E8-28010. Rehabilitation Training

AGENCY:

Office of Special Education and Rehabilitative Services, Department of Education.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Secretary proposes to amend the regulations governing the Rehabilitation Training Program. The amendment is needed to clarify the membership of advisory committees for projects funded under this program.

DATES:

We must receive your comments on or before December 26, 2008.

ADDRESSES:

Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by e-mail. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies. In addition, please include the Docket ID at the top of your comments.

• Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “How To Use This Site.”
• Postal Mail, Commercial Delivery, or Hand Delivery. If you mail or deliver your comments about the proposed regulation, address them to Ruth Brannon, U.S. Department of Education, 400 Maryland Avenue, SW., room 5052, Potomac Center Plaza (PCP), Washington, DC 20202-2800.

Privacy Note:

The Department's policy for comments received from members of the public (including those comments submitted by mail, commercial delivery, or hand delivery) is to make these submissions available for public viewing in their entirety on the Federal eRulemaking Portal at http://www.regulations.gov Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available on the Internet.

FOR FURTHER INFORMATION CONTACT:

Ruth Brannon. Telephone: [phone] or via Internet: [e-mail].

If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments regarding the proposed regulation. We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from this proposed regulation. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about the proposed regulation by accessing Regulations.gov You may also inspect the comments, in person, in room 5053, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed regulation. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background

Current 34 CFR 385.40 lists members of minority groups as one of the categories of mandatory participants on advisory committees for projects funded under the Rehabilitation Training Program. We propose to amend § 385.40 by removing the requirement that a grantee include members of minority groups on its project advisory committee and adding a requirement that a grantee include individuals who are knowledgeable about the needs of individuals with disabilities from diverse groups, including minority groups.

These proposed changes would make 34 CFR 385.40 consistent with the Supreme Court ruling in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), in which the Court held that classifications based upon race or national origin are consistent with equal protection requirements of the Constitution only if they are narrowly tailored measures that further compelling governmental interests. The Secretary believes that current § 385.40 is not consistent with the equal protection requirements because it constitutes a quota based upon race or national origin that is not narrowly tailored in a manner that furthers a compelling government interest.

Thus, these proposed changes are necessary to ensure that grantees do not select individuals to serve on project advisory committees on the basis of their race or national origin. These changes also would add a new requirement that project advisory committees have members who are knowledgeable about the needs of individuals with disabilities from diverse groups, including minority groups. This new requirement would ensure that the committees have broader knowledge of the diverse range of needs of individuals with disabilities.

Significant Proposed Regulations

We discuss here the substantive issues regarding the proposed changes. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.

Section 385.40 What are the requirements pertaining to the membership of a project advisory committee?

Statute: Section 302 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 772), authorizes the Department to provide grants to eligible entities to increase the numbers and upgrade the skills of qualified rehabilitation personnel. Under this authority, the Department implements the Rehabilitation Training Program.

Current Regulation: Current § 385.40 requires that, if a project funded under 34 CFR parts 386 through 390 or part 396 (the Rehabilitation Training Program) establishes an advisory committee, its membership must include individuals with disabilities or parents, family members, guardians, advocates, or other authorized representatives of the individuals; members of minority groups; trainees; and providers of vocational rehabilitation and independent living rehabilitation services.

Proposed Regulation: Proposed § 385.40 would remove “members of minority groups” and add “individuals who are knowledgeable about the needs of individuals with disabilities from diverse groups, including minority groups.”

Reasons: The proposed changes would make clear that grantees cannot select project advisory committee members on the basis of their race or national origin. The proposed changes also would achieve the Department's objective for project advisory committees to include individuals who are knowledgeable about the needs of individuals with disabilities from diverse groups. Grantees would be able to select individuals, including individuals who are members of minority groups, as advisory committee members if they possess knowledge of the needs of individuals with disabilities from diverse groups or meet one of the other membership requirements in § 385.40. By no longer constituting a quota based upon race or national origin, this requirement is consistent with the Adarand case and the equal protection requirements of the Constitution.

Executive Order 12866

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and therefore subject to the requirements of the Executive order and review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments, or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) create novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Secretary has determined that this regulatory action is not significant under the Executive order.

1. Potential Costs and Benefits

Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action. The benefits accruing to the Rehabilitation Training Program resulting from this proposed amendment outweigh the costs of making the changes. The proposed regulation would benefit grantees by requiring advisory committees to have members who are knowledgeable about the needs of individuals with disabilities, thereby making the committee a more effective advisor to the grantee. The requirement to select committee members with knowledge of the needs of individuals with disabilities from diverse groups would not impose a cost the grantee would not otherwise incur in the process of creating an advisory committee.

We have also determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

2. Clarity of the Regulations

Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make the proposed regulation easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulation clearly stated?
• Does the proposed regulation contain technical terms or other wording that interferes with its clarity?
• Does the format of the proposed regulation (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
• Would the proposed regulation be easier to understand if we divided it into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 385.40.)
• Could the description of the proposed regulation in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulation easier to understand? If so, how?
• What else could we do to make the proposed regulation easier to understand?

To send any comments that concern how the Department could make the proposed regulation easier to understand, see the instructions in the ADDRESSES section of this preamble.

Regulatory Flexibility Act Certification

The Secretary certifies that the proposed regulation would not have a significant economic impact on a substantial number of small entities. The proposed regulation would affect States and public or nonprofit agencies and organizations, including Indian tribes and institutions of higher education, that are eligible to receive funding under the Rehabilitation Training Program. Some of these entities would be considered small entities according to the U.S. Small Business Administration Size Standards. However, the changes in the proposed regulation would not have a significant economic impact on applicants in terms of the cost of establishing a project advisory committee under this program.

Paperwork Reduction Act of 1995

The proposed regulation does not contain any information collection requirements.

Intergovernmental Review

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Assessment of Educational Impact

In accordance with section 441 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether the proposed regulation would require transmission of information that any other agency or authority of the United States gathers or makes available.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/​news/​fedregister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at [phone].

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.gpoaccess.gov/​nara/​index.html.

(Catalog of Federal Domestic Assistance Numbers: 84.129 Long Term Training; 84.275 Special Programs, National Clearinghouse of Rehabilitation Training Materials; 84.264 Rehabilitation Continuing Education Programs; 84.160 Training of Interpreters for Deaf Individuals; 84.265 In-Service Training; 84.246 Short Term Training; 84.263 Experimental and Innovative Training; 84.246 Special Programs, Client Assistance Program Training; 84.315 Capacity Building Projects for Traditionally Underserved Populations.)

List of Subjects in 34 CFR Part 385

• Education
• Grant programs—education
• Reporting and recordkeeping requirements
• Vocational rehabilitation

Dated: November 20, 2008.

Tracy R. Justesen,

Assistant Secretary for Special Education and Rehabilitative Services.

For the reasons discussed in the preamble, the Secretary proposes to amend part 385 of title 34 of the Code of Federal Regulations as follows:

PART 385—REHABILITATION TRAINING

1. The authority citation for part 385 is revised to read as follows:

Authority: 29 U.S.C. 709(c) and 772, unless otherwise noted.

2. Section 385.40 is revised to read as follows:

§ 385.40

What are the requirements pertaining to the membership of a project advisory committee?

If a project funded under 34 CFR parts 386 through 390 or 34 CFR part 396 establishes an advisory committee, its membership must include individuals with disabilities or parents, family members, guardians, advocates, or other authorized representatives of the individuals; individuals who are knowledgeable about the needs of individuals with disabilities from diverse groups, including minority groups; trainees; and providers of vocational rehabilitation and independent living rehabilitation services.

(Authority: Sec. 12(c) of the Act; 29 U.S.C. 709(c))