  Using the restricted indirect cost rate.

    (a) Under the programs referenced in Sec. Sec.  75.563 and 76.563, 
the maximum amount of indirect costs recovery under a grant is 
determined by the following formula:

Indirect costs = (Restricted indirect cost rate) x (Total direct costs 
of the grant minus capital outlays, subawards exceeding amount 
specified in the definition of Modified Total Direct Cost in the 
Uniform Guidance each, per year, and other distorting or unallowable 
items as specified in the grantee's indirect cost rate agreement)
* * * * *


Sec.  76.580  [Amended]

0
134. Amend Sec.  76.580 by removing the parenthetical authority 
citation at the end of the section.
0
135. Revise Sec.  76.600 to read as follows:


Sec.  76.600  Where to find the construction regulations.

    (a) A State or a subgrantee that requests program funds for 
construction, or whose grant or subgrant includes funds for 
construction, must comply with the rules on construction that apply to 
applicants and grantees under 34 CFR 75.600 through 75.618.
    (b) The State must perform the functions of the Secretary for 
subgrantee requests under 34 CFR 75.601 (Approval of the construction).
    (c) The State must perform the functions that the Secretary 
performs under 34 CFR 75.614(b). The State may consult with the State 
Historic Preservation Officer and Tribal Historic Preservation Officer 
to identify and evaluate historic properties and assess effects. The 
Secretary will continue to participate in the consultation process 
when:
    (1) The State determines that ``Criteria of Adverse Effect'' 
applies to a project;
    (2) There is a disagreement between the State and the State 
Historic Preservation Officer or Tribal Historic Preservation Officer 
regarding identification and evaluation or assessment of effects;
    (3) There is an objection from consulting parties or the public 
regarding findings, determinations, the implementation of agreed-upon 
provisions, or their involvement in a National Historic Preservation 
Act Section 106 review (see 36 CFR part 800); or
    (4) There is the potential for a foreclosure situation or 
anticipatory demolition as specified in Section 110(k) of the National 
Historic Preservation Act (see 36 CFR part 800).
    (d) The State must provide to the Secretary the information 
required under 34 CFR 75.614(a) (Preservation of historic sites).
    (e) The State must submit periodic reports to the Secretary 
regarding the State's review and approval of construction or real 
property projects containing information specified by the Secretary 
consistent with 2 CFR 200.329(d).
0
136-137. Revise the undesignated center heading before Sec.  76.650 and 
revise Sec.  76.650 to read as follows:

Participation of Private School Children, Teachers or Other Educational 
Personnel, and Families


Sec.  76.650  Participation of private school children, teachers or 
other educational personnel, and families.

    If a program provides for participation by private school children, 
teachers or other educational personnel, and families, and the program 
is not otherwise governed by applicable regulations, the grantee or 
subgrantee must provide, as applicable, services in accordance with the 
requirements under Sec. Sec.  299.7 through 299.11.


Sec. Sec.  76.651 through 76.662  [Removed and Reserved]

0
138. Remove and reserve Sec. Sec.  76.651 through 76.662.


Sec.  76.665  [Removed and Reserved]

0
139. Remove the undesignated center heading ``Equitable Services under 
the CARES Act'' above Sec.  76.665 and remove and reserve Sec.  76.665.


Sec. Sec.  76.670 through 76.677  [Removed and Reserved]

0
140. Remove the undesignated section heading ``Procedures for Bypass'' 
above Sec.  76.670 and remove and reserve Sec. Sec.  76.670 through 
76.677.


Sec.  76.682  [Amended]

0
141. Amend Sec.  76.682 by removing the parenthetical authority 
citation at the end of the section.


Sec.  76.702  [Amended]

0
142. Amend Sec.  76.702 removing the word ``insure'' and adding in its 
place the word ``ensure''.
0
143. Amend Sec.  76.707 by revising paragraph (h) and removing the 
parenthetical authority citation at the end of the section.
    The revision reads as follows:


Sec.  76.707  When obligations are made.

* * * * *

------------------------------------------------------------------------
        If the obligation is for--            The obligation is made--
------------------------------------------------------------------------
 
                              * * * * * * *
(h) A pre-agreement cost that was          On the first day of the grant
 properly approved by the Secretary under   or subgrant period of
 the cost principles in 2 CFR part 200,     performance.
 subpart E.
------------------------------------------------------------------------

Sec.  76.708  [Amended]

0
144. Amend Sec.  76.708 by:
0
a. In paragraph (a) introductory text, removing the words ``the 
authorizing statute'' and adding in their place the words ``applicable 
statutes and regulations'', removing the word ``requires'' and adding 
in its place the word ``require'', and removing the words ``(see Sec.  
76.5)'' and adding, in their place, the words ``(see Sec.  76.51(a))'';
0
b. In paragraph (c), removing the words ``the authorizing statute'' and 
adding in their place the words ``applicable statutes and regulations'' 
and removing the word ``gives'' and adding in its place the word 
``give''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.709  [Amended]

0
145. Amend Sec.  76.709 by removing the Note and the parenthetical 
authority citation at the end of the section.


Sec.  76.710  [Amended]

0
146. Amend Sec.  76.710 by removing the Note and the parenthetical 
authority citation at the end of the section.


Sec.  76.711  [Amended]

0
147. Amend Sec.  76.711 by:
0
a. In the section heading, removing the abbreviation ``CFDA'' and 
adding in its place the abbreviation ``ALN''; and
0
b. Removing the phrase ``Catalog of Federal Domestic Assistance 
(CFDA)'' and adding in its place the phrase ``Assistance Listing Number 
(ALN)''.

[[Page 2025]]

Sec.  76.714  [Amended]

0
148. Amend Sec.  76.714 by adding ``, as defined in Sec.  
76.52(c)(3),'' after ``Federal financial assistance''.


Sec.  76.720  [Amended]

0
149. Amend Sec.  76.720 by:
0
a. In paragraph (a), removing the citation ``2 CFR 200.327'' and adding 
in its place the citation ``2 CFR 200.328'', removing the citation ``2 
CFR 200.328'' and adding, in its place, the citation ``2 CFR 200.329'', 
and removing the words ``the Paperwork Reduction Act of 1995, 44 U.S.C. 
3501-3520'' and adding, in their place, the words ``Subchapter 1 of 
Chapter 35 (sections 3501-3521) of Title 44, U.S. Code, commonly known 
as the ``Paperwork Reduction Act'' '';
0
b. In paragraph (c)(2), removing the words ``the General Education 
Provisions Act'' and adding, in their place, the word ``GEPA''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
0
150. Amend Sec.  76.740 by:
0
a. In paragraph (a), removing the number ``438'' and adding in its 
place the number ``444'' in the first sentence and revising the 
parenthetical sentence at the end;
0
b. In paragraph (b), removing the number ``439'' and adding in its 
place the number ``445''; and adding the words ``(20 U.S.C. 1232h; 
commonly known as the ``Protection of Pupil Rights Amendment'' or 
``PPRA'')'' after the words ``of GEPA''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  76.740  Protection of and access to student records; student 
rights in research, experimental programs, and testing.

    (a) * * * (Section 444 of GEPA (20 U.S.C. 1232g) is commonly 
referred to as the ``Family Educational Rights and Privacy Act of 
1974'' or ``FERPA''.)
* * * * *


Sec.  76.761  [Amended]

0
151. Amend Sec.  76.761 in paragraph (b) by removing the words ``the 
authorizing statute and implementing regulations for the program'' and 
adding in their place the words ``applicable statutes and 
regulations''.
0
152. Amend Sec.  76.783 by:
0
a. In paragraph (a)(1), removing the word ``or'' '
0
b. In paragraph (a)(2), removing the period and adding in its place ``; 
or'';
0
c. Adding paragraph (a)(3);
0
d. Removing the citation ``76.401(d)(2)-(7)'' in paragraph (b) and 
adding in its place the citation ``76.401(a) through (d)''; and
0
e. Removing the Note and parenthetical authority citation at the end of 
the section.
    The addition reads as follows:


Sec.  76.783  State educational agency action--subgrantee's opportunity 
for a hearing.

    (a) * * *
    (3) Failing to provide funds in amounts in accordance with the 
requirements of applicable statutes and regulations.
* * * * *


Sec.  76.785  [Amended]

0
153. Amend Sec.  76.785 by:
0
a. Removing the words ``section 10306'' and adding in their place the 
words ``section 4306''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.786  [Amended]

0
154. Amend Sec.  76.786 by:
0
a. In paragraph (a), removing the words ``Public Charter Schools 
Program'' and adding in their place the words ``Charter School State 
Entity Grant Program''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.787  [Amended]

0
155. Amend Sec.  76.787 by:
0
a. In the definition of ``charter school,'' removing the words ``title 
X, part C of the ESEA'' and adding in their place the words ``section 
4310(2) of the ESEA (20 U.S.C. 7221i(2))'';
0
b. In the definition of ``covered program,'' removing the words ``an 
elementary or secondary education program administered by the 
Department under which the Secretary allocates funds to States on a 
formula basis'' and adding in their place the words ``a State-
administered formula grant program'';
0
c. In the definition of ``local educational agency,'' removing the 
words ``the authorizing statute'' and adding in their place the words 
``applicable statutes and regulations''; and
0
d. Removing the parenthetical authority citation at the end of the 
section.
0
156. Revise the undesignated center heading before Sec.  76.788 to read 
``Responsibilities for Notice and Information''.


Sec.  76.788  [Amended]

0
157. Amend Sec.  76.788 by:
0
a. In paragraph (c), removing the words ``the authorizing statute or 
implementing regulations for the applicable covered program'' and 
adding in their place the words ``applicable statutes or regulations''; 
and
0
b. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.900  [Amended]

0
158. Amend Sec.  76.900 by removing ``ED'' in paragraphs (a) and (b) 
and adding in its place the words ``the Department''.


Sec.  76.901  [Amended]

0
159. Amend Sec.  76.901 by:
0
a. In paragraph (a) introductory text, removing the words ``Part E'' 
and adding in their place the words ``Part D (20 U.S.C. 1234-1234h)''; 
and
0
b. Removing the parenthetical authority citation at the end of the 
section.

PART 77--DEFINITIONS THAT APPLY TO DEPARTMENT REGULATIONS

0
160. The authority citation for part 77 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3 and 3474, unless otherwise noted.

0
161. Amend Sec.  77.1 by:
0
a. Revising paragraph (b); and
0
b. In paragraph (c):
0
i. In the definition of ``Applicant'' removing the word ``requesting'' 
and adding in its place the words ``applying for'';
0
ii. In the definition of ``Award'' removing the words ``the definition 
of'';
0
iii. In the definition of ``Budget'' removing the words ``that 
recipient's'' and adding in their place ``a recipient's'';
0
iv. Adding in alphabetical order a definition for ``construction'';
0
v. Revising the definition of ``Demonstrates a rationale'';
0
vi. Removing the definitions of ``Direct grant program'' and ``Director 
of the Institute of Museum Services'';
0
vii. Revising the definition of ``Director of the National Institute of 
Education'';
0
viii. Adding in alphabetical order a definition for ``Evaluation'';
0
ix. In the definition of ``Evidence-based'' adding ``, for the purposes 
of 34 CFR part 75,'' after the word ``Evidence-based'';
0
x. Adding in alphabetical order a definition for ``Evidence-building'';
0
xi. In the definition of ``GEPA'' removing the word ``The'' and adding 
in its place the word ``the'';
0
xii. Adding in alphabetical order definitions for ``independent 
evaluation'';
0
xiii. Revising the definitions of ``minor remodeling'', ``Moderate 
evidence'', and ``National level'';

[[Page 2026]]

0
xiv. Adding in alphabetical order a definition for ``peer-reviewed 
scholarly publication'';
0
xv. In the definition of ``Project period'' removing the citation ``2 
CFR 200.77'' and adding in its place the citation ``2 CFR 200.1'';
0
xvi. Revising the definition of ``Promising evidence'';
0
xvii. Adding in alphabetical order a definition for ``quality data'';
0
xviii. Revising the definitions of ``Regional level'', ``State'', and 
``Strong evidence'';
0
xix. In the definition of ``Subgrant'' removing the words ``definition 
of ``grant or award'' '' and adding in their place the words 
``definitions of ``Grant'' or ``Award'' '';
0
xx. Revising the definition of ``What Works Clearinghouse (WWC) 
Handbooks (WWC Handbooks)''; and
0
xxi. In the definition of ``Work of art'' removing the word 
``facilities'' and adding it its place the words ``a facility''.
    The revisions and additions read as follows:


Sec.  77.1  Definitions that apply to all Department programs.

* * * * *
    (b) Unless a statute or regulation provides otherwise, the 
following definitions in 2 CFR part 200 apply to the regulations in 
subtitles A and B of this title. The following terms have the 
definitions given those terms in 2 CFR part 200.1. Phrasing given in 
parentheses references the term or terms used in title 34 that are 
consistent with the term defined in title 2.
    Contract
    Equipment
    Federal award (The terms ``award,'' ``grant,'' and ``subgrant'', as 
defined in paragraph (c) of this section, have the same meaning, 
depending on the context, as ``Federal award'' in 2 CFR 200.1.).
    Period of performance (For discretionary grants, ED uses the term 
``project period,'' as defined in paragraph (c) of this section, 
instead of ``period of performance,'' to describe the period during 
which funds can be obligated by the grantee.).
    Personal property
    Real property
    Recipient
    Subaward (The term ``subgrant,'' as defined in paragraph (c) of 
this section, has the same meaning as ``subaward'' in 2 CFR 200.1).
    Supplies
    (c) * * *
    Construction means
    (i)(A) the preparation of drawings and specifications for a 
facilities project;
    (B) erecting, building, demolishing, acquiring, renovating, major 
remodeling of, or extending a facilities project; or
    (C) inspecting and supervising the construction of a facilities 
project;
    (ii) Does not include minor remodeling.
* * * * *
    Demonstrates a rationale means that there is a key project 
component included in the project's logic model that is supported by 
citations of high-quality research or evaluation findings that suggest 
that the project component is likely to significantly improve relevant 
outcomes.
* * * * *
    Director of the Institute of Education Sciences means the Director 
of the Institute of Education Sciences or an officer or employee of the 
Institute of Education Sciences acting for the Director under a 
delegation of authority.
* * * * *
    Evaluation means an assessment using systematic data collection and 
analysis of one or more programs, policies, practices, and 
organizations intended to assess their implementation, outcomes, 
effectiveness, or efficiency.
    Evidence-building means a systematic plan for identifying and 
answering questions relevant to programs and policies through 
performance measurement, exploratory studies, or program evaluation.
* * * * *
    Independent evaluation means an evaluation of a project component 
that is designed and carried out independently of, but in coordination 
with, the entities that develop or implement the project component.
* * * * *
    Minor remodeling means minor alterations in a previously completed 
facilities project. The term also includes the extension of utility 
lines, such as water and electricity, from points beyond the confines 
of the space in which the minor remodeling is undertaken but within the 
confines of the previously completed facility. The term may also 
include related designs and drawings for these projects. The term does 
not include construction or renovation, structural alterations to 
buildings, facilities maintenance, or repairs.
    Moderate evidence means evidence of effectiveness of a key project 
component in improving a relevant outcome for a sample that overlaps 
with the populations or settings proposed to receive that component, 
based on a relevant finding from one of the following:
    (i) A practice guide prepared by the WWC using version 2.1, 3.0, 
4.0, 4.1, or 5.0 of the WWC Handbooks reporting ``strong evidence'' or 
``moderate evidence'' for the corresponding practice guide 
recommendation;
    (ii) An intervention report prepared by the WWC using version 2.1, 
3.0, 4.0, 4.1, or 5.0 of the WWC Handbooks reporting ``Tier 1 strong 
evidence'' of effectiveness or ``Tier 2 moderate evidence'' of 
effectiveness or a ``positive effect'' on a relevant outcome based on a 
sample including at least 20 students or other individuals from more 
than one site (such as a State, county, city, local educational agency 
(LEA), school, or postsecondary campus), or a ``potentially positive 
effect'' on a relevant outcome based on a sample including at least 350 
students or other individuals from more than one site (such as a State, 
county, city, LEA, school, or postsecondary campus), with no reporting 
of a ``negative effect'' or ``potentially negative effect'' on a 
relevant outcome; or
    (iii) A single experimental study or quasi-experimental design 
study reviewed and reported by the WWC most recently using version 2.1, 
3.0, 4.0, 4.1, or 5.0 of the WWC Handbooks, or otherwise assessed by 
the Department using version 5.0 of the WWC Handbook, as appropriate, 
and that--
    (A) Meets WWC standards with or without reservations;
    (B) Includes at least one statistically significant and positive 
(i.e., favorable) effect on a relevant outcome;
    (C) Includes no overriding statistically significant and negative 
effects on relevant outcomes reported in the study or in a 
corresponding WWC intervention report prepared under version 2.1, 3.0, 
4.0, 4.1, or 5.0 of the WWC Handbooks; and
    (D) Is based on a sample from more than one site (such as a State, 
county, city, LEA, school, or postsecondary campus) and includes at 
least 350 students or other individuals across sites. Multiple studies 
of the same project component that each meet the requirements in 
paragraphs (iii)(A) through (C) of this definition may together satisfy 
the requirement in this paragraph (iii)(D).
    National level means the level of scope or effectiveness of a 
project component that is able to be effective in a wide variety of 
communities, including rural and urban areas, as well as groups with 
different characteristics (such as socioeconomic status, race, ethnic, 
gender, disability, language, and migrant populations), populations, 
and settings.
* * * * *

[[Page 2027]]

    Peer-reviewed scholarly publication means a final peer-reviewed 
manuscript accepted for publication, that arises from research funded, 
either fully or partially, by Federal funds awarded through a 
Department-managed grant, contract, or other agreement. A final peer-
reviewed manuscript is defined as an author's final manuscript of a 
peer-reviewed scholarly paper accepted for publication, including all 
modifications resulting from the peer review process. The final peer-
reviewed manuscript is not the same as the final published article, 
which is defined as a publisher's authoritative copy of the paper 
including all modifications from the publishing peer review process, 
copyediting, stylistic edits, and formatting changes. However, the 
content included in both the final peer-reviewed manuscript and the 
final published article, including all findings, tables, and figures 
should be identical.
* * * * *
    Promising evidence means evidence of the effectiveness of a key 
project component in improving a relevant outcome, based on a relevant 
finding from one of the following:
    (i) A practice guide prepared by the WWC reporting ``strong 
evidence'', ``moderate evidence'', or ``promising evidence'' for the 
corresponding practice guide recommendation;
    (ii) An intervention report prepared by the WWC reporting ``Tier 1 
strong evidence'' of effectiveness, or ``Tier 2 moderate evidence'' of 
effectiveness, or ``Tier 3 promising evidence'' of effectiveness, or a 
``positive effect,'' or ``potentially positive effect'' on a relevant 
outcome, with no reporting of a ``negative effect'' or ``potentially 
negative effect'' on a relevant outcome; or
    (iii) A single study assessed by the Department, as appropriate, 
that---
    (A) Is an experimental study, a quasi-experimental design study, or 
a well-designed and well-implemented correlational study with 
statistical controls for selection bias (such as a study using 
regression methods to account for differences between a treatment group 
and a comparison group);
    (B) Includes at least one statistically significant and positive 
(i.e., favorable) effect on a relevant outcome; and
    (C) Includes no overriding statistically significant and negative 
effects on relevant outcomes reported in the study or in a 
corresponding WWC intervention report.
* * * * *
    Quality data encompasses utility, objectivity, and integrity of the 
information. ``Utility'' refers to how the data will be used, either 
for its intended use or other uses. ``Objectivity'' refers to data 
being accurate, complete, reliable, and unbiased. ``Integrity'' refers 
to the protection of data from being manipulated.
* * * * *
    Regional level means the level of scope or effectiveness of a 
project component that is able to serve a variety of communities within 
a State or multiple States, including rural and urban areas, as well as 
groups with different characteristics (such as socioeconomic status, 
race, ethnicity, gender, disability, language, and migrant status). For 
an LEA-based project, to be considered a regional-level project, a 
project component must serve students in more than one LEA, unless the 
project component is implemented in a State in which the State 
educational agency is the sole educational agency for all schools.
* * * * *
    State means any of the 50 States, the Commonwealth of Puerto Rico, 
the District of Columbia, Guam, American Samoa, the U.S. Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands.
* * * * *
    Strong evidence means evidence of the effectiveness of a key 
project component in improving a relevant outcome for a sample that 
overlaps with the populations and settings proposed to receive that 
component, based on a relevant finding from one of the following:
    (i) A practice guide prepared by the WWC using version 2.1, 3.0, 
4.0, 4.1, or 5.0 of the WWC Handbooks reporting ``strong evidence'' for 
the corresponding practice guide recommendation;
    (ii) An intervention report prepared by the WWC using version 2.1, 
3.0, 4.0, 4.1, or 5.0 of the WWC Handbooks reporting ``Tier 1 strong 
evidence'' of effectiveness or a ``positive effect'' on a relevant 
outcome based on a sample including at least 350 students or other 
individuals across more than one site (such as a State, county, city, 
local educational agency (LEA), school, or postsecondary campus), with 
no reporting of a ``negative effect'' or ``potentially negative 
effect'' on a relevant outcome; or
    (iii) A single experimental study reviewed and reported by the WWC 
most recently using version 2.1, 3.0, 4.0, 4.1, or 5.0 of the WWC 
Handbooks, or otherwise assessed by the Department using version 5.0 of 
the WWC Handbook, as appropriate, and that--
    (A) Meets WWC standards without reservations;
    (B) Includes at least one statistically significant and positive 
(i.e., favorable) effect on a relevant outcome;
    (C) Includes no overriding statistically significant and negative 
effects on relevant outcomes reported in the study or in a 
corresponding WWC intervention report prepared under version 2.1, 3.0, 
4.0, 4.1, or 5.0 of the WWC Handbooks; and
    (D) Is based on a sample from more than one site (such as a State, 
county, city, LEA, school, or postsecondary campus) and includes at 
least 350 students or other individuals across sites. Multiple studies 
of the same project component that each meet the requirements in 
paragraphs (iii)(A) through (C) of this definition may together satisfy 
the requirement in this paragraph (iii)(D).
* * * * *
    What Works Clearinghouse (WWC) Handbooks (WWC Handbooks) means the 
standards and procedures set forth in the WWC Procedures and Standards 
Handbook, Version 5.0, or in the WWC Standards Handbook, Version 4.0 or 
4.1, or in the WWC Procedures Handbook, Version 4.0 or 4.1, the WWC 
Procedures and Standards Handbook, Version 3.0 or Version 2.1 (all 
incorporated by reference, see Sec.  77.2). Study findings eligible for 
review under WWC standards can meet WWC standards without reservations, 
meet WWC standards with reservations, or not meet WWC standards. WWC 
practice guides and intervention reports include findings from 
systematic reviews of evidence as described in the WWC Handbooks 
documentation.
* * * * *
0
162. Revise Sec.  77.2 to read as follows:


Sec.  77.2  Incorporation by reference.

    Certain material is incorporated by reference into this part with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All approved incorporation by reference (IBR) 
material is available for inspection at the Department of Education 
(the Department) and the National Archives and Records Administration 
(NARA). Contact the Department at: Institute of Education Sciences, 
National Center for Education Evaluation and Regional Assistance, 550 
12th Street SW, PCP-4158, Washington, DC 20202-5900; phone: (202) 245-
6940; email: [email protected]. For information on the availability of 
this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email

[[Page 2028]]

[email protected]. The following material may be obtained from 
Institute of Education Sciences, 550 12th Street SW, Washington, DC 
20202; phone: (202) 245-6940; website: https://ies.ed.gov/ncee/wwc/Handbooks:
    (b) What Works Clearinghouse Procedures and Standards Handbook, 
Version 5.0, August 2022 (Revised December 2022); IBR approved for 
Sec.  77.1.
    (c) What Works Clearinghouse Standards Handbook, Version 4.1, 
January 2020, IBR approved for Sec.  77.1.
    (d) What Works Clearinghouse Procedures Handbook, Version 4.1, 
January 2020, IBR approved for Sec.  77.1.
    (e) What Works Clearinghouse Standards Handbook, Version 4.0, 
October 2017, IBR approved for Sec.  77.1.
    (f) What Works Clearinghouse Procedures Handbook, Version 4.0, 
October 2017, IBR approved for Sec.  77.1.
    (g) What Works Clearinghouse Procedures and Standards Handbook, 
Version 3.0, March 2014, IBR approved for Sec.  77.1.
    (h) What Works Clearinghouse Procedures and Standards Handbook, 
Version 2.1, September 2011, IBR approved for Sec.  77.1.

PART 79--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF EDUCATION 
PROGRAMS AND ACTIVITIES

0
163. The authority citation for part 79 continues to read as follows:

    Authority: 31 U.S.C. 6506; 42 U.S.C. 3334; and E.O. 12372, 
unless otherwise noted.
    Section 79.2 also issued under E.O. 12372.

0
164. In part 79, remove the word ``state'' wherever it appears and in 
its place add the word ``State'' and remove the word ``states'' where 
it appears and in its place add the word ``States''.


Sec.  79.1  [Amended]

0
165. Amend Sec.  79.1 by removing the second sentence in paragraph (a).
0
166. Amend Sec.  79.2 by:
0
a. Removing the definitions of ``Department'' and ``Secretary''.
0
b. Revising the definition of ``State''.
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


Sec.  79.2  What definitions apply to these regulations?

* * * * *
    State means any of the 50 States, the Commonwealth of Puerto Rico, 
the District of Columbia, Guam, American Samoa, the U.S. Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands.


Sec.  79.3  [Amended]

0
167. Amend Sec.  79.3 by:
0
a. In paragraph (a), removing the words ``and identifies which of these 
are subject to the requirements of section 204 of the Demonstration 
Cities and Metropolitan Development Act'';
0
b. In paragraph (c)(6), removing the words ``(e.g., block grants under 
Chapter 2 of the Education Consolidation and Improvement Act of 
1981)''; and
    c. In paragraph (c)(7), removing the words ``development national'' 
and adding in their place the words ``development that is national''.


Sec.  79.4  [Amended]

0
168. Amend Sec.  79.4 in paragraph (b)(3) by removing the word 
``official's'' and adding in its place the word ``officials' ''.


Sec.  79.5  [Amended]

0
169. Amend Sec.  79.5 by removing the word ``assure'' and adding in its 
place the word ``ensure''.


Sec.  79.6  [Amended]

0
170. Amend Sec.  79.6 by removing the word ``state's'' and adding in 
its place the word ``State's''.


Sec.  79.8  [Amended]

0
171. Amend Sec.  79.8 by removing paragraph (d).


Sec.  79.9  [Amended]

0
172. Amend Sec.  79.9 in paragraph (e) by removing the words ``of this 
part''.


Sec.  79.10  [Amended]

0
173. Amend Sec.  79.10 in paragraph (a)(2) by removing the words ``a 
mutually agreeable solution with the state process'' and adding in 
their place the words ``an agreement with the State''.

PART 299--GENERAL PROVISIONS

0
174. The authority citation for part 299 is revised to read as follows:

    Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
    Section 299.4 also issued under 20 U.S.C. 7821 and 7823.
    Section 299.5 also issued under 20 U.S.C. 7428(c), 7801(11), 
7901.
    Section 299.6 also issued under 20 U.S.C. 7881.
    Section 299.7 also issued under 20 U.S.C. 7881.
    Section 299.8 also issued under 20 U.S.C. 7881.
    Section 299.9 also issued under 20 U.S.C. 7881.
    Section 299.10 also issued under 20 U.S.C. 7881.
    Section 299.11 also issued under 20 U.S.C. 7881.
    Section 299.12 also issued under 20 U.S.C. 7881(a)(3)(B).
    Section 299.13 also issued under 20 U.S.C. 7844(a)(3)(C), 7883.
    Section 299.14 also issued under 20 U.S.C. 7844(a)(3)(C), 7883.
    Section 299.15 also issued under 20 U.S.C. 7844(a)(3)(C), 7883.
    Section 299.16 also issued under 20 U.S.C. 7883.
    Section 299.17 also issued under 20 U.S.C. 7883.
    Section 299.18 issued under 20 U.S.C. 6320(e), 7882, and 7883.
    Section 299.19 issued under 20 U.S.C. 6320(e) and 7882(a).
    Section 299.20 issued under 20 U.S.C. 6320(b)(6) and (e), 
7881(c)(6), 7882, and 7883.
    Section 299.21 issued under 20 U.S.C. 7884(a)(1).
    Section 299.22 issued under 20 U.S.C. 7884(a)(1).
    Section 299.23 issued under 20 U.S.C. 7884(a)(1).
    Section 299.24 issued under 20 U.S.C. 7884(a)(1).
    Section 299.25 issued under 20 U.S.C. 7884(a)(1).
    Section 299.26 issued under 20 U.S.C. 7884(a)(1).
    Section 299.27 issued under 20 U.S.C. 7884(a)(2).
    Section 299.28 issued under 20 U.S.C. 7884(b).


Sec.  299.6  [Amended]

0
175. Amend Sec.  299.6 by removing paragraph (c).


Sec.  Sec.  299.7 through 299.13  [Redesignated as Sec. Sec.  299.9 
through 299.15]

0
176. Redesignate Sec. Sec.  299.7 through 299.13 as Sec. Sec.  299.9 
through 299.15.
0
177. Add new Sec. Sec.  299.7 and 299.8 to subpart E to read as 
follows:


Sec.  299.7  What are the requirements for consultation?

    (a)(1) In order to have timely and meaningful consultation, an 
agency, consortium, or entity must--
    (i) Consult with appropriate private school officials during the 
design and development of the agency, consortium, or entity's program 
for eligible private school children and their teachers and other 
educational personnel; and
    (ii) Consult before the agency, consortium, or entity makes any 
decision that affects the opportunities of eligible private school 
children and their teachers and other educational personnel to 
participate in the applicable program.
    (2) Such consultation must continue throughout the implementation 
and assessment of equitable services.
    (b) Both the agency, consortium, or entity and private school 
officials must have the goal of reaching agreement on how to provide 
equitable and effective programs for private school children and their 
teachers and other educational personnel, including, at a minimum, on 
issues such as--

[[Page 2029]]

    (1) How the agency, consortium, or entity will identify the needs 
of eligible private school children and their teachers and other 
educational personnel;
    (2) What services the agency, consortium, or entity will offer to 
eligible private school children and their teachers and other 
educational personnel;
    (3) How and when the agency, consortium, or entity will make 
decisions about the delivery of services;
    (4) How, where, and by whom the agency, consortium, or entity will 
provide services to eligible private school children and their teachers 
and other educational personnel;
    (5) How the agency, consortium, or entity will assess the services 
and use the results of the assessment to improve those services;
    (6) Whether the agency, consortium, or entity will provide services 
directly or through a separate government agency, consortium, entity, 
or third-party contractor;
    (7) The size and scope of the equitable services that the agency, 
consortium, or entity will provide to eligible private school children 
and their teachers and other educational personnel, the amount of funds 
available for those services, and how that amount is determined; and
    (8) Whether to provide equitable services to eligible private 
school children and their teachers and other educational personnel--
    (i) On a school-by-school basis;
    (ii) By creating a pool or pools of funds with all the funds 
allocated under the applicable program based on the amount of funding 
allocated for equitable services to two or more participating private 
schools served by the same agency, consortium, or entity, provided that 
all the affected private schools agree to receive services in this way; 
or
    (iii) By creating a pool or pools of funds with all the funds 
allocated under the applicable program based on the amount of funding 
allocated for equitable services to two or more participating private 
schools served across multiple agencies, consortia, or entities, 
provided that all the affected private schools agree to receive 
services in this way.
    (c)(1) Consultation must include--
    (i) A discussion of service delivery mechanisms the agency, 
consortium, or entity can use to provide equitable services to eligible 
private school children and their teachers and other educational 
personnel; and
    (ii) A thorough consideration and analysis of the views of private 
school officials on the provision of services through a contract with a 
third-party provider.
    (2) If the agency, consortium, or entity disagrees with the views 
of private school officials on the provision of services through a 
contract, the agency, consortium, or entity must provide in writing to 
the private school officials the reasons why the agency, consortium, or 
entity chooses not to use a contractor.
    (d)(1) The agency, consortium, or entity must maintain in its 
records and provide to the SEA a written affirmation, signed by 
officials of each private school with participating children or 
appropriate private school representatives, that the required 
consultation has occurred. The written affirmation shall provide the 
option for private school officials to indicate such officials' belief 
that timely and meaningful consultation has not occurred or that the 
program design is not equitable with respect to eligible private school 
children.
    (2) If private school officials do not provide the affirmations 
within a reasonable period of time, the agency, consortium, or entity 
must submit to the SEA documentation that the required consultation 
occurred.
    (e) A private school official has the right to complain to the SEA 
that the agency, consortium, or entity did not--
    (1) Engage in timely and meaningful consultation;
    (2) Give due consideration to the views of the private school 
official; or
    (3) Make a decision that treats the private school or its students 
equitably as required by this section.


Sec.  299.8  Use of Private School Personnel.

    A grantee or subgrantee may use program funds to pay for the 
services of an employee of a private school if:
    (a) The employee performs the services outside of his or her 
regular hours of duty; and
    (b) The employee performs the services under public supervision and 
control.
0
178. Transfer newly redesignated Sec.  299.12 from subpart F to subpart 
E and revise it to read as follows:


Sec.  299.12  Ombudsman.

    To help ensure equity for eligible private school children, 
teachers, and other educational personnel, an SEA must direct the 
ombudsman designated under section 1117 of the ESEA and Sec.  200.68 to 
monitor and enforce the requirements in Sec. Sec.  299.6-299.11.
0
179. Add Sec. Sec.  299.16 and 299.17 to subpart F to read as follows:


Sec.  299.16  What must an SEA include in its written resolution of a 
complaint?

    An SEA must include the following in its written resolution of a 
complaint under an applicable program:
    (a) A description of applicable statutory and regulatory 
requirements.
    (b) A description of the procedural history of the complaint.
    (c) Findings of fact supported by citation, including page numbers, 
to supporting documents under paragraph (g) of this section.
    (d) Legal analysis and conclusions.
    (e) Corrective actions, if applicable.
    (f) A statement of applicable appeal rights.
    (g) A statement regarding the State's determination about whether 
it will provide services.
    (h) All documents reviewed by the SEA in reaching its decision, 
paginated consecutively.


Sec.  299.17  What must a party seeking to appeal an SEA's written 
resolution of a complaint or failure to resolve a complaint in 45 days 
include in its appeal request?

    (a) A party appealing an SEA's written resolution of a complaint, 
or failure to resolve a complaint, must include the following in its 
request within 30 days of either the SEA's resolution or the 45-day 
time limit:
    (i) A clear and concise statement of the parts of the SEA's 
decision being appealed, if applicable.
    (ii) The legal and factual basis for the appeal.
    (iii) A copy of the complaint filed with the SEA.
    (iv) A copy of the SEA's written resolution of the complaint being 
appealed, if one is available, including all supporting documentation 
required under Sec.  299.16(h).
    (v) Any supporting documentation not included as part of the SEA's 
written resolution of the complaint being appealed.
    (b) Unless substantiating documentation identified in paragraph (a) 
of this section is provided to the Department, the appeal is not 
considered complete. Statutory or regulatory time limits are stayed 
until the appeal is complete as determined by the Department.
    (c) In resolving the appeal, if the Department determines that 
additional information is necessary, all applicable statutory or 
regulatory time limits are stayed pending receipt of that information.
0
180. Add subpart G part 299 to read as follows:
Subpart G--Procedures for Bypass
Sec.
299.18 Applicability.

[[Page 2030]]

299.19 Bypass--general.
299.20 Requesting a bypass.
299.21 Notice of intent to implement a bypass.
299.22 Filing requirements.
299.23 Bypass procedures.
299.24 Appointment and functions of a hearing officer.
299.25 Hearing procedures.
299.26 Decision.
299.27 Judicial review.
299.28 Continuation of a bypass.

Subpart G--Procedures for Bypass


Sec.  299.18  Applicability.

    The regulations in this subpart apply to part A of Title I and 
applicable programs under section 8501(b)(1) of the ESEA under which 
the Secretary is authorized to waive the requirements for providing 
services to private school children, teachers or other educational 
personnel, and families, as applicable, and to implement a bypass.


Sec.  299.19  Bypass--general.

    (a) The Secretary arranges for a bypass if--
    (1) An agency, consortium, or entity is prohibited by law from 
providing for the participation in programs of children enrolled in, or 
teachers or other educational personnel from, private elementary and 
secondary schools, on an equitable basis; or
    (2) The Secretary determines that the agency, consortium, or entity 
has substantially failed, or is unwilling, to provide for that 
participation as required by section 1117 or 8501 of the ESEA, as 
applicable.
    (b) If the Secretary determines that a bypass is appropriate after 
following the requirements in Sec. Sec.  299.21 through 299.26, the 
Secretary--
    (1) Waives the requirements under section 1117 or 8501 of the ESEA, 
as applicable, for the agency, consortium, or entity; and
    (2) Arranges for the provision of equitable services to those 
children, teachers or other educational personnel, and families, as 
applicable, through arrangements subject to the requirements of section 
1117 or 8501 of the ESEA, as applicable, and sections 8503 and 8504 of 
the ESEA.


Sec.  299.20  Requesting a bypass.

    (a) A private school official may request a bypass of an agency, 
consortium, or entity under the following circumstances:
    (1) The private school official has--
    (i) Filed a complaint with the State educational agency (SEA) under 
section 1117(b)(6)(A)-(B) or section 8501(c)(6)(A)-(B) of the ESEA and 
Sec. Sec.  299.13 through 299.17 that an agency, consortium, or entity 
other than the SEA has substantially failed or is unwilling to provide 
equitable services;
    (ii) Requested that the SEA provide equitable services on behalf of 
the agency, consortium, or entity under section 1117(b)(6)(C) or 
section 8501(c)(6)(C) of the ESEA; and
    (iii) Submitted an appeal of the SEA's resolution of the complaint 
filed under this paragraph (a)(1) to the Secretary under section 
8503(b) of the ESEA and Sec.  299.17.
    (2) If an SEA has substantially failed, or is unwilling, to provide 
equitable services, the private school official has--
    (i) Filed a complaint with the SEA under section 8503(a) of the 
ESEA and Sec. Sec.  299.13 through 299.16; and
    (ii) Submitted an appeal to the Secretary under section 8503(b) of 
the ESEA and Sec.  299.17 of the SEA's resolution of the complaint 
filed under paragraph (a)(1) of this section in which the private 
school official requests a bypass.
    (b) An agency, consortium, or entity may request that the Secretary 
implement a bypass if the agency, consortium, or entity is prohibited 
by law from providing equitable services under section 1117 or section 
8501 of the ESEA.


Sec.  299.21  Notice of intent to implement a bypass.

    (a) Before taking any final action to implement a bypass, the 
Secretary provides the affected agency, consortium, or entity with 
written notice.
    (b) In the written notice, the Secretary--
    (1) States the reasons for the proposed bypass in sufficient detail 
to allow the agency, consortium, or entity to respond;
    (2) Cites the requirement that is the basis for the alleged failure 
to comply; and
    (3) Advises the agency, consortium, or entity that it--
    (i) Has a deadline (which shall not be fewer than 45 days after 
receiving the written notice) to submit written objections to the 
proposed bypass; and
    (ii) May request in writing the opportunity for a hearing to show 
cause why the Secretary should not implement the bypass.


Sec.  299.22  Filing requirements.

    (a) Any written submission under Sec.  299.21 must be filed by hand 
delivery, mail, or email.
    (b) The filing date for a written submission is the date on which 
the document is--
    (1) Hand delivered;
    (2) Mailed; or
    (3) Emailed.


Sec.  299.23  Bypass procedures.

    Sections 299.24 through 299.26 describe the procedures that the 
Secretary uses in conducting a show-cause hearing. The hearing officer 
may modify the procedures for a particular case if all parties agree 
that the modification is appropriate.


Sec.  299.24  Appointment and functions of a hearing officer.

    (a) If an agency, consortium, or entity requests a hearing to show 
cause why the Secretary should not implement a bypass, the Secretary 
appoints a hearing officer and notifies appropriate representatives of 
the affected private school children, teachers or other educational 
personnel, or families that they may participate in the hearing.
    (b) The hearing officer has no authority to require or conduct 
discovery or to rule on the validity of any statute or regulation.
    (c) The hearing officer notifies the agency, consortium, or entity 
and representatives of the private school children, teachers or other 
educational personnel, or families of the time and place of the 
hearing.


Sec.  299.25  Hearing procedures.

    (a) The following procedures apply to a show-cause hearing 
regarding implementation of a bypass:
    (1) The hearing officer arranges for a transcript to be created.
    (2) The agency, consortium, or entity and representatives of the 
private school children, teachers or other educational personnel, or 
families each may--
    (i) Be represented by legal counsel; and
    (ii) Submit oral or written evidence and arguments at the hearing.
    (b) Within 10 days after the hearing, the hearing officer--
    (1) Indicates that a decision will be issued based on the existing 
record; or
    (2) Requests further information from the agency, consortium, or 
entity, representatives of the private school children, teachers or 
other educational personnel, or families, or Department officials.


Sec.  299.26  Decision.

    (a)(1) Within 120 days after the record of a show-cause hearing is 
closed, the hearing officer issues a written decision on whether the 
Secretary should implement a bypass.
    (2) The hearing officer sends copies of the decision to the agency, 
consortium, or entity; representatives of the private school children, 
teachers or other

[[Page 2031]]

educational personnel, or families; and the Secretary.
    (b) Within 30 days after receiving the hearing officer's decision, 
the agency, consortium, or entity, and representatives of the private 
school children, teachers or other educational personnel, or families 
may each submit to the Secretary written comments on the decision.
    (c) The Secretary may adopt, reverse, modify, or remand the hearing 
officer's decision.


Sec.  299.27  Judicial review.

    If an agency, consortium, or entity is dissatisfied with the 
Secretary's final action after a proceeding under Sec. Sec.  299.13 
through 299.26, it may, within 60 days after receiving notice of that 
action, file a petition for review with the United States Court of 
Appeals for the circuit in which it is located.


Sec.  299.28  Continuation of a bypass.

    The Secretary continues a bypass until the Secretary determines, in 
consultation with the relevant agency, consortium, or entity and 
representatives of the affected private school children, teachers or 
other educational personnel, or families, that there will no longer be 
any failure or inability on the part of the agency, consortium, or 
entity to meet the requirements for providing services.

[FR Doc. 2023-27682 Filed 1-10-24; 8:45 am]
BILLING CODE 4000-01-P