2024-17239. Education Department General Administrative Regulations and Related Regulatory Provisions
Table 1—Annual Transfers—Changes to § 75.590
Year Net annual 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 § 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 §§ 75.600-75.615 and §§ 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 ( print 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 §§ 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 § 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 § 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 § 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 §§ 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 §§ 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.
Changes to § 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. ( print page 70318)
Changes to § 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 § 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 § 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.
Changes to §§ 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 §§ 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 § 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 §§ 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 § 76.652 to refer to § 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 §§ 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 §§ 299.18-299.28 (see below), there should not be any quantifiable costs to the removal of §§ 76.670-76.677.
Changes to §§ 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 § 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 § 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 § 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 § 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 § 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 § 76.401 from which relevant provisions would be moved to § 76.783 for clarity.
Changes to §§ 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 § 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 §§ 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 §§ 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 §§ 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 ( print 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:
Provision Benefits 3% discount rate 7% discount rate § 75.109—Reduce the number of paper copies of an application to be submitted $375 $375 § 76.140-142—Amendments to State Plan 30,389 30,389 § 76.401—Disapproval of an application 5,531 5,531 Costs § 75.253—Request for Reconsideration (36,392) (36,392) Transfers § 75.590—Independent evaluation 113,824,837 109,706,738 § 75.720—Financial and Performance Reports 87,124 87,124 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. See5 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. See5 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 §§ 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.
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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;
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
1. The authority citation for part 75 is revised to read as follows:
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.
2. Revise § 75.1 to read as follows:
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 §§ 75.215 and 75.230.
Note 1 to § 75.1: See 34 CFR part 76 for the general regulations that apply to programs that allocate funds by formula among eligible States.
[Removed and Reserved]3. Remove and reserve § 75.4.
[Amended]4. Amend § 75.50 by removing the words “the authorizing statute” and adding in their place the words “applicable statutes and regulations”.
[Amended]5. Amend § 75.51 in paragraph (a) by removing the parenthetical sentence “(See the definition of nonprofit in 34 CFR 77.1.)”.
6. Revise § 75.60 to read as follows:
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.
[Amended]7. Amend section 75.61 by:
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
b. Removing the parenthetical authority citation at the end of the section.
[Amended]8. Amend § 75.62 by:
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
b. Removing the parenthetical authority citation at the end of the section.
9. Amend § 75.101 by:
a. Revising paragraph (a)(1);
b. Adding a period after “assistance?)” in paragraph (a)(7); and
c. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
Information in the application notice that helps an applicant apply.(a) * * *
(1) How an applicant can obtain an application package.
* * * * *[Amended]10. Amend § 75.102 by removing and reserving paragraph (b) and removing the parenthetical authority citation at the end of the section.
[Amended]11. Amend § 75.103 by:
a. Removing in paragraph (b) the citation “§ 75.102(b) and (d)” and adding in its place the citation “§ 75.102(d)”; and
b. Removing the parenthetical authority citation at the end of the section.
12. Amend § 75.104 by:
a. Revising the section heading;
b. Adding paragraph (c); and
c. Removing the parenthetical authority citation at the end of the section.
The revision and addition read as follows.
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.
13. Amend § 75.105 by:
a. Revising the section heading;
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”;
c. In paragraph (b)(2)(iii), removing the words “seriously interfere with an orderly, responsible grant award process or would otherwise”;
d. In paragraph (b)(2)(iv), removing the word “or” after the semicolon;
e. In paragraph (b)(2)(v), removing the period and adding in its place “; or”;
f. Adding paragraph (b)(2)(vi);
g. Removing the words “high quality” in paragraph (c)(3) and adding in their place the words “high-quality”; and ( print page 70321)
h. Removing the parenthetical authority citation at the end of the section.
The revision and addition read as follows:
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.
* * * * *14. Revise § 75.109 to read as follows:
Changes to applications.An applicant may make changes to its application on or before the deadline date for submitting the application under the program.
15. Revise § 75.110 to read as follows:
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).
16. Amend § 75.112 by:
a. Revising the section heading and paragraph (b);
b. Adding paragraph (c); and
c. Removing the parenthetical authority citation at the end of the section.
The revisions and addition read as follows:
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.
[Amended]17. Amend § 75.117 in paragraph (a) by adding “and” after the semicolon.
[Amended]18. Amend § 75.118 by:
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
b. Removing the parenthetical authority citation at the end of the section.
19. Amend § 75.127 by:
a. Redesignating paragraphs (b)(3) and (4) as paragraphs (b)(4) and (5), respectively;
b. Adding new paragraph (b)(3) and paragraph (c); and
c. Removing the parenthetical authority citation at the end of the section.
The additions read as follows:
Eligible parties may apply as a group.* * * * *(b) * * *
(3) Partnership.
* * * * *(c) In the case of a group application submitted in accordance with §§ 75.127 through 75.129, all parties in the group must be eligible applicants under the competition.
[Amended]20. Amend § 75.135 by:
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
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)”.
[Amended]21. Amend § 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”.
[Amended]22. Amend § 75.157 by removing the parenthetical authority citation at the end of the section.
[Amended]23. Amend § 75.158 by:
a. In paragraph (c), removing the citation “§ 75.102(b) and (d)” and adding in its place the citation “§ 75.102(d)”; and
b. Removing the parenthetical authority citation at the end of the section.
24. Remove the undesignated section heading before § 75.190, and remove and reserve §§ 75.190 through 75.192.
25. Revise the undesignated center heading before § 75.200 and revise § 75.200 to read as follows:
Selection of New Discretionary Grant Projects
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 § 75.209;
(2) Selection criteria in § 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.
[Amended]26. Amend § 75.201 by:
a. In paragraph (b), adding the words “or factors” after the words “selection criteria”;
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
c. Removing the parenthetical authority citation at the end of the section.
[Amended]27. Amend § 75.209 by:
a. In the introductory text, adding a comma immediately after “limited to”; and
b. In paragraph (c), removing the words “the program statute or regulations” and adding in their place the words “applicable statutes and regulations”.
28. Revise § 75.210 to read as follows:
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, ( print 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. ( print 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 ( print 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. ( print 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.
29. Revise § 75.215 to read as follows:
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 § 75.216 applies also to a formula grant program. (See § 75.1(b) Discretionary grant programs, § 75.1(c) Formula grant programs, and § 75.200, How applications for new discretionary grants and cooperative agreements are selected for funding; standards for use of cooperative agreements.)
30. Revise § 75.216 to read as follows:
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.
[Amended]31. Amend § 75.217 by:
a. In paragraph (a), removing the words “the authorizing statute” and adding in their place the words “applicable statutes and regulations”;
b. In paragraph (c), removing the word “solely” and adding the words “and any competitive preference points” after the words “selection criteria”; and
c. Removing the parenthetical authority citation at the end of the section.
32. Amend § 75.219 by:
a. Revising paragraph (b); and
b. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
Exceptions to the procedures under § 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 § 75.217; or
* * * * *[Amended]33. Amend § 75.220 by:
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
b. Removing the parenthetical authority citation at the end of the section.
34. Revise § 75.221 to read as follows:
Procedures the Department uses under § 75.219(b).If the Secretary has documentary evidence that the special circumstances of § 75.219(b) exist for an application, the Secretary may select the application for funding.
[Amended]35. Amend § 75.222 by:
a. In paragraph (a)(1), removing the word “under” before “which funds” and adding in its place the word “for”;
b. In paragraph (a)(2)(ii)(B), removing the citation “(a)(2)(ii)” and adding in its place the citation “(a)(2)(ii)(A)”;
c. In paragraph (b)(1), removing the word “ED” and adding, in its place, the word “the Department”;
d. Removing, in paragraph (b)(2), the word “codified”;
e. Revising the Note; and
f. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
Procedures the Department uses under § 75.219(c).* * * * *Note 1 to § 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.
36. Revise § 75.225 to read as follows:
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 §§ 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 §§ 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 §§ 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 §§ 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; ( print 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 §§ 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 §§ 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 §§ 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 §§ 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.
37. Revise § 75.226 to read as follows:
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 § 75.105(c)(3), or provide competitive preference under the procedures in § 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.
38. Add § 75.227 before the undesignated center heading “Procedures to Make a Grant” to read as follows:
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.
39. Revise § 75.230 to read as follows:
How the Department makes a grant.(a) If the Secretary selects an application under § 75.217, § 75.220, or ( print page 70328) § 75.222, the Secretary follows the procedures in §§ 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 § 75.200 for more information.)
[Amended]40. Amend § 75.234 by:
a. In paragraph (a)(2), removing the word “special” and adding in its place the word “specific”; and
b. Removing the parenthetical authority citation at the end of the section.
41. Revise § 75.250 to read as follows:
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.
42. Revise § 75.253 to read as follows:
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 § 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 § 75.118, performance measures established under § 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 §§ 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).
43. Add § 75.254 to read as follows:
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 ( print 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.
[Amended]44. Amend § 75.260 by:
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
b. Removing the parenthetical authority citation at the end of the section.
45. Revise § 75.261 to read as follows:
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.
[Amended]46. Amend § 75.263 by:
a. Removing “, notwithstanding any requirement in 2 CFR part 200,” from the introductory text;
b. In paragraph (a), removing the word “ED” and adding in its place the word “Department”; and
c. Removing the parenthetical authority citation at the end of the section.
[Amended]47. Remove the authority citation at the end of the section.
48. Amend § 75.500 by revising paragraph (a) to read as follows:
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, color, or national origin Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) 34 CFR part 100. Discrimination on the basis of disability Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 34 CFR part 104. Discrimination on the basis of sex Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) 34 CFR part 106. Discrimination on the basis of age Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) 34 CFR part 110. * * * * *[Amended]49. Amend § 75.519 by:
a. Removing the words “its grantee” and adding in their place the words “its grant”;
b. Adding “, consistent with the cost principles described in 2 CFR part 200” after the word “funds”; and
c. Removing the parenthetical authority citation at the end of the section.
[Amended]50. Amend § 75.531 by removing the word “insure” and adding in its place the word “ensure”.
[Amended]51. Amend § 75.533 by:
a. Removing the words “authorizing statute or implementing regulations for the program” and adding in their place the words “applicable statutes and regulations”.
b. Removing the parenthetical authority citation at the end of the section.
[Amended]52. Amend § 75.534 in paragraph (a) by removing the words “the program statute” and adding in their place the words “applicable statutes and regulations”.
53. Revise § 75.560 to read as follows:
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 ( print 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.
54. Amend § 75.561 by:
a. Revising the section heading and paragraph (a); and
b. Removing the second sentence of paragraph (b).
The revisions read as follows:
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.
* * * * *55. Revise § 75.562 to read as follows:
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 § 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.
56. Revise § 75.563 to read as follows:
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 ( print 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.
57. Amend § 75.564 by:
a. Revising paragraph (b);
b. Adding the words “and other applicable restrictions” at the end of paragraph (d);
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);
d. Adding the words “and program requirements” at the end of paragraph (e)(1);
e. Removing the hyphen between “sub” and “awards” in paragraph (e)(2); and
f. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
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.
* * * * *[Amended]58. Amend § 75.580 by removing the parenthetical authority citation.
59. Amend § 75.590 by:
a. Adding paragraph (c); and
b. Removing the parenthetical authority citation at the end of the section.
The addition reads as follows:
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.
60. Revise § 75.591 to read as follows:
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.
61. Revise § 75.600 to read as follows:
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, §§ 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 § 75.533; and
(2) Projects determined by the Secretary to be minor remodeling under 34 CFR 77.1(c).
62. Revise § 75.601 to read as follows:
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.
63. Revise § 75.602 to read as follows:
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 § 75.601, the Secretary considers a grantee's compliance with the following requirements, as applicable:
(1) Title to site (§ 75.610).
(2) Environmental impact assessment (§ 75.611). ( print page 70332)
(3) Avoidance of flood hazards (§ 75.612).
(4) Compliance with the Coastal Barrier Resources Act (§ 75.613).
(5) Preservation of historic sites (§ 75.614).
(6) Build America, Buy America Act (§ 75.615).
(7) Energy conservation (§ 75.616).
(8) Access for individuals with disabilities (§ 75.617).
(9) Safety and health standards (§ 75.618).
64. Revise § 75.603 to read as follows:
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 § 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.
65. Revise § 75.604 to read as follows:
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).
66. Revise § 75.605 to read as follows:
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.
67. Revise § 75.606 to read as follows:
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 § 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.
[Removed and Reserved]68. Remove and reserve §§ 75.607 through 75.609.
69. Revise § 75.610 to read as follows:
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.
70. Revise § 75.611 to read as follows:
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.
71. Revise § 75.612 to read as follows:
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.
72. Revise § 75.613 to read as follows:
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).
73. Revise § 75.614 to read as follows:
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. ( print 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).
74. Revise § 75.615 to read as follows:
Build America, Buy America Act.A grantee must comply with the requirements of the Build America, Buy America Act, Pub. L. 117-58, § 70901 through 70927 and implementing regulations, as applicable.
75. Revise § 76.616 to read as follows:
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: EDGAR@ed.gov. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email fr.inspection@nara.gov. 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.
76. Revise § 75.617 to read as follows:
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.
[Redesignated as § 75.619]77. Redesignate § 75.618 as § 75.619.
78. Add new § 75.618 to read as follows:
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.
79. Revise § 75.620 to read as follows:
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.
80. Revise § 75.622 to read as follows:
Definition of “project materials.”As used in §§ 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.)
81. Add § 75.623 to read as follows:
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.
82. Remove the undesignated center heading “Inventions and Patents” preceding § 75.626.
83. Amend § 75.626 by:
a. Revising the section heading; and
b. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
84. Revise § 75.650 to read as follows:
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 §§ 76.650 through 76.662.
[Amended]85. Amend § 75.682 by: ( print page 70334)
a. Removing the word “shall” and adding in its place the word “must”;
b. Removing the words “of 1970” after the words “Animal Welfare Act”; and
c. Removing the parenthetical authority citation at the end of the section.
86. Revise § 75.700 to read as follows:
Compliance with the U.S. Constitution, statutes, regulations, stated institutional policies, and applications.A grantee must comply with § 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.
[Amended]87. Amend § 75.702 by removing the word “insure” and adding in its place the word “ensure”.
88. Amend § 75.708 by:
a. Revising paragraph (b) introductory text;
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”;
c. In paragraph (d)(3), removing the word “anti-discrimination” and adding in its place the word “nondiscrimination”;
d. Revising paragraph (e); and
e. Removing the parenthetical authority citation at the end of the section.
The revisions read as follows:
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).
89. Amend § 75.720 by:
a. In paragraph (a)(1), remove the citation “ 2 CFR 200.327” and adding in its place the citation “2 CFR 200.328”;
b. In paragraph (a)(2), removing the citation “ 2 CFR 200.328” and adding in its place the citation “2 CFR 200.329”;
c. Adding paragraph (d); and
d. Removing the parenthetical authority citation at the end of the section.
The addition reads as follows:
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.
90. Amend § 75.732 by:
a. Redesignating paragraph (b)(2) as paragraph (b)(3) and adding the word “project” after the words “Revise those”.
b. Adding a new paragraph (b)(2).
The addition reads as follows:
Records related to performance.* * * * *(b) * * *
(2) Inform periodic review and continuous improvement of the project plans; and
* * * * *91. Amend § 75.740 by:
a. In paragraph (a), revising the parenthetical sentence at the end;
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
c. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
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”.)
* * * * *[Amended]92. Amend § 75.900 by removing “ED” in paragraphs (a) and (b) and adding in its place the words “the Department”.
[Amended]93. Amend § 75.901 by:
a. In the introductory text, removing the words “that are not subject to other procedures”; and
b. Removing the parenthetical authority citation from the end of the section.
PART 76—STATE-ADMINISTERED FORMULA GRANT PROGRAMS
94. The authority citation for part 76 is revised to read as follows:
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.
95. The part heading for part 76 is revised to read as set forth above.
96. Revise § 76.1 to read as follows:
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.
97. Amend § 76.2 by removing the parenthetical authority citation at the end of the section.
98. Revise § 76.50 to read as follows:
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.
[Amended]99. Amend § 76.51 by:
a. In the introductory text, removing the words “a program statute authorizes” and adding in their place “applicable statutes and regulations authorize”; and
b. Removing the parenthetical citation authority at the end of the section.
[Amended]100. Amend § 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).
[Amended]101. Amend § 76.100 by removing the words “the authorizing statute and implementing regulations” and adding in their place the words “applicable statutes and regulations”.
102. Revise § 76.101 to read as follows:
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.
103. Revise § 76.102 to read as follows:
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.
104. Revise § 76.103 to read as follows:
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.
[Amended]105. Amend § 76.125 by:
a. In paragraph (b), removing “the Trust Territory of the Pacific Islands,”;
b. In paragraph (c), adding “, consistent with applicable law” after the word “Department”; and
c. Removing the parenthetical authority citation at the end of the section.
[Amended]106. Amend § 76.127 by:
a. In the introductory text, removing the words “of the programs listed in § 76.125(c)” and adding in their place the words “State-administered formula grant programs”; and
b. Removing the parenthetical authority citation at the end of the section.
107. Amend § 76.128 by:
a. Removing the words “of the programs listed in § 76.125(c)” and adding in their place the words “State-administered formula grant programs”;
b. Revising the example at the end of the section; and
c. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
What is a consolidated grant?* * * * *Example 1 to § 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.
108. Amend § 76.129 by:
a. Revising the example after paragraph (a) and the example after paragraph (b).
b. Removing the parenthetical authority citation at the end of the section.
The revisions read as follows:
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.
[Amended]109. Amend § 76.130 by: ( print page 70336)
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
b. Removing the parenthetical authority citation at the end of the section.
[Amended]110. Amend § 76.131 by:
a. In paragraph (a), removing the words “programs listed in § 76.125(c)” and adding in their place the words “State-administered formula grant programs”;
b. In paragraph (b), removing the words “the authorizing statutes and regulations” and adding in their place the words “applicable statutes and regulations”;
c. In paragraph (c)(1), removing the words “programs in § 76.125(c)” and adding in their place the words “State-administered formula grant programs”;
d. In paragraph (c)(2), removing the words “program or programs in § 76.125(c)” and adding in their place the words “State-administered formula grant programs”; and
e. Removing the parenthetical authority citation at the end of the section.
[Amended]111. Amend § 76.132 by:
a. In paragraphs (a)(2), removing the word “authorizing” and adding in its place the word “applicable”;
b. In paragraph (a)(4), removing the word “assure” and adding in its place the word “ensure”;
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”;
d. In paragraph (a)(9), removing the word “authorizing” and adding in its place the word “applicable”; and
e. Removing the parenthetical authority citation at the end of the section.
112. Amend § 76.134 by:
a. Revising paragraph (a);
b. In paragraph (b), removing the words “applicable program statutes” and adding in their place the words “applicable statutes”; and
c. Removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
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.
* * * * *[Amended]113. Amend § 76.136 by:
a. Removing the words “programs described in § 76.125(c)” and adding in their place the words “State-administered formula grant programs”; and
b. Removing the parenthetical authority citation at the end of the section.
114. Revise § 76.140 to read as follows:
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.
[Removed and Reserved]115. Remove and reserve §§ 76.141 and 76.142.
[Amended]116. Amend § 76.260 by:
a. In the section heading, removing the words “program statute” and adding in their place the words “applicable statutes”.
b. Removing the words “the authorizing statute” wherever they appear and adding in their place the words “applicable statutes”.
117. Revise § 76.301 to read as follows:
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.
[Amended]118. Amend § 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”.
119. Revise § 76.401 to read as follows:
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 ( print 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.
120. Amend § 76.500 by revising paragraph (a) and removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
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, color, or national origin Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) 34 CFR part 100. Discrimination on the basis of disability Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 34 CFR part 104. Discrimination on the basis of sex Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) 34 CFR part 106. Discrimination on the basis of age Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) 34 CFR part 110. * * * * *[Amended]121. Amend § 76.532 by removing the parenthetical authority citation at the end of the section.
[Amended]122. Amend § 76.533 by:
a. Removing the words “the authorizing statute” and adding in their place the words “applicable statutes”; and
b. Removing the parenthetical authority citation at the end of the section.
123. Revise § 76.560 to read as follows:
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. ( print 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 §§ 76.564 through 76.569 for a grantee to satisfy the statutory requirements of certain programs administered by the Department.
124. Revise § 76.561 to read as follows:
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.
125. Add § 76.562 to read as follows:
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 § 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.
[Amended]126. Amend § 76.563 by:
a. Removing the words “agencies of State and local governments that are grantees under”;
b. Removing the words “their subgrantees” and adding in their place the word “subgrants”; and
c. Removing the parenthetical authority citation at the end of the section.
127. Revise § 76.654 to read as follows:
Restricted indirect cost rate formula.(a) An indirect cost rate for a grant covered by §§ 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 §§ 76.565 through 76.567.
(c) Under the programs covered by § 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.
[Amended]128. Amend § 76.565 by removing the parenthetical authority citation at the end of the section.
[Amended]129. Amend § 76.566 by:
a. In the introductory text, adding the word “allowable” before the words “indirect costs”; and
b. Removing the parenthetical authority citation at the end of the section.
130. Amend § 76.567 by:
a. Revising paragraph (b)(3);
b. In paragraph (b)(7), removing the punctuation and word “; and”;
c. Redesignating paragraph (b)(8) as paragraph (b)(9);
d. Adding a new paragraph (b)(8); and
e. Removing the parenthetical authority citation at the end of the section.
The revision and addition read as follows:
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
* * * * *[Amended]131. Amend § 76.568 by:
a. In paragraph (c), adding the word “(denominator)” after the word “expenditures”; and
b. Removing the parenthetical authority citation at the end of the section.
132. Amend § 76.569 by:
a. Revising paragraph (a) and removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
Using the restricted indirect cost rate.(a) Under the programs referenced in §§ 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) × (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)
* * * * *[Amended]133. Amend § 76.580 by removing the parenthetical authority citation at the end of the section.
134. Revise § 76.600 to read as follows:
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 ( print 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).
135. Revise the undesignated center heading before § 76.650 and revise § 76.650 to read as follows:
Participation of Private School Children, Teachers or Other Educational Personnel, and Families
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 §§ 76.651 through 76.662.
136. Revise § 76.652 to read as follows:
Consultation with representatives of private school students.A subgrantee must consult with appropriate private school officials in accordance with the requirements in § 299.7.
[Amended]137. Amend § 76.661(c) by removing the word “insure” and adding in its place the word “ensure”.
[Amended]138. Amend § 76.662 by removing the word “insure” and adding in its place the word “ensure”.
[Removed and Reserved]139. Remove the undesignated center heading “Equitable Services under the CARES Act” above § 76.665 and remove and reserve § 76.665.
[Removed and Reserved]140. Remove the undesignated section heading “Procedures for Bypass” above § 76.670 and remove and reserve §§ 76.670 through 76.677.
[Amended]141. Amend § 76.682 by removing the parenthetical authority citation at the end of the section.
[Amended]142. Amend § 76.702 by removing the word “insure” and adding in its place the word “ensure”.
143. Amend § 76.707 by revising paragraph (h) and removing the parenthetical authority citation at the end of the section.
The revision reads as follows:
When obligations are made.* * * * *If the obligation is for— The obligation is made— * * * * * * * (h) A pre-agreement cost that was properly approved by the Secretary under the cost principles in 2 CFR part 200, subpart E On the first day of the grant or subgrant period of performance.
Document Information
- Effective Date:
- 9/30/2024
- Published:
- 08/29/2024
- Department:
- Education Department
- Entry Type:
- Rule
- Action:
- Final regulations.
- Document Number:
- 2024-17239
- 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.
- Pages:
- 70300-70346 (47 pages)
- Docket Numbers:
- Docket ID ED-2023-OPEPD-0110
- RINs:
- 1875-AA14: EDGAR Revisions
- RIN Links:
- https://www.federalregister.gov/regulations/1875-AA14/edgar-revisions
- Topics:
- Accounting, Accounting, Administrative practice and procedure, Administrative practice and procedure, American Samoa, Copyright, Education, Education, Education, Elementary and secondary education, Grant programs-education, Grant programs-education, Grant programs-education, Grant programs-education, Guam, Incorporation by reference, Incorporation by reference, Indemnity payments, Intergovernmental relations, Inventions and patents, Northern Mariana Islands, Pacific Islands Trust Territory, ...
- PDF File:
- 2024-17239.pdf