Education Department General Administrative Regulations and Related Regulatory Provisions, 70300-70346 [2024-17239]

Agencies

• DEPARTMENT OF EDUCATION

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



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Vol. 89

Thursday,

No. 168

August 29, 2024

Part IV





 Department of Education





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





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

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

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DEPARTMENT OF EDUCATION

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

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


Education Department General Administrative Regulations and 
Related Regulatory Provisions

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

ACTION: Final regulations.

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

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

FOR FURTHER INFORMATION CONTACT: Kelly Terpak, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 4C212, Washington, DC 20202. 
Telephone: (202) 245-6776. Email: [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 amend parts 75, 76, 77, 79, and 299 of title 34 of the 
Code of Federal Regulations.

Summary of Major Provisions of This Regulatory Action

    The final EDGAR provisions:
     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 revise the tiers of evidence to 
incorporate and generally parallel those in the ESEA and specify the 
procedures used to give special consideration to an application 
supported by evidence in Sec.  75.226.
     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 the 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 or other conceptual 
framework supporting their proposed project under Sec.  75.112;
    [cir] Replacing the definition in Sec.  75.225 of ``novice 
applicant'' with a broader definition of ``new potential grantee,'' to 
allow additional flexibility to give special consideration to such 
grantees and to increase equity in the applicant pool and recipients of 
Department funds;
    [cir] Allowing the Department to require a grantee to conduct an 
independent evaluation of its project and make the results of such an 
evaluation public under Sec.  75.590;
    [cir] Defining ``independent evaluation'' under Sec.  77.1(c);
    [cir] Clarifying for the first time that, under Sec.  76.50, where 
not prohibited by law, regulation, or the terms and conditions of the 
grant award, State agencies have subgranting authority;
    [cir] Allowing States flexibility under Sec.  76.140 to adopt a 
process for amending a State plan that is distinct from the process 
used for initial approval; and
    [cir] Clarifying the hearing and appeal process under Sec.  76.401 
for subgrants of State-administered formula grant programs, including 
by clarifying that aggrieved applicants must allege that a specific 
Federal or State statute or regulation has been violated.
    Costs and Benefits: As further detailed in the Regulatory Impact 
Analysis section, the benefits of these final regulations will outweigh 
any associated costs to States, local educational agencies (LEAs), and 
other Department applicants and grantees. The final regulations will, 
in part, update terminology to align with applicable statutes and 
regulations. Many of the adjustments will support the Department in 
selecting high-quality grantees and those grantees in ensuring the 
effectiveness and continuous improvement of their projects. These 
changes include, for example, adding selection criteria that apply only 
to programs that elect to use them, as announced in a notice inviting 
applications (NIA), and clarifying the language in selection criteria 
for applicants and peer reviewers. Please refer to the Regulatory 
Impact Analysis section of this document for a more detailed discussion 
of costs and benefits. The Administrator of the Office of Information 
and Regulatory Affairs (OIRA) has determined this to be a significant 
regulatory action under Executive Order 12866, as amended most recently 
by Executive Order 14094, and therefore has been subject to review by 
OIRA.
    Supplementary Information--General: On January 11, 2024, the 
Secretary published a Notice of Proposed Rulemaking (NPRM) for these 
amendments in the Federal Register (89 FR 1982).
    There are differences between some of the selection criteria and 
definitions proposed in the NPRM and those established in these final 
regulations, as discussed in the Analysis of Comments and Changes 
section below.
    We recognize that the Office of Management and Budget (OMB) updated 
the Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements (the Uniform Guidance) on April 22, 2024 (89 FR 30046). 
Many of the changes in EDGAR align with the goals behind the changes in 
the Uniform Guidance, and the Department will continue to review EDGAR, 
as needed, to ensure alignment with the Uniform Guidance.
    Incorporation by Reference: Section 75.616 incorporates by 
reference the American Society of Heating,

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Refrigerating, and Air Conditioning Engineers (ASHRAE) Standard 90.1-
2022. ASHRAE is included in the construction section focused on energy 
conservation and has been included in EDGAR for more than 30 years. The 
ASHRAE standards are the industry leading standards and are relevant to 
the construction regulations in this section of EDGAR because grantees 
need to know the current standard with which they must comply. Standard 
90.1 has been a benchmark for commercial building energy codes in the 
United States, and a key basis for codes and standards around the 
world, for almost half a century. This standard provides the minimum 
requirements for energy-efficient design of most sites and buildings, 
except low-rise residential buildings. It offers, in detail, the 
minimum energy efficiency requirements for design and construction of 
new sites and buildings and their systems, new portions of buildings 
and their systems, and new systems and equipment in existing buildings, 
as well as criteria for determining compliance with these requirements. 
It is an indispensable reference for engineers and other professionals 
involved in design of buildings, sites, and building systems. This 
standard is available to the public at www.ashrae.org/technical-resources/bookstore/standard-90-1, and a read-only version is available 
at https://www.ashrae.org/technical-resources/standards-and-guidelines/read-only-versions-of-ashrae-standards. This final rule also will 
remove outdated versions of the ASHRAE standard from Sec.  75.616.
    Section 77.1 incorporates by reference the What Works Clearinghouse 
(WWC) Procedures and Standards Handbook, Version 5.0. The purpose of 
the WWC is to review and summarize the quality of existing research in 
educational programs, products, practices, and policies. We incorporate 
the Handbook, which provides a detailed description of the standards 
and procedures of the WWC, by reference. The Handbook is available to 
interested parties at https://ies.ed.gov/ncee/wwc/Handbooks. As the 
Handbook is available as a free download, it is reasonably available to 
the public. The Version 5.0 Handbook includes a new Chapter I, Overview 
of the What Works Clearinghouse and Its Procedures and Standards and 
aligns the flow of content with the study review process. Additionally, 
it no longer allows for topic-specific customization of the standards, 
aligns its effectiveness ratings with the evidence definitions in Sec.  
77.1(c), and describes other protocols for specific study designs. More 
details are available at 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.
    Public Comment: In response to our invitation in the NPRM, 28 
unique parties submitted comments on the proposed regulations. We group 
major issues according to subject.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the regulations since publication of the NPRM 
follows. Generally, we do not address technical or minor comments or 
comments that are not relevant to the proposed changes in the NPRM.

General Comments

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

34 CFR Part 75--Direct Grant Programs

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

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

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

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

[[Page 70305]]

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

[[Page 70306]]

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

[[Page 70307]]

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

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

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

[[Page 70308]]

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

[[Page 70309]]

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

[[Page 70310]]

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

Part 76--State-Administered Formula Grant Programs

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

[[Page 70311]]

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

[[Page 70312]]

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

Part 77--Definitions That Apply to Department Regulations

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

[[Page 70313]]

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

Part 299--General Provisions

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

Other Comments

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

[[Page 70314]]

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

Executive Orders 12866, 13563, and 14094

Regulatory Impact Analysis

    Under Executive Order 12866, OIRA must determine whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by OMB. 
Section 3(f) of Executive Order 12866, as amended by Executive Order 
14094, defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $200 million or more 
(as of 2023 but adjusted every 3 years by the Administrator of the 
Office of Information and Regulatory Affairs (OIRA) of OMB for changes 
in gross domestic product), or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
Tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities, or the principles 
stated in the Executive order, as specifically authorized in a timely 
manner by the Administrator of OIRA in each case.
    This regulatory action is a significant regulatory action subject 
to review by OMB under section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094. We have assessed the potential costs 
and benefits, both quantitative and qualitative, of this regulatory 
action and have determined that the benefits would justify the costs.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' OIRA has emphasized 
that these techniques may include ``identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes.''
    We are issuing these regulations only on a reasoned determination 
that their benefits justify their costs. In choosing among alternative 
regulatory approaches, we selected those approaches that maximize net 
benefits. Based on an analysis of anticipated costs and benefits, we 
believe that these regulations are consistent with the principles in 
Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, territorial, and Tribal governments 
in the exercise of their governmental functions.

Costs and Benefits

    We have reviewed the changes in these final regulations in 
accordance with Executive Order 12866, as amended by Executive Order 
14094, and do not believe that these changes would generate a 
considerable increase in burden. In total, we estimate that the changes 
in these final regulations would result in a net increase in burden of 
approximately $100 annually with transfers of $109.8 million per year 
at a 7% discount rate or $113.9 million per year at 3% discount rate. 
Most of the changes in these final regulations are technical in nature 
and are unlikely to affect the administration of programs or allocation 
of benefits in any substantial way. However, given the large number of 
edits herein, we discuss each provision, other than those for which we 
are updating citations or cross-references and making other technical 
edits, and its likely costs and benefits below.
    Unless otherwise specified, the Department's model uses mean hourly 
wages for personnel employed in the education sector as reported by the 
Bureau of Labor Statistics \1\ (BLS) and a loading factor of 2.0 to 
account for the employer cost of employee compensation and indirect 
costs (e.g., physical space, equipment, technology costs). When 
appropriate, the Department identifies the specific occupation used by 
the BLS in its tables to support the reader's analysis. The Department 
assumes that wage rates

[[Page 70315]]

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

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

    Changes to Sec. Sec.  75.1 and 75.200 simply combine currently 
existing text into a single section and clarify terms used. We do not 
expect that these changes will have any quantifiable cost, and the 
changes may benefit the Department and general public by improving the 
clarity of the regulations.
    The deletion of Sec.  75.4 as unnecessary and redundant is unlikely 
to generate any quantifiable cost and may benefit the Department and 
general public by improving the clarity of the regulations.
    Changes to Sec.  75.60, which delete an outdated table and clarify 
a definition, are unlikely to generate any quantifiable cost and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Changes to Sec.  75.101, which clarify what is in a notice and an 
application package, are unlikely to generate any meaningful cost and 
may benefit the Department and general public by improving the clarity 
of the regulations.
    Changes to Sec. Sec.  75.102 and 75.104, which move paragraph (b) 
of Sec.  75.102 to Sec.  75.104, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.105, which add reference to an already existing 
exemption to the public comment period to the regulations, are unlikely 
to generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Changes to Sec.  75.109, which eliminate the requirement that an 
applicant submit two copies of any paper applications in addition to 
the original, may reduce costs for applicants that submit paper 
applications. However, those savings are likely to be minimal, given 
the small incremental cost of photocopies and the low number of paper 
applications the Department receives in any year. At most, we estimate 
that it would save applicants $7.50 per application, assuming a 75-page 
application photocopied at a rate of $0.05 per page. Assuming an 
average of 50 paper applications submitted per year, this change would 
result in an annual savings of approximately $375.
    Changes to Sec.  75.110, which more clearly specify how applicants 
must report against program measures and project-specific performance 
measures, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Changes to Sec.  75.112, which allow the Secretary to require 
applicants to submit a logic model or other conceptual framework, are 
unlikely to generate any quantifiable costs or benefits. Many grant 
competitions already include this requirement and, to the extent that 
it is included in additional competitions in the future, we do not 
believe that it would create a substantial burden for applicants, 
because we assume that applicants in those programs would likely 
already have conceptualized an implicit logic model or conceptual 
framework for their applications and, therefore, would experience only 
minimal paperwork burden associated with memorializing it in their 
applications.
    Changes to Sec.  75.127, which add the term ``partnership'' and 
clarify that all members of a group application must be eligible 
entities, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    The deletion of Sec. Sec.  75.190-75.192 as duplicative is unlikely 
to generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Changes to Sec.  75.201, which refer to selection ``factors'' as 
well as ``criteria'' are unlikely to generate any quantifiable costs 
and may benefit the Department and general public by improving the 
clarity of the regulations.
    Changes to Sec.  75.210, which would clarify word choice, update 
language based on past experience in using the current selection 
criteria and factors, and add additional factors such as those that 
include a focus on the use of data, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.216, which remove paragraphs (a) and (d) and 
revise the section heading, are unlikely to generate any quantifiable 
costs and may benefit the Department and general public by improving 
the clarity of the regulations and providing the Department additional 
flexibility in considering applications.
    Changes to Sec.  75.217, which remove the word ``solely'' and add 
``and any competitive preference points,'' are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.219, which reorganize the section to improve 
clarity, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Changes to Sec.  75.221, which revise the section to improve 
clarity and remove unnecessary language, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.222, which update the mailing address for 
unsolicited applications, are unlikely to generate any quantifiable 
costs and may benefit the Department and general public by improving 
the clarity of the regulations.
    The changes to Sec.  75.225 change the current term ``novice 
applicant'' to ``new potential grantee'' and revise the definition to 
provide greater flexibility to the Department in classifying applicants 
as ``new potential grantees.'' We believe that this change may result 
in a number of changes in the behavior of both Department staff and 
applicants. First, we believe that the additional flexibility in the 
revised section will increase the number of competitions in which Sec.  
75.225 is used. Second, we believe that it may result in additional 
applicants submitting applications for competitions in which Sec.  
75.225 is used, increasing access to Federal resources and which may 
serve to strengthen the quality of the applicant pool. Finally, we 
believe that the additional applicants, in conjunction with any 
absolute or competitive preference associated with the revised section, 
may shift at least some of the Department's grants among eligible 
entities. However, because this revised standard will neither expand 
nor restrict the universe of eligible entities for any Department grant 
program, and since application submission and participation in our 
discretionary grant programs is completely voluntary, we do not think 
that it would be appropriate to characterize any increased 
participation in our grant competitions as costs associated with this 
regulation.
    Changes to Sec.  75.226, which provide the Secretary with the 
authority to give special consideration to an application that 
demonstrates a rationale, are unlikely to generate any quantifiable 
costs or benefits. Many grant competitions already ask applicants to 
discuss the extent to which they can demonstrate a rationale for their 
proposed projects through a selection factor and, to the extent that it 
is included in additional competitions in the future, we do not believe 
that it would create a substantial burden for applicants because we 
assume that applicants in those programs would likely already have 
conceived an implicit logic model or other conceptual framework for 
their applications and would, therefore, experience only minimal 
paperwork burden associated with memorializing it in their

[[Page 70316]]

applications to address the requirements of the demonstrates a 
rationale level of evidence.
    Changes to Sec.  75.227 provide the Secretary with the authority to 
give special consideration to rural applicants. The language in this 
section mirrors language adopted by the Department in the 
Administrative Priorities for Discretionary Grants Programs 
(Administrative Priorities), published in the Federal Register on March 
9, 2020 (85 FR 13640), and we are codifying this language in EDGAR. As 
such, these changes will not generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity and 
transparency of the Department's authority to provide special 
consideration to particular applicants.
    Changes to Sec.  75.234, which replace the word ``special'' with 
the word ``specific,'' are unlikely to generate any quantifiable costs 
and may benefit the Department and general public by improving the 
clarity of the regulations.
    Changes to Sec.  75.250, which update the heading and clarify that 
an extension of the project period is authorized by EDGAR only if the 
applicable statutes and regulations permit it, are unlikely to generate 
any quantifiable costs and may benefit the Department and general 
public by improving the clarity of the regulations.
    Changes to Sec.  75.253, which allow a grantee whose request for a 
non-competitive continuation award has been denied to request 
reconsideration, could generate costs to affected grantees and the 
Department. In general, we do not deny a large number of non-competing 
continuation awards and, if that does happen, grantees are often aware 
of the likelihood of the decision well in advance and often cite no 
concerns if they do not receive a continuation award. Therefore, we do 
not believe that many grantees would qualify for the redress, and we do 
not believe that the few who may qualify would exercise the right. 
However, for the purpose of this analysis, we assume that we would 
process 10 such requests annually, which we believe is an overestimate 
of the likely incidence in order to capture the high end of potential 
costs. For each request, we assume a project director earning a loaded 
wage rate of $112.81 per hour, on average, would spend 24 hours 
drafting and submitting the request. At the Department, a program 
officer at the GS-13/1 level (loaded wage rate of $61.96 per hour) 
would spend approximately 8 hours reviewing each request, along with 2 
hours for their supervisor at the GS-14/1 level (loaded wage rate of 
$72.69 per hour) to review. We also assume that a Department attorney 
at the GS-14/1 level (loaded wage rate of $72.69 per hour) would spend 
approximately 4 hours reviewing each request. In sum, we estimate that 
this provision would generate an additional cost of approximately 
$27,074 for grantees and $9,318 for the Department per year. In total, 
we estimate an additional cost of $36,392 per year.
    The addition of a new Sec.  75.254 gives the Secretary the 
authority to approve data collection periods. The language in this 
section is aligned with this previous authority under Sec.  75.250(b) 
as well the Administrative Priorities and is just codifying this 
language in EDGAR. As such, these changes will not generate any 
quantifiable costs and may benefit the Department and general public by 
allowing for data collection periods that give grantees additional time 
to collect data to measure project impact.
    Changes to Sec.  75.261, which remove references to obsolete 
programs and make other edits, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.263, which remove the clause ``notwithstanding 
any requirement in 2 CFR part 200,'' are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec. Sec.  75.560-75.564, which align these sections 
with the Uniform Guidance and provide additional information on the 
application of indirect cost rates, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.590, which allow the Department to require the 
use of an independent evaluation in a program and include a 
confidentiality provision, would likely generate transfers for affected 
grantees. Specifically, we assume that grantees that are required to 
use an independent evaluator will transfer grant funds from their 
currently designated purpose (such as to defray the costs of an 
internal evaluation) to pay for an independent evaluation. We note, 
however, that we do not believe that these transfers would 
substantially affect the level of support that beneficiaries of our 
competitive grant programs receive; the grantees would have spent a 
certain percentage of their awards on evaluation, whether such 
evaluation is conducted by an internal or external entity. We believe 
that the most likely programs in which the Department would require an 
independent evaluation are those that include an expectation of a 
rigorous evaluation using selection factors related to What Works 
Clearinghouse evidence standards in project evaluations. From 2014 
through 2022, we included such selection factors in 18 competitions 
(excluding programs that have their own independent evaluation 
requirements, such as Education Innovation and Research and its 
predecessor, Investing in Innovation, because these programs are 
already included in the baseline), with a combined average of $194.8 
million in awards per year. Assuming that evaluation costs in these 
programs average approximately 15 percent of total project costs, we 
estimate that the evaluations for these competitions would cost 
approximately $29,227,000 in Year 1.

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

    Assuming equal-sized cohorts of new grants per year, we estimate 
that this total would increase through Year 5, when it would plateau at 
$146,135,000 per year. To the extent that grantees already use 
evaluators that would meet the requirements for an independent 
evaluation, this would represent an overestimate of the transfers 
associated with this provision.
    Changes to Sec.  75.591, which clarify how grantees cooperate with 
Federal research activities, are unlikely to generate any quantifiable 
costs and may benefit the Department and general public by improving 
the clarity of the regulations.
    Changes to Sec. Sec.  75.600-75.615 and Sec. Sec.  75.618-75.619, 
which restructure the sections on construction to improve the flow of 
the information, update citations, and include green building concepts 
that are optional and are for consideration in construction are

[[Page 70317]]

unlikely to generate any quantifiable costs and may benefit the 
Department and general public by improving the clarity of the 
regulations.
    Changes to Sec.  75.620, which update language regarding Federal 
endorsement, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    The addition of Sec.  75.623 requires certain grantees to submit 
final versions of Department-funded research publications to ERIC so 
that they are publicly available, aligning with the Department's 
September 2023 Plan for Public Access: Improving Access to Results of 
Federally Funded Scientific Research (Public Access Plan). Given that 
submission of the files would be a required grant activity, we do not 
anticipate that the requirement will generate any additional costs for 
grantees. To the extent that submissions would generate additional 
burdens, they would likely be minimal and would be properly considered 
transfers from support of other grant-related activities. Such 
transfers would be de minimis. Further, the addition of this 
requirement would generate benefits for the general public by 
increasing the availability of publicly supported research.
    Changes to Sec.  75.700 add existing Executive orders, which 
grantees must already comply with, to the list of authorities with 
which grantees must comply. These changes are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  75.708, which allow the Secretary to provide 
notice authorizing subgrants through the Federal Register or another 
reasonable means, may generate minimal efficiency returns to the 
Department by reducing burdens and costs associated with preparing a 
notice for publication in the Federal Register. However, we estimate 
that staff time to draft and compile these notices will likely remain 
unchanged and, therefore, do not estimate any changes in burden 
associated with this provision.
    Changes to Sec.  75.720 allow the Secretary to require grantees to 
publish their annual performance reports on a public-facing website, 
accounting for privacy and proprietary business information. Given that 
publishing their reports would be a required grant activity, we do not 
anticipate that the requirement will generate any additional costs for 
grantees. To the extent that the publishing of the report would 
generate additional burdens, they would likely be minimal and would be 
properly considered transfers from support of other grant-related 
activities. However, we believe that, to the extent that the 
requirement results in a shift in activities by grantees, it is 
possible that there would be minimal transfers. We estimate that it 
would take a web developer approximately 30 minutes to post a copy of 
the grantee's annual performance report on the website. Assuming a 
loaded wage rate of $91.90 per hour for web developers, we estimate 
that this requirement could generate transfers of approximately $46 per 
year per affected grantee. In FY 2023, the Department made 
approximately 9,470 grant awards. Assuming this requirement would be 
used in 20 percent of those grants, we estimate total transfers of 
approximately $87,124 per year.
    Changes to Sec.  75.732, which includes using records for 
continuous improvement, are unlikely to generate any quantifiable costs 
and may benefit the Department and general public by improving the 
clarity of the regulations.
    Changes to Sec.  76.1, which ensure consistent reference to State-
administered formula grant programs, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  76.50 clarify that, in the absence of a statutory 
or regulatory prohibition against subgranting, or in the absence of a 
term and condition in the grant award that would prohibit subgranting, 
States, consistent with 2 CFR 200.332, determine whether to make 
subgrants. These changes would likely generate cost savings for States 
through the reduced burden associated with making subgrants as opposed 
to contracts. However, we do not have sufficient information to 
quantify this impact and did not receive public comment on the cost 
savings associated with such a shift at the State level.
    Changes to Sec. Sec.  76.51-76.52 and 76.100 are for clarity only. 
They are unlikely to generate any quantifiable costs and may benefit 
the Department and general public by improving the clarity of the 
regulations.
    Changes to Sec.  76.101, which clarify the applicability of section 
441 of GEPA, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Changes to Sec.  76.102, which remove a table and provide a general 
definition of the term ``State plan,'' are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec.  76.103, which remove extraneous text and simplify 
the section, are unlikely to generate any quantifiable costs and may 
benefit the Department and general public by improving the clarity of 
the regulations.
    Changes to Sec. Sec.  76.125-76.136, which remove references to the 
Trust Territory of the Pacific Islands and make other minor updates 
that better align with current statutes, are unlikely to generate any 
quantifiable costs and may benefit the Department and general public by 
improving the clarity of the regulations.
    Changes to Sec. Sec.  76.140-76.142, which, among other things, 
allow the Secretary to prescribe alternative amendment processes on a 
program-by-program basis, could generate benefits for both States and 
the Department. The changes provide the Secretary broad flexibility to 
prescribe alternative procedures, which makes it difficult to assess 
precisely the specific cost reductions that would occur. However, we 
assume that these alternative procedures would result in a net burden 
reduction of 2 hours for a management analyst at the State level and 
0.5 hours for an administrator at the State level for each State plan 
revision under the ESEA. We assume that the loaded wage rate is $73.18 
per hour for a management analyst at the State level and $109.88 per 
hour for an administrator at the State level. We further estimate that 
alternative procedures that are likely to be used would result in a 
burden reduction of 5 hours for a management analyst and 0.5 hours for 
a chief executive at the State level for each State plan revision under 
the Workforce Innovation and Opportunity Act (WIOA). We assume that the 
loaded wage rate is $161.20 per hour for a chief executive at the State 
level. We further assume, based on historical averages, an average of 
15 State plan amendments under the ESEA and 52 State plan amendments 
under WIOA each year. In total, we estimate that these alternative 
procedures would reduce costs for States by approximately $26,238 per 
year. We also assume that the alternative procedures would reduce 
burden on Federal staff \2\ by approximately 1 hour per State plan 
amendment for a total Federal savings of approximately $4,150 per year. 
In total, we estimate that these alternative procedures would reduce 
costs by approximately $30,389 per year.
---------------------------------------------------------------------------

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

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

[[Page 70318]]

    Changes to Sec.  76.301, which clarify that section 442 of GEPA 
does not apply to LEA subgrantees, would not generate any quantifiable 
costs, and would benefit the Department and the general public by 
improving the clarity of the regulations.
    Changes to Sec.  76.400 are for clarity only. They are unlikely to 
generate any quantifiable costs and may benefit the Department and 
general public by improving the clarity of the regulations.
    Changes to Sec.  76.401, which clarify that a notice of appeal must 
include an allegation of a specific violation of law by the SEA, are 
likely to generate benefits for the Department by reducing the number 
of appeals that fail to state a claim that we receive and process each 
year. On average, we process approximately 10 appeals each year, with 
an attorney \3\ spending approximately 30 hours reviewing each appeal. 
We estimate that this provision would reduce the number of appeals the 
Department receives each year by approximately 20 percent, resulting in 
a net savings of 60 hours per year or approximately $5,530 per year. We 
also believe that this provision would generate cost savings at the 
State level, but do not have sufficient information on the case load at 
the State level to make a reliable estimate and did not receive any 
public comments on the potential savings at the State level associated 
with this proposed change. While this statement of uncertainty was also 
included in the NPRM, we inadvertently included a benefit of $5,124 for 
States in the NPRM analysis model. We correct that inclusion here by 
removing that benefit from the model and reaffirm that we do not have 
sufficient information to make a reliable estimate on cost savings at 
the State level associated with this proposed change.
---------------------------------------------------------------------------

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

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

[[Page 70319]]

net benefit, approximately $200would accrue to grantees. The remaining 
approximately $400 in net additional benefits would accrue to the 
Department.
    As noted above, we do not anticipate any meaningful, quantifiable 
impact from the majority of these final regulations. However, for those 
provisions for which we do estimate impacts, we summarize those impacts 
below using 3 and 7 percent discount rates, consistent with OMB 
Circular A-4:

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

Regulatory Flexibility Act Certification

    The Secretary certifies that this regulatory action would not have 
a significant economic impact on a substantial number of small 
entities. The Small Business Administration Size Standards for 
``proprietary institutions of higher education'' are set out in 13 CFR 
121.201. ``Nonprofit institutions'' are defined as small entities if 
they are independently owned and operated and not dominant in their 
field of operation. See 5 U.S.C. 601(4). ``Public institutions and 
LEAs'' are defined as small organizations if they are operated by a 
government overseeing a population below 50,000. See 5 U.S.C. 601(5). 
This final rule also applies to States. States are not small 
governmental organizations.
    Of the impacts we estimate accruing to grantees or eligible 
entities, all are voluntary and related mostly to an increase in the 
number of applications prepared and submitted annually for competitive 
grant competitions. Therefore, we do not believe that these regulations 
present any significant impact on small entities beyond the potential 
for increasing the likelihood of their applying for, and receiving, 
competitive grants from the Department.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control number assigned to the 
collection of information in these final regulations at the end of the 
affected sections of the regulations.
    We anticipate that changes to Sec. Sec.  76.140-76.142 would reduce 
State burden under existing information collection requirements by 
approximately 323 hours per year (see Costs and Benefits for more 
information on this estimate). The valid OMB control number for that 
information collection is 1810-0576.

Intergovernmental Review

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

34 CFR Part 79

    Intergovernmental relations.

34 CFR Part 299

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

[[Page 70320]]

Private schools; Reporting and recordkeeping requirements.

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

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

PART 75--DIRECT GRANT PROGRAMS

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

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

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


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


Sec.  75.1   Programs to which part 75 applies.

    (a) General. (1) The regulations in this part apply to each direct 
grant program of the Department of Education, except as specified in 
these regulations for direct formula grant programs, as referenced in 
paragraph (c)(3) of this section.
    (2) The Department administers two kinds of direct grant programs. 
A direct grant program is either a discretionary grant program or a 
formula grant program other than a State-administered formula grant 
program covered by 34 CFR part 76.
    (3) If a direct grant program does not have implementing 
regulations, the Secretary implements the program under the applicable 
statutes and regulations and, to the extent consistent with the 
applicable statutes and regulations, under the General Education 
Provisions Act and the regulations in this part. With respect to the 
Impact Aid Program (Title VII of the Elementary and Secondary Education 
Act of 1965), see 34 CFR 222.19 for the limited applicable regulations 
in this part.
    (b) Discretionary grant programs. A discretionary grant program is 
one that permits the Secretary to use discretionary judgment in 
selecting applications for funding.
    (c) Formula grant programs. (1) A formula grant program is one that 
entitles certain applicants to receive grants if they meet the 
requirements of the program. Applicants do not compete with each other 
for the funds, and each grant is either for a set amount or for an 
amount determined under a formula.
    (2) The Secretary applies the applicable statutes and regulations 
to fund projects under a formula grant program.
    (3) For specific regulations in this part that apply to the 
selection procedures and grant-making processes for direct formula 
grant programs, see Sec. Sec.  75.215 and 75.230.
    Note 1 to Sec.  75.1: See 34 CFR part 76 for the general 
regulations that apply to programs that allocate funds by formula among 
eligible States.


Sec.  75.4   [Removed and Reserved]

0
3. Remove and reserve Sec.  75.4.


Sec.  75.50   [Amended]

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


Sec.  75.51   [Amended]

0
5. Amend Sec.  75.51 in paragraph (a) by removing the parenthetical 
sentence ``(See the definition of nonprofit in 34 CFR 77.1.)''.

0
6. Revise Sec.  75.60 to read as follows:


Sec.  75.60   Individuals ineligible to receive assistance.

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


Sec.  75.61   [Amended]

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


Sec.  75.62   [Amended]

0
8. Amend Sec.  75.62 by:
0
a. In paragraph (a)(2), removing the words ``section 5301 of the Anti-
Drug Abuse Act of 1988 (21 U.S.C. 853a)'' and adding, in their place, 
the words ``section 421 of the Controlled Substances Act (21 U.S.C. 
862)''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.

0
9. Amend Sec.  75.101 by:
0
a. Revising paragraph (a)(1);
0
b. Adding a period after ``assistance?)'' in paragraph (a)(7); and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision reads as follows:


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

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


Sec.  75.102   [Amended]

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


Sec.  75.103   [Amended]

0
11. Amend Sec.  75.103 by:
0
a. Removing in paragraph (b) the citation ``Sec.  75.102(b) and (d)'' 
and adding in its place the citation ``Sec.  75.102(d)''; and
0
b. Removing the parenthetical authority citation at the end of the 
section.

0
12. Amend Sec.  75.104 by:
0
a. Revising the section heading;
0
b. Adding paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The revision and addition read as follows.


Sec.  75.104   Additional application provisions.

* * * * *
    (c) If an applicant wants a new grant, the applicant must submit an 
application in accordance with the requirements in the application 
notice.

0
13. Amend Sec.  75.105 by:
0
a. Revising the section heading;
0
b. In paragraph (b)(2)(i), removing the words ``by inviting 
applications that meet the priorities'' and adding in their place the 
words ``through invitational priorities'';
0
c. In paragraph (b)(2)(iii), removing the words ``seriously interfere 
with an orderly, responsible grant award process or would otherwise'';
0
d. In paragraph (b)(2)(iv), removing the word ``or'' after the 
semicolon;
0
e. In paragraph (b)(2)(v), removing the period and adding in its place 
``; or'';
0
f. Adding paragraph (b)(2)(vi);
0
g. Removing the words ``high quality'' in paragraph (c)(3) and adding 
in their place the words ``high-quality''; and

[[Page 70321]]

0
h. Removing the parenthetical authority citation at the end of the 
section.
    The revision and addition read as follows:


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

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

0
14. Revise Sec.  75.109 to read as follows:


Sec.  75.109   Changes to applications.

    An applicant may make changes to its application on or before the 
deadline date for submitting the application under the program.

0
15. Revise Sec.  75.110 to read as follows:


Sec.  75.110   Information regarding performance measurement.

    (a) The Secretary may establish, in an application notice for a 
competition, one or more program performance measurement requirements, 
including requirements for performance measures, baseline data, or 
performance targets, and a requirement that applicants propose in their 
applications one or more of their own project-specific performance 
measures, baseline data, or performance targets and ensure that the 
applicant's project-specific performance measurement plan would, if 
well implemented, yield quality data.
    (b) If the application notice establishes program performance 
measurement requirements, the applicant must also describe in the 
application--
    (1)(i) The data collection and reporting methods the applicant 
would use and why those methods are likely to yield reliable, valid, 
and meaningful performance data; and
    (ii) If the Secretary requires applicants to collect data after the 
substantive work of a project is complete in order to measure progress 
toward attaining certain performance targets, the data-collection and 
reporting methods the applicant would use during the post-performance 
period and why those methods are likely to yield quality data.
    (2) The applicant's capacity to collect and report the quality of 
the performance data, as evidenced by quality data collection, 
analysis, and reporting in other projects or research.
    (c) If an application notice requires applicants to propose 
project-specific performance measures, baseline data, or performance 
targets, the application must include the following, as required by the 
application notice:
    (1) Project-specific performance measures. How each proposed 
project-specific performance measure would: accurately measure the 
performance of the project; be consistent with the program performance 
measures established under paragraph (a) of this section; and be used 
to inform continuous improvement of the project.
    (2) Baseline data. (i) Why each proposed baseline is valid and 
reliable, including an assessment of the quality data used to establish 
the baseline; or
    (ii) If the applicant has determined that there are no established 
baseline data for a particular performance measure, an explanation of 
why there is no established baseline and of how and when, during the 
project period, the applicant would establish a valid baseline for the 
performance measure.
    (3) Performance targets. Why each proposed performance target is 
ambitious yet achievable compared to the baseline for the performance 
measure and when, during the project period, the applicant would meet 
the performance target(s).

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


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

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


Sec.  75.117   [Amended]

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


Sec.  75.118   [Amended]

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

0
19. Amend Sec.  75.127 by:
0
a. Redesignating paragraphs (b)(3) and (4) as paragraphs (b)(4) and 
(5), respectively;
0
b. Adding new paragraph (b)(3) and paragraph (c); and
0
c. Removing the parenthetical authority citation at the end of the 
section.
    The additions read as follows:


Sec.  75.127   Eligible parties may apply as a group.

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


Sec.  75.135   [Amended]

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


Sec.  75.155   [Amended]

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


Sec.  75.157  [Amended]

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


Sec.  75.158   [Amended]

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

[[Page 70322]]

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

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

0
25. Revise the undesignated center heading before Sec.  75.200 and 
revise Sec.  75.200 to read as follows:

Selection of New Discretionary Grant Projects


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

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


Sec.  75.201   [Amended]

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


Sec.  75.209   [Amended]

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

0
28. Revise Sec.  75.210 to read as follows:


Sec.  75.210   General selection criteria.

    In determining the selection criteria to evaluate applications 
submitted in a grant competition, the Secretary may select one or more 
of the following criteria and may select from among the list of 
optional factors under each criterion. The Secretary may define a 
selection criterion by selecting one or more specific factors within a 
criterion or assigning factors from one criterion to another criterion.
    (a) Need for the project. (1) The Secretary considers the need for 
the proposed project.
    (2) In determining the need for the proposed project, the Secretary 
considers one or more of the following factors:
    (i) The data presented (including a comparison to local, State, 
regional, national, or international data) that demonstrates the issue, 
challenge, or opportunity to be addressed by the proposed project.
    (ii) The extent to which the proposed project demonstrates the 
magnitude of the need for the services to be provided or the activities 
to be carried out by the proposed project.
    (iii) The extent to which the proposed project will provide 
support, resources, or services; or otherwise address the needs of the 
target population, including addressing the needs of underserved 
populations most affected by the issue, challenge, or opportunity, to 
be addressed by the proposed project and close gaps in educational 
opportunity.
    (iv) The extent to which the proposed project will focus on serving 
or otherwise addressing the needs of underserved populations.
    (v) The extent to which the specific nature and magnitude of gaps 
or challenges are identified and the extent to which these gaps or 
challenges will be addressed by the services, supports, infrastructure, 
or opportunities described in the proposed project.
    (vi) The extent to which the proposed project will prepare 
individuals from underserved populations for employment in fields and 
careers in which there are demonstrated shortages.
    (b) Significance. (1) The Secretary considers the significance of 
the proposed project.
    (2) In determining the significance of the proposed project, the 
Secretary considers one or more of the following factors:
    (i) The extent to which the proposed project is relevant at the 
national level.
    (ii) The significance of the problem or issue as it affects 
educational access and opportunity, including the underlying or related 
challenges for underserved populations.
    (iii) The extent to which findings from the project's 
implementation will contribute new knowledge to the field by increasing 
knowledge or understanding of educational challenges, including the 
underlying or related challenges, and effective strategies for 
addressing educational challenges and their effective implementation.
    (iv) The potential contribution of the proposed project to improve 
the provision of rehabilitative services, increase the number or 
quality of rehabilitation counselors, or develop and implement 
effective strategies for providing vocational rehabilitation services 
to individuals with disabilities.
    (v) The likelihood that the proposed project will result in 
systemic change that supports continuous, sustainable, and measurable 
improvement.
    (vi) The potential contribution of the proposed project to the 
development and advancement of theory, knowledge, and practices in the 
field of study, including the extent to which the contributions may be 
used by other appropriate agencies, organizations, institutions, or 
entities.
    (vii) The potential for generalizing from the findings or results 
of the proposed project.
    (viii) The extent to which the proposed project is likely to build 
local, State, regional, or national capacity to provide, improve, 
sustain, or expand training or services that address the needs of 
underserved populations.
    (ix) The extent to which the proposed project involves the 
development or demonstration of innovative and effective strategies 
that build on, or are alternatives to, existing strategies.
    (x) The extent to which the proposed project is innovative and 
likely to be more effective compared to other efforts to address a 
similar problem.
    (xi) The likely utility of the resources (such as materials, 
processes, techniques, or data infrastructure) that will result from 
the proposed project, including the potential for effective use in a 
variety of conditions, populations, or settings.
    (xii) The extent to which the resources, tools, and implementation 
lessons of the proposed project will be disseminated in ways to the 
target population and local community that will enable them and others 
(including practitioners, researchers, education leaders, and partners) 
to implement similar strategies.
    (xiii) The potential effective replicability of the proposed 
project or strategies, including, as appropriate, the potential for 
implementation by a variety of populations or settings.
    (xiv) The importance or magnitude of the results or outcomes likely 
to be attained by the proposed project,

[[Page 70323]]

especially contributions toward improving teaching practice and student 
learning and achievement.
    (xv) The importance or magnitude of the results or outcomes likely 
to be attained by the proposed project, especially improvements in 
employment, independent living services, or both, as appropriate.
    (xvi) The importance or magnitude of the results or outcomes likely 
to be attained by the proposed project that demonstrate its impact for 
the targeted underserved populations in terms of breadth and depth of 
services.
    (xvii) The extent to which the proposed project introduces an 
innovative approach, such as a modification of an evidence-based 
project component to serve different populations, an extension of an 
existing evidence-based project component, a unique composition of 
various project components to explore combined effects, or development 
of an emerging project component that needs further testing.
    (c) Quality of the project design. (1) The Secretary considers the 
quality of the design of the proposed project.
    (2) In determining the quality of the design of the proposed 
project, the Secretary considers one or more of the following factors:
    (i) The extent to which the goals, objectives, and outcomes to be 
achieved by the proposed project are clearly specified, measurable, and 
ambitious yet achievable within the project period, and aligned with 
the purposes of the grant program.
    (ii) The extent to which the design of the proposed project 
demonstrates meaningful community engagement and input to ensure that 
the project is appropriate to successfully address the needs of the 
target population or other identified needs and will be used to inform 
continuous improvement strategies.
    (iii) The quality of the logic model or other conceptual framework 
underlying the proposed project, including how inputs are related to 
outcomes.
    (iv) The extent to which the proposed project's logic model or 
other conceptual framework was developed based on engagement of a broad 
range of community members and partners.
    (v) The extent to which the proposed project proposes specific, 
measurable targets, connected to strategies, activities, resources, 
outputs, and outcomes, and uses reliable administrative data to measure 
progress and inform continuous improvement.
    (vi) The extent to which the design of the proposed project 
includes a thorough, high-quality review of the relevant literature, a 
high-quality plan for project implementation, and the use of 
appropriate methodological tools to enable successful achievement of 
project objectives.
    (vii) The quality of the proposed demonstration design, such as 
qualitative and quantitative design, and procedures for documenting 
project activities and results for underserved populations.
    (viii) The extent to which the design for implementing and 
evaluating the proposed project will result in information to guide 
possible replication of project activities or strategies, including 
valid and reliable information about the effectiveness of the approach 
or strategies employed by the project.
    (ix) The extent to which the proposed development efforts include 
adequate quality controls, continuous improvement efforts, and, as 
appropriate, repeated testing of products.
    (x) The extent to which the proposed project demonstrates that it 
is designed to build capacity and yield sustainable results that will 
extend beyond the project period.
    (xi) The extent to which the design of the proposed project 
reflects the most recent and relevant knowledge and practices from 
research and effective practice.
    (xii) The extent to which the proposed project represents an 
exceptional approach to meeting program purposes and requirements and 
serving the target population.
    (xiii) The extent to which the proposed project represents an 
exceptional approach to any absolute priority or absolute priorities 
used in the competition.
    (xiv) The extent to which the proposed project will integrate or 
build on ideas, strategies, and efforts from similar external projects 
to improve relevant outcomes, using existing funding streams from other 
programs or policies supported by community, State, and Federal 
resources.
    (xv) The extent to which the proposed project is informed by 
similar past projects implemented by the applicant with demonstrated 
results.
    (xvi) The extent to which the proposed project will include 
coordination with other Federal investments, as well as appropriate 
agencies and organizations providing similar services to the target 
population.
    (xvii) The extent to which the proposed project is part of a 
comprehensive effort to improve teaching and learning and support 
rigorous academic standards and increased social, emotional, and 
educational development for students, including members of underserved 
populations.
    (xviii) The extent to which the proposed project includes explicit 
plans for authentic, meaningful, and ongoing community member and 
partner engagement, including their involvement in planning, 
implementing, and revising project activities for underserved 
populations.
    (xix) The extent to which the proposed project includes plans for 
consumer involvement.
    (xx) The extent to which performance feedback and formative data 
are integral to the design of the proposed project and will be used to 
inform continuous improvement.
    (xxi) The extent to which fellowship recipients or other project 
participants are to be selected on the basis of academic excellence.
    (xxii) The extent to which the applicant demonstrates that it has 
the resources to operate the project beyond the project period, 
including a multiyear financial and operating model and accompanying 
plan; the demonstrated commitment of any partners; demonstration of 
broad support from community members and partners (such as State 
educational agencies, teachers' unions, families, business and 
industry, community members, and State vocational rehabilitation 
agencies) that are critical to the project's long-term success; or a 
plan for capacity-building by leveraging one or more of these types of 
resources.
    (xxiii) The extent to which there is a plan to incorporate the 
project purposes, activities, or benefits into the ongoing work of the 
applicant beyond the end of the project period.
    (xxiv) The extent to which the proposed project will increase 
efficiency in the use of time, staff, money, or other resources in 
order to improve results and increase productivity.
    (xxv) The extent to which the proposed project will integrate with, 
or build on, similar or related efforts in order to improve relevant 
outcomes, using nonpublic funds or resources.
    (xxvi) The extent to which the proposed project demonstrates a 
rationale that is aligned with the purposes of the grant program.
    (xxvii) The extent to which the proposed project represents 
implementation of the evidence cited in support of the proposed project 
with fidelity.
    (xxviii) The extent to which the applicant plans to allocate a 
significant portion of its requested funding to the evidence-based 
project components.

[[Page 70324]]

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

[[Page 70325]]

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

[[Page 70326]]

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

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


Sec.  75.215   How the Department selects a new project.

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

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


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

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


Sec.  75.217   [Amended]

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

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


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

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


Sec.  75.220   [Amended]

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

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


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

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


Sec.  75.222   [Amended]

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


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

* * * * *

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


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


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

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

[[Page 70327]]

    (v) 5 years;
    (vi) 6 years; or
    (vii) 7 years; or
    (6) Any combination of paragraphs (b)(1) through (5) of this 
section.
    (c) 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
37. Revise Sec.  75.226 to read as follows:


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
38. 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: provide competitive 
preference to applicants that meet one or more of the conditions in 
paragraph (b) of this section; or provide special consideration for 
rural applicants by establishing one competition for those applicants 
that meet one or more of the conditions in paragraph (b) of this 
section and a separate competition for applicants that meet the 
corresponding conditions in paragraph (c).
    (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 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 College Navigator search tool.
    (c) 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 
program or the Rural and Low-Income School 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 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 College Navigator search tool.

0
39. 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.  75.217, 
Sec.  75.220, or

[[Page 70328]]

Sec.  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
40. 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
41. 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
42. 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 
under 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 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 in 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 200.342.
    (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 200.342, 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
43. Add 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

[[Page 70329]]

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
44. 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
45. 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) 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.


Sec.  75.263   [Amended]

0
46. Amend Sec.  75.263 by:
0
a. Removing ``, notwithstanding any requirement in 2 CFR part 200,'' 
from the introductory text;
0
b. In paragraph (a), removing the word ``ED'' and adding in its place 
the word ``Department''; and
0
c. Removing the parenthetical authority citation at the end of the 
section.


Sec.  75.264   [Amended]

0
47. Remove the authority citation at the end of the section.

0
48. 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 Paragraph (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 disability  Section 504 of the Rehabilitation  34 CFR part 104.
                                            Act of 1973 (29 U.S.C. 794).
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 age.......  Age Discrimination Act of 1975     34 CFR part 110.
                                            (42 U.S.C. 6101 et seq.).
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  75.519   [Amended]

0
49. 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
50. Amend Sec.  75.531 by removing the word ``insure'' and adding in 
its place the word ``ensure''.


Sec.  75.533   [Amended]

0
51. 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
52. 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
53. 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

[[Page 70330]]

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 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
54. 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
55. 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
56. 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 must--
    (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

[[Page 70331]]

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 
must 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
57. Amend Sec.  75.564 by:
0
a. Revising paragraph (b);
0
b. Adding the words ``and other applicable restrictions'' at the 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
58. Amend Sec.  75.580 by removing the parenthetical authority 
citation.

0
59. 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 addition 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 the requirements 
in 34 CFR part 97, Protection of Human Subjects, and other applicable 
laws;
    (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
60. 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. If requested by the Secretary, a grantee must, among other 
types of activities--
    (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) 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
61. 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 acquisition; and
    (2) A grantee whose grant includes funds for construction or real 
property acquisition.
    (c) Sections 75.600 through 75.618 do not apply to grantees in--
    (1) Programs prohibited from using funds for construction or real 
property acquisition under Sec.  75.533; and
    (2) Projects determined by the Secretary to be minor remodeling 
under 34 CFR 77.1(c).

0
62. 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 approved the 
project.

0
63. 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; and
    (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 include sufficient funds for commissioning of energy, HVAC, 
and water systems and to train personnel in the proper operation of 
such building systems;
    (3) For new construction and major rehabilitation projects, may 
consider life-cycle cost analysis for major design decisions to the 
extent possible;
    (4) May budget for reasonable and predictable contingency costs 
consistent with 2 CFR 200.433; and
    (5) May budget for school and community education about the 
construction project including its energy, environmental, and health 
features and benefits.
    (c) Prior to approving 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).

[[Page 70332]]

    (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
64. 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
65. 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
66. 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
67. Revise Sec.  75.606 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) In accordance with agency directives, 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 
and include a covenant in the title of the real property to ensure 
nondiscrimination; and
    (4) Report at least annually on the status of real property in 
which the 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
68. Remove and reserve Sec. Sec.  75.607 through 75.609.

0
69. 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
70. Revise Sec.  75.611 to read as follows:


Sec.  75.611   Environmental impact assessment.

    (a) When a grantee's construction or real property acquisition 
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
71. 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, consistent with Executive Order (E.O.) 11988 of May 24, 1977, 
E.O. 13690 of January 30, 2015, and E.O. 14030 of May 20, 2021--
    (a) Evaluate flood hazards in connection with the construction;
    (b) As far as practicable, avoid uneconomic, hazardous, or 
unnecessary use of flood plains in connection with the construction;
    (c) Mitigate flood hazards through design such as elevating systems 
and first floor elevations above flood level plus freeboard; and
    (d) Summarize remaining flood risks in a memorandum.

0
72. 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
73. 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.

[[Page 70333]]

    (b) In deciding whether to approve a construction project, the 
Secretary considers--
    (1) The information provided by the grantee under paragraph (a) of 
this section; and
    (2) Any comments received by the Advisory Council on Historic 
Preservation (see 36 CFR part 800).

0
74. 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, Pub. L. 117-58, Sec.  70901 through 70927 and 
implementing regulations, as applicable.

0
75. 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. A grantee that is 
constructing a new school building or conducting a major rehabilitation 
of a school building may evaluate life-cycle costs and benefits of 
highly efficient, all-electric systems or a net zero energy project in 
the early design phase.
    (b) A grantee must comply with ASHRAE 90.1-2022 in their 
construction project.
    (c) ANSI/ASHRAE/IES Standard 90.1-2022 (I-P), Energy Standard for 
Sites and Buildings Except Low-Rise Residential Buildings (I-P 
Edition), 2022 (``ASHRAE Standard 90.1-2022''), 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., 180 Technology Parkway, Peachtree Corners, GA 30092; 
www.ashrae.org; 404-636-8400.

0
76. 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.
    (b) For non-residential facilities: 41 CFR 102-76.60 to 102-76.95.


Sec.  75.618   [Redesignated as Sec.  75.619]

0
77. Redesignate Sec.  75.618 as Sec.  75.619.

0
78. 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) A grantee must comply with the following:
    (1) The standards under the Occupational Safety and Health Act of 
1970 (See 29 CFR part 1910).
    (2) State and local codes, to the extent that they are more 
stringent.
    (b) A grantee may use additional standards and best practices to 
support health and wellbeing of students and staff.

0
79. 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 views expressed or materials provided by, any Federal agency.

0
80. 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
81. 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 at the same time as 
the publication becomes available on the publisher's website.
    (d) Grantees are responsible for ensuring that any publishing or 
copyright agreements concerning submitted articles fully comply with 
this section.
    (e) Grantees must make scientific data that inform the findings in 
a peer-reviewed scholarly publication publicly available, consistent 
with requirements in 34 CFR part 97, Protection of Human Subjects, and 
other applicable laws.

0
82. Remove the undesignated center heading ``Inventions and Patents'' 
preceding Sec.  75.626.

0
83. 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
84. 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.  76.650 
through 76.662.


Sec.  75.682   [Amended]

0
85. Amend Sec.  75.682 by:

[[Page 70334]]

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
86. 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
87. Amend Sec.  75.702 by removing the word ``insure'' and adding in 
its place the word ``ensure''.

0
88. 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 read 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
89. Amend Sec.  75.720 by:
0
a. In paragraph (a)(1), remove 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 must, at the time of 
submission to the Secretary, post any performance and financial reports 
required by this section on a public-facing website maintained by the 
grantee, after redacting any privacy or confidential business 
information.

0
90. Amend Sec.  75.732 by:
0
a. Redesignating paragraph (b)(2) as paragraph (b)(3) and adding the 
word ``project'' after the words ``Revise those''.
0
b. Adding a new paragraph (b)(2).
    The addition reads as follows:


Sec.  75.732   Records related to performance.

* * * * *
    (b) * * *
    (2) Inform periodic review and continuous improvement of the 
project plans; and
* * * * *

0
91. 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 words ``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.

    (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.  75.900   [Amended]

0
92. 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
93. 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
94. 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.
    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 20 U.S.C. 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
95. The part heading for part 76 is revised to read as set forth above.

0
96. 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.

[[Page 70335]]

Sec.  76.2   [Amended]

0
97. Amend Sec.  76.2 by removing the parenthetical authority citation 
at the end of the section.

0
98. 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, as determined by 
applicable statutes or regulations, or if applicable statutes and 
regulations do not address eligible subgrantees, as determined by the 
State; 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 terms and 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).
    (e) No subgrant that a State chooses to make in accordance with 
paragraph (b) may change the amount of Federal funds for which an 
entity is eligible through a formula in the applicable Federal statute 
or regulation.


Sec.  76.51   [Amended]

0
99. 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
100. Amend Sec.  76.52 by removing the words ``State-Administered 
Formula Grant'' and adding in their place ``State-administered formula 
grant'' in paragraphs (a)(3) and (4), (b), (c)(1), and (d)(1) and (2).


Sec.  76.100   [Amended]

0
101. 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
102. 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), 
which may include information about how the State intends use 
continuous improvement strategies in its program implementation based 
on periodic review of research, data, community input, and other 
feedback.
    (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
103. 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
104. 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
105. 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
106. 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
107. 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
108. Amend Sec.  76.129 by:
0
a. Revising the example after paragraph (a) and the example after 
paragraph (b).
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
109. Amend Sec.  76.130 by:

[[Page 70336]]

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
110. 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
d. 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
e. Removing the parenthetical authority citation at the end of the 
section.


Sec.  76.132   [Amended]

0
111. 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
112. Amend Sec.  76.134 by:
0
a. Revising paragraph (a);
0
b. In paragraph (b), removing the words ``applicable program statutes'' 
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
113. 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
114. 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 for submitting amendments based on the 
characteristics and requirements of a particular State-administered 
formula grant program.


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

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


Sec.  76.260   [Amended]

0
116. 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
117. 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
118. 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
119. 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.
    (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

[[Page 70337]]

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
120. 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   Constitutional rights, freedom of inquiry, and Federal 
statutes and regulations on nondiscrimination.

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

                                            Table 1 to Paragraph (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 disability  Section 504 of the Rehabilitation  34 CFR part 104.
                                            Act of 1973 (29 U.S.C. 794).
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 age.......  Age Discrimination Act of 1975     34 CFR part 110.
                                            (42 U.S.C. 6101 et seq.).
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  76.532   [Amended]

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


Sec.  76.533   [Amended]

0
122. 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
123. 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 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.

[[Page 70338]]

    (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
124. 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, must 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
125. 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
126. 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
127. 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) Must 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 must 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
128. Amend Sec.  76.565 by removing the parenthetical authority 
citation at the end of the section.


Sec.  76.566   [Amended]

0
129. 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
130. 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
131. 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
132. 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:


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
133. Amend Sec.  76.580 by removing the parenthetical authority 
citation at the end of the section.

0
134. 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

[[Page 70339]]

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
135. 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.  76.651 through 76.662.

0
136. Revise Sec.  76.652 to read as follows:


Sec.  76.652  Consultation with representatives of private school 
students.

    A subgrantee must consult with appropriate private school officials 
in accordance with the requirements in Sec.  299.7.


Sec.  76.661  [Amended]

0
137. Amend Sec.  76.661(c) by removing the word ``insure'' and adding 
in its place the word ``ensure''.


Sec.  76.662  [Amended]

0
138. Amend Sec.  76.662 by removing the word ``insure'' and adding in 
its place the word ``ensure''.


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 by 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       or subgrant period of
 under the cost principles in 2 CFR       performance.
 part 200, 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)''.


Sec.  76.714  [Amended]

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

0
149. Amend Sec.  76.720 by:
0
a. Revising and republishing paragraph (a) introductory text;
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.


Sec.  76.720  State reporting requirements.

    (a) This section applies to a State's reports required for 
monitoring and continuous improvement, including 2 CFR 200.328 
(Financial reporting) and 2 CFR 200.329 (Monitoring and reporting

[[Page 70340]]

program performance), and other reports required by the Secretary and 
approved by the Office of Management and Budget (OMB) under the Subpart 
1 of Chapter 35 (sections 3501-3521) of Title 44, U.S. Code, commonly 
known as the ``Paperwork Reduction Act.''
* * * * *

0
150. Revise Sec.  76.722 to read as follows:


Sec.  76.722  Subgrantee reporting requirements.

    A State may require a subgrantee to submit reports in a manner and 
format that assists the State in complying with the requirements under 
34 CFR 76.720, in carrying out other responsibilities under the 
program, engaging in periodic review and continuous improvement of the 
State's plan, and supporting the subgrantee in engaging in periodic 
review and continuous improvement of the subgrantee's plan.

0
151. Add a new Sec.  76.732 before the undesignated center heading 
``Privacy'' to read as follows:


Sec.  76.732  Records related to performance.

    (a) A grantee must keep records of significant project experiences 
and results.
    (b) The grantee must use the records under paragraph (a) to--
    (1) Determine progress in accomplishing project objectives;
    (2) Inform periodic review and continuous improvement of the 
project plans; and
    (3) Revise those project objectives, if necessary.

0
152. Amend Sec.  76.740 by:
0
a. In paragraph (a), removing the number ``438'' in the first sentence 
and adding in its place the number ``444''; 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
153. 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
154. 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
155. 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
156. 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
157. 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
158. Revise the undesignated center heading before Sec.  76.788 to read 
``Responsibilities for Notice and Information''.


Sec.  76.788  [Amended]

0
159. 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
160. 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
161. 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
162. The authority citation for part 77 continues to read as follows:

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


0
163. 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. Adding in alphabetical order a definition for ``Continuous 
improvement'';
0
vi. Revising the definition of ``Demonstrates a rationale'';
0
vii. Removing the definitions of ``Direct grant program'' and 
``Director of the Institute of Museum Services'';

[[Page 70341]]

0
viii. Revising the definition of ``Director of the National Institute 
of Education'';
0
ix. Adding in alphabetical order a definition for ``Evaluation'';
0
x. In the definition of ``Evidence-based'', adding ``, for the purposes 
of 34 CFR part 75,'' after the word ``Evidence-based'';
0
xi. Adding in alphabetical order a definition for ``Evidence-
building'';
0
xii. In the definition of ``GEPA'', removing the word ``The'' and 
adding in its place the word ``the'';
0
xiii. Adding in alphabetical order a definition for ``Independent 
evaluation'';
0
xiv. Revising the definitions of ``Minor remodeling'', ``Moderate 
evidence'', and ``National level'';
0
xv. Adding in alphabetical order a definition for ``Peer-reviewed 
scholarly publication'';
0
xvi. 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
xvii. Revising the definition of ``Promising evidence'';
0
xviii. Adding in alphabetical order a definition for ``Quality data'';
0
xix. Revising the definitions of ``Regional level'', ``State'', and 
``Strong evidence'';
0
xx. Adding in alphabetical order a definition for ``Scientific data'';
0
xxi. 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
xxii. Revising the definition of ``What Works Clearinghouse (WWC) 
Handbooks (WWC Handbooks)''; and
0
xxiii. 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 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. (See definition in 2 CFR 200.1.)
    Equipment. (See definition in 2 CFR 200.1.)
    Federal award. (See definition in 2 CFR 200.1.) (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. (See definition in 2 CFR 200.1.) (For 
discretionary grants, the Department 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. (See definition in 2 CFR 200.1.)
    Real property. (See definition in 2 CFR 200.1.)
    Recipient. (See definition in 2 CFR 200.1.)
    Subaward. (See definition in 2 CFR 200.1.) (The term ``subgrant,'' 
as defined in paragraph (c) of this section, has the same meaning as 
``subaward'' in 2 CFR 200.1).
    Supplies. (See definition in 2 CFR 200.1.)
    (c) * * *
    Construction means the preparation of drawings and specifications 
for a facilities project; erecting, building, demolishing, acquiring, 
renovating, major remodeling of, or extending a facilities project; or 
inspecting and supervising the construction of a facilities project. 
Construction does not include minor remodeling.
* * * * *
    Continuous improvement means using plans for collecting and 
analyzing data about a project component's implementation and outcomes 
(including the pace and extent to which project outcomes are being met) 
to inform necessary changes throughout the project. These plans may 
include strategies to gather ongoing feedback from participants and 
stakeholders on the implementation of the project component.
* * * * *
    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

[[Page 70342]]

``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, 
ethnicity, gender, disability, language, and migrant status), 
populations, and settings.
* * * * *
    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.
* * * * *
    Scientific data include the recorded factual material commonly 
accepted in the scientific community as of sufficient quality to 
validate and replicate research findings. Such scientific data do not 
include laboratory notebooks, preliminary analyses, case report forms, 
drafts of scientific papers, plans for future research, peer reviews, 
communications with colleagues, or physical objects and materials, such 
as laboratory specimens, artifacts, or field notes.
* * * * *
    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

[[Page 70343]]

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
164. 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 [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.
    (a) What Works Clearinghouse Procedures and Standards Handbook, WWC 
2022008REV, Version 5.0, August 2022; Revised December 2022; IBR 
approved for Sec.  77.1.
    (b) What Works Clearinghouse Standards Handbook, Version 4.1, 
January 2020, IBR approved for Sec.  77.1.
    (c) What Works Clearinghouse Procedures Handbook, Version 4.1, 
January 2020, IBR approved for Sec.  77.1.
    (d) What Works Clearinghouse Standards Handbook, Version 4.0, 
October 2017, IBR approved for Sec.  77.1.
    (e) What Works Clearinghouse Procedures Handbook, Version 4.0, 
October 2017, IBR approved for Sec.  77.1.
    (f) What Works Clearinghouse Procedures and Standards Handbook, 
Version 3.0, March 2014, IBR approved for Sec.  77.1.
    (g) 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
165. Revise the authority citation for part 79 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
166. 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
167. Amend Sec.  79.1 by removing the second sentence in paragraph (a).

0
168. 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
169. 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
0
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
170. 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
171. Amend Sec.  79.5 by removing the word ``assure'' and adding in its 
place the word ``ensure''.


Sec.  79.6  [Amended]

0
172. Amend Sec.  79.6(d) by removing the word ``state's'' and adding in 
its place the word ``State's''.


Sec.  79.8  [Amended]

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


Sec.  79.9  [Amended]

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


Sec.  79.10  [Amended]

0
175. 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
176. 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.

[[Page 70344]]

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

0
177. Redesignate Sec. Sec.  299.7 through 299.13 as Sec. Sec.  299.9 
through 299.15.

0
178. 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--
    (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 must 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
179. 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 through 
299.11.

0
180. 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 (h) of this section.
    (d) Analysis and conclusions regarding the requirements.

[[Page 70345]]

    (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 the SEA relied on 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:
    (1) A clear and concise statement of the parts of the SEA's 
decision being appealed, if applicable.
    (2) The legal and factual basis for the appeal.
    (3) A copy of the complaint filed with the SEA.
    (4) 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).
    (5) 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
181. Add subpart G, consisting of Sec. Sec.  299.18 through 299.28 to 
read as follows:
Subpart G--Procedures for Bypass
299.18 Applicability.
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 must 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.

[[Page 70346]]

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 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. 2024-17239 Filed 8-28-24; 8:45 am]
BILLING CODE 4000-01-P