Education Department General Administrative Regulations and Related Regulatory Provisions

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of this Regulatory Action: The last major update to EDGAR was in 2013. Given that EDGAR serves as the foundational set of regulations for the Department, we have reviewed EDGAR, evaluated it for provisions that, over time, have become outdated, unnecessary, or inconsistent with other Department regulations, and identified ways in which EDGAR could be updated, streamlined, and otherwise improved. Specifically, we amend parts 75, 76, 77, 79, and 299 of title 34 of the Code of Federal Regulations.

Summary of Major Provisions of This Regulatory Action

The final EDGAR provisions:

• Make technical updates to refer to up-to-date statutory authorities, remove outdated terminology, use consistent references, and eliminate obsolete cross-references.
• Align EDGAR with updates in the most recent reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA). For example, updates to EDGAR revise the tiers of evidence to incorporate and generally parallel those in the ESEA and specify the procedures used to give special consideration to an application supported by evidence in § 75.226.
• Clarify, streamline, and expand the selection criteria the Secretary may use to make discretionary awards under § 75.210.
• Clarify procedural approaches, such as those related to making continuation awards under § 75.253, and exceptions to the typical process for new awards under § 75.219, such as if a grant application had been mishandled.
• Improve public access to research and evaluation related to Department-funded projects by requiring, under §§ 75.590 and 75.623, that each grantee that prepares an evaluation or a peer-reviewed scholarly publication as part of the grant award or on the basis of grant-funded research make the final evaluation report or peer-reviewed scholarly publication available through the Education Resource Information Center (ERIC), which is the current practice of the Department's Institute of Education Sciences (IES).
• Expand and clarify flexibility for the Department in administering its grants programs, including by—

○ Providing the Department the option to require applicants under grant programs to include a logic model or other conceptual framework supporting their proposed project under § 75.112;

○ Replacing the definition in § 75.225 of “novice applicant” with a broader definition of “new potential grantee,” to allow additional flexibility to give special consideration to such grantees and to increase equity in the applicant pool and recipients of Department funds;

○ Allowing the Department to require a grantee to conduct an independent evaluation of its project and make the results of such an evaluation public under § 75.590;

○ Defining “independent evaluation” under § 77.1(c);

○ Clarifying for the first time that, under § 76.50, where not prohibited by law, regulation, or the terms and conditions of the grant award, State agencies have subgranting authority;

○ Allowing States flexibility under § 76.140 to adopt a process for amending a State plan that is distinct from the process used for initial approval; and

○ Clarifying the hearing and appeal process under § 76.401 for subgrants of State-administered formula grant programs, including by clarifying that aggrieved applicants must allege that a specific Federal or State statute or regulation has been violated.

Costs and Benefits: As further detailed in the Regulatory Impact Analysis section, the benefits of these final regulations will outweigh any associated costs to States, local educational agencies (LEAs), and other Department applicants and grantees. The final regulations will, in part, update terminology to align with applicable statutes and regulations. Many of the adjustments will support the Department in selecting high-quality grantees and those grantees in ensuring the effectiveness and continuous improvement of their projects. These changes include, for example, adding selection criteria that apply only to programs that elect to use them, as announced in a notice inviting applications (NIA), and clarifying the language in selection criteria for applicants and peer reviewers. Please refer to the Regulatory Impact Analysis section of this document for a more detailed discussion of costs and benefits. The Administrator of the Office of Information and Regulatory Affairs (OIRA) has determined this to be a significant regulatory action under Executive Order 12866, as amended most recently by Executive Order 14094, and therefore has been subject to review by OIRA.

Supplementary Information—General: On January 11, 2024, the Secretary published a Notice of Proposed Rulemaking (NPRM) for these amendments in the Federal Register (89 FR 1982).

There are differences between some of the selection criteria and definitions proposed in the NPRM and those established in these final regulations, as discussed in the Analysis of Comments and Changes section below.

We recognize that the Office of Management and Budget (OMB) updated the Uniform Administrative Requirements, Cost Principles, and Audit Requirements (the Uniform Guidance) on April 22, 2024 (89 FR 30046). Many of the changes in EDGAR align with the goals behind the changes in the Uniform Guidance, and the Department will continue to review EDGAR, as needed, to ensure alignment with the Uniform Guidance.

Incorporation by Reference: Section 75.616 incorporates by reference the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) Standard 90.1-2022. ASHRAE is included in the construction section focused on energy conservation and has been included in EDGAR for more than 30 years. The ASHRAE standards are the industry leading standards and are relevant to the construction regulations in this section of EDGAR because grantees need to know the current standard with which they must comply. Standard 90.1 has been a benchmark for commercial building energy codes in the United States, and a key basis for codes and standards around the world, for almost half a century. This standard provides the minimum requirements for energy-efficient design of most sites and buildings, except low-rise residential buildings. It offers, in detail, the minimum energy efficiency requirements for design and construction of new sites and buildings and their systems, new portions of buildings and their systems, and new systems and equipment in existing buildings, as well as criteria for determining compliance with these requirements. It is an indispensable reference for engineers and other professionals involved in design of buildings, sites, and building systems. This standard is available to the public at www.ashrae.org/technical-resources/bookstore/standard-90-1, and a read-only version is available at https://www.ashrae.org/technical-resources/standards-and-guidelines/read-only-versions-of-ashrae-standards . This final rule also will remove outdated versions of the ASHRAE standard from § 75.616.

Section 77.1 incorporates by reference the What Works Clearinghouse (WWC) Procedures and Standards Handbook, Version 5.0. The purpose of the WWC is to review and summarize the quality of existing research in educational programs, products, practices, and policies. We incorporate the Handbook, which provides a detailed description of the standards and procedures of the WWC, by reference. The Handbook is available to interested parties at https://ies.ed.gov/ncee/wwc/Handbooks . As the Handbook is available as a free download, it is reasonably available to the public. The Version 5.0 Handbook includes a new Chapter I, Overview of the What Works Clearinghouse and Its Procedures and Standards and aligns the flow of content with the study review process. Additionally, it no longer allows for topic-specific customization of the standards, aligns its effectiveness ratings with the evidence definitions in § 77.1(c), and describes other protocols for specific study designs. More details are available at https://ies.ed.gov/ncee/WWC/Docs/referenceresources/Final_HandbookSummary-v5-0-508.pdf .

The WWC is an initiative of the Department's National Center for Education Evaluation and Regional Assistance, within IES, which was established under the Education Sciences Reform Act of 2002 (Title I of Pub. L. 107-279). The WWC is an important part of the Department's strategy to use rigorous and relevant research, evaluation, and statistics to inform decisions in the field of education. The WWC provides critical assessments of scientific evidence on the effectiveness of education programs, policies, products, and practices (referred to as “interventions”) and a range of publications and tools summarizing this evidence. The WWC meets the need for credible, succinct information by reviewing research studies, assessing the quality of the research, summarizing the evidence of the effectiveness of interventions on student outcomes and other outcomes related to education, and disseminating its findings broadly.

This handbook is available to the public at https://ies.ed.gov/ncee/wwc/handbooks#procedures .

Public Comment: In response to our invitation in the NPRM, 28 unique parties submitted comments on the proposed regulations. We group major issues according to subject.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the regulations since publication of the NPRM follows. Generally, we do not address technical or minor comments or comments that are not relevant to the proposed changes in the NPRM.

General Comments

Comments: Multiple commenters offered general support for the proposed changes to EDGAR and appreciated the specificity of the proposed changes and the removal of conflicting regulations. One commenter appreciated the focus on using and building evidence in the Department's grant programs. One commenter recommended finalizing the updates to EDGAR in time for fiscal year (FY) 2025 grant competitions. Additionally, commenters appreciated the Department's effort to reduce barriers for underserved populations.

Multiple commenters appreciated the focus on continuous improvement in the proposed changes and recommended additional locations for such focus in provisions governing discretionary and formula awards. One commenter urged the Department to ensure it sets clear expectations in its NIAs so that applicants with the greatest need and the opportunity for greatest impacts receive funding. The commenter specifically called for clear expectations by the Department in how it will continuously improve its grantmaking efforts, including how the Department clearly communicates the selection criteria in its NIAs, how those criteria are scored, and expectations for grantee performance.

Discussion: We appreciate the support for the proposed changes and agree that they will provide specificity and clarity regarding Department processes and the purpose of these regulations and will better serve the needs of underserved populations. We agree on the importance of continuous improvement and address comments related to specific proposed additions in the relevant sections below. The proposed revisions to § 75.210, discussed further below, are intended to strengthen expectations around need and significance and how applicants address those selection criteria.

Lastly, we appreciate the value of these final regulations for upcoming and future grant competitions. We will consider approaches to using these criteria that advance the goal of best positioning applicants and grantees to continuously improve their practices while implementing their projects. With respect to grantmaking expectations, the Department continues to focus on simplifying NIAs and clarifying the focus on outcomes for communities served.

Changes: None.

34 CFR Part 75—Direct Grant Programs

Sections 75.101 and 75.102 Information in the Application Notice That Helps An Applicant Apply; Deadline Date for Applications

Comments: One commenter encouraged the Department to consider additional revisions to EDGAR that were not part of the NPRM, focused on the Department's outreach efforts when announcing grant competitions and support to applicants during the application period. Specifically, the commenter proposed revisions to §§ 75.100 through 75.102 to add LEA outreach efforts and to specify longer application periods (90 days or more) for competitions where LEAs are eligible applicants.

Discussion: The Department recognizes the importance of outreach in its discretionary grant competitions. Outreach and technical assistance efforts are a part of the Department's ongoing grant planning conversations, and the Department actively pursues outreach through stakeholders and partner organizations, online forums, and grant competition summary documents such as brochures. Outreach also includes technical assistance for applicants during the application period, including through webinars and other efforts to ensure applicant questions are addressed. The Department shares the interest in continuously improving outreach efforts to support increased awareness of grant opportunities and to ensure all potential grantees are competitive. We appreciate the recommendation to specify outreach efforts in §§ 75.100 and 75.101 but decline the revisions proposed by commenters because the Department needs to determine the best approach for each program based on the potential applicants, lessons learned from previous efforts, and new and creative approaches.

Regarding the proposed 90-day minimum application period in § 75.102 for competitions where LEAs are eligible applicants, we are continually looking for ways to ensure a sufficient grant application period for our competitions, supporting efforts to make grant awards earlier in the year, and also ensuring that grant awards are made early enough to support efficient implementation timelines and to ensure appropriated funds do not lapse. Given the complexity of grant competitions, including those where LEAs are the eligible applicants, the Department needs discretion in establishing appropriate deadlines and therefore declines to make this change.

Changes: None.

Section 75.110 Information Regarding Performance Measurement

Comments: We received two comments on the proposed revisions to § 75.110 regarding performance measures. Both commenters generally supported the proposed revisions and the Department's effort to clearly differentiate between program and project-specific performance measures, and the commenters believe the proposed changes will lead to better quality data. The commenters proposed adding a new paragraph (d) to § 75.110 allowing applicants and grantees to propose alternative measures, baseline data, or targets related to program goals and objectives.

Discussion: We appreciate the support for the proposed revisions to § 75.110. Regarding the proposed paragraph (d), applicants and grantees already are permitted to propose alternative performance measures, baseline data, and targets in the form of project-specific measures. See § 75.110(a). As such, we do not think the additional paragraph is necessary.

Changes: None.

Section 75.112 Include a Proposed Project Period and a Timeline

Comments: Multiple commenters offered support for the proposed revisions to § 75.112, stating that the benefit of a logic model—requiring applicants to connect project activities to outcomes outweighed any additional cost or time in its preparation. One commenter noted the value of connecting the outcomes in the logic model with a project's performance measures, and another commenter mentioned how logic models help summarize the project's intent, activities, and outcomes.

Multiple commenters recommended redesignating proposed paragraph (c) as a new paragraph (d), adding a new paragraph (c) that would require a continuous improvement plan, and expanding redesignated paragraph (d) to require a conceptual framework, which is broader than a logic model and accounts for other ways an applicant can demonstrate a connection between inputs and outcomes. The commenters recommended including a continuous improvement requirement so that applicants would make clear how they would use research, data, community engagement, and other feedback to inform the grant project.

A few commenters raised concerns about the proposed requirement for a logic model in § 75.112, worried it would potentially limit applications, especially applications from smaller, less experienced entities who lack resources (both time and funding) to apply for Federal grant funds and add an application requirement that, they believe, would not result in substantive improvement in the quality of the application. The commenters felt such applicants may be unsure about how to articulate their project's reasoning in the form of a logic model or about using a specific template, and were concerned about the amount of time and burden associated with using a template. In addition, these commenters raised concerns that the logic model might satisfy the requirement but might not actually be aligned with the proposed project or the evaluation plan for the project, including consideration of the local context. They also stated that logic models are often developed by grant writers, which would favor entities that can afford such a writer.

Discussion: We appreciate the commenters' feedback on the proposed revisions to § 75.112. We note that the inclusion of a logic model as an option in EDGAR does not mean that all grant programs will require one. We consider several things when designing a grant competition, including the purpose of the program, the types of applicants and their experience in applying for Department grants, as well as which selection criteria to use for the competition.

We agree with the commenters interested in ensuring grantees have continuous improvement plans for their projects. The final selection criteria in § 75.210 include factors that evaluate the elements of an applicant's logic model, such as how inputs are related to outcomes and the likely benefit to the intended recipients, as indicated by the logic model, which address the commenters' concern about alignment with the proposed project and its intended outcomes. The final selection criteria in § 75.210 also include factors requiring applicants to consider how the proposed project design focuses on continuous improvement efforts, such as establishing targets, using data, and gathering community member and partner input to measure progress and inform continuous improvement. We are revising paragraph (b) to include the requirement to discuss continuous improvement in relation to the logic model or within the applicant's project narrative.

We also agree with the commenters' suggestion that broadening the language beyond “logic model” allows for other frameworks that connect activities and outcomes, without requiring a specific logic model format, and therefore added “conceptual framework”.

The Department currently does not have a specific logic model template. If a logic model is used in a particular grant competition, the Department will provide technical assistance and resources to help applicants design their logic model, which may include the Regional Educational Laboratory Program's (REL Pacific) Education Logic Model Application, available at https://ies.ed.gov/ncee/rel/Products/Region/pacific/Resource/100677, and other resources including https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014025.pdf, https://ies.ed.gov/ncee/edlabs/regions/pacific/pdf/REL_2014007.pdf, and https://ies.ed.gov/ncee/edlabs/regions/northeast/pdf/REL_2015057.pdf . The Department agrees with the commenter that it is important to develop these resources to support all applicants, and we value the role of partners in the education community who provide resources to support the development of logic models. Partners are a key element of supporting evidence-based policymaking in our shared efforts to improve opportunities and outcomes for learners.

Changes: We have revised paragraph (b) in § 75.112 to add information about what details related to continuous improvement must be addressed in the project narrative as well as added “project narrative” to the title of § 75.112, and revised paragraph (c) to include a “conceptual framework.”

Section 75.125 Submit a Separate Application to Each Program

Comments: Two commenters proposed a revision to § 75.125 to allow the Secretary to establish a common application process across multiple grant programs. The commenters were interested in making it easier for applicants to access Federal funds and to streamline application requirements.

Discussion: We share the commenters' interest in reducing applicant burden. The Department has the authority to establish a common application process where appropriate, taking into account the statutes, purposes, and requirements of each grant program, so specifically recognizing such authority in the regulations is not necessary.

Changes: None.

Section 75.210 General Selection Criteria

Comments: We received multiple comments on the proposed revisions to the selection criteria. Commenters were generally supportive. Some proposed revisions or additional selection factors, which are described further below. Multiple commenters supported linking the selection criteria to the components of an applicant's logic model. Commenters also appreciated the focus on underserved populations when addressing the need for, and significance of, a proposed project.

Regarding paragraph (a) (“need for the project”), some commenters suggested including language to emphasize the comprehensiveness of the data required in factor (i), which considers how the applicant's data demonstrate the issue, challenge, or opportunity to be addressed by the project, and language requiring coordination with other programs and services. Some commenters also expressed support for factor (iv), which considers the extent to which the project focuses on serving or addressing the needs of underserved populations.

Regarding paragraph (b) (“significance”), commenters recommended revisions to factors (v), (xi), and (xvii) that focused on measurable improvement, data infrastructure, and data analysis, citing the importance of using data to determine need and significance. Another commenter expressed general support for factor (xii) and its focus on dissemination of information beyond the individual grant so others can learn from these Federal investments. One commenter sought clarity about the meaning of the word “innovative” with respect to the factors in paragraph (b), concerned that peer reviewers' understanding of the term could widely vary.

Regarding paragraph (c) (“quality of the project design”), two commenters proposed revisions to factors (v) and (x) to emphasize the use of administrative data and reusable data tools in project design. Another commenter expressed general support for the focus on formative research in factor (xx) and the focus on continued refinement of a project based on initial findings. One commenter proposed a new factor for paragraph (c) focused on sharing the research design, methods, and preliminary outcomes early in the project timeline to ensure the quality of the research. One commenter appreciated the focus on meaningful community engagement in factor (xviii). One commenter raised a general concern about utilizing too many factors from paragraph (c) in an NIA, worried it would complicate the NIA and disadvantage less experienced applicants.

With respect to paragraph (d) (“quality of project services”), two commenters proposed a revision to factor (xii) to include how data from other social services or programs will be utilized to inform the project services.

We received multiple comments regarding paragraph (e) (“quality of the project personnel”). Specifically, multiple commenters appreciated the focus of ensuring diverse perspective in factor (iv); commenters were concerned, however, that an emphasis on having the project team reflect the demographics of project participants might limit other personnel with relevant experience, or that personnel might not be willing to share their demographics. One commenter proposed inclusion of “proximate, lived experiences” to broaden the focus of the factor. Another commenter was concerned that this factor might result in a researcher that is considered to be project personnel prioritizing samples that are reflective of their own demographics. One commenter proposed a new factor under paragraph (e) on project personnel using technology for data collection and analysis.

In paragraph (f) (“adequacy of resources”), one commenter appreciated factor (iv) and its focus on the reasonableness of costs in relation to people served, and two commenters proposed a new factor focused on “leveraging shared data and evaluation infrastructure,” consistent with the commenters' recommendations of including a focus on data throughout the selection criteria.

In paragraph (g) (“quality of the management plan”), two commenters recommended a revision to factor (ii) to include “shared data and evaluation infrastructure,” consistent with the commenter's interest in seeing the use of data across the selection criteria.

We received multiple comments on paragraph (h) (“quality of the evaluation plan or other evidence-building”). One commenter was concerned about the factors' wide range in rigor, especially in relation to evaluation design, and sought clarification on the meaning of an independent evaluation, specifically whether the evaluator could be from a separate unit of the same organization. Two commenters proposed a new factor on including administrative data and the “depth of insights” from using such data in the project evaluation, citing the importance of such data in continuous improvement efforts.

One commenter offered general support for paragraph (i) (“strategy to scale”), understanding the importance of local context for scaling strategies. One commenter sought clarity on how “efficiency” is defined for purposes of the paragraph (i) factors. Two commenters proposed a new factor in paragraph (i) on data tools and infrastructure, continuing to emphasize the importance of using data, and building an infrastructure for data, in Department grant programs and grant projects.

Discussion: We appreciate the overall positive feedback on § 75.210 and commenters' proposed revisions. We agree that it is important to focus on underserved populations and to tie the selection criteria to an applicant's logic model.

Regarding the proposed revisions to paragraph (a) factor (i), while it is important for applicants to provide data to support the need for the project, it would be difficult to meaningfully define “comprehensive” for all contexts, as the type of level of data varies based on a program's purpose and the population to be served, and we note that there are other selection criteria that incorporate the concept of program or service coordination, such as the coordination with other Federal investments. As such, we are not including any of the proposed revision the factors under paragraph (a).

Under paragraph (b), we appreciate the general support for the dissemination focus in factor (xii). We agree that it is important for improvement to be “measurable” in (v) and that “data infrastructure” fits within the purpose of factor (xi), and revised those factors in paragraph (b) accordingly. As for the proposed revisions to factor (xvii) to incorporate a data analysis tool, we determined this would more appropriately fit within paragraph (i) (“strategy to scale”), and we have included a proposed a new factor (x) under paragraph (i) related to data tools and techniques. We decline to adopt a definition of “innovative” for the purposes of paragraph (b), because the meaning of that term could vary based on program purpose and context, and it's important for individual programs to decide its meaning. In some programs, for example, innovative may mean something that is novel, while in others it may refer to a program aspect that is specific to the population or setting to be served.

Regarding the comment about using too many factors in an NIA from paragraph (c), we agree that it is important to consider, when reviewing which selection criteria to include an NIA, which criteria and how many factors are necessary, weighing applicant burden and the peer review process as we make these determinations but are not making and changes, as determination regarding the appropriate number of selection criteria and factors are determined for each grant competition. We support the proposed revision to factor (v) under paragraph (c), as we agree with the use of administrative data to support continuous improvement, and we have revised paragraph (c) accordingly. We decline to revise factor (x) to require use of administrative data, because not all grant programs or projects result in the creation of data tools, and we do not want to unnecessarily restrict the use of this factor. We appreciate the support for factors (xviii) and (xx) and agree that community engagement, performance feedback, and formative data are important to continuous improvement efforts and project success. We decline to adopt the proposed new factor related to early registration of research design, because we do not think this is a marker of quality related to project design at the application phase. Rather, this issue is best handled in post-award monitoring.

We decline the proposed revision to factor (xii) in paragraph (d) to include how data from other programs will inform project services, because focusing on other programs dilutes the central purpose of this factor, which is ensuring that project services align with the needs of the target population.

Regarding comments on paragraph (e), factor (iv) is intended to encourage projects that hire individuals who can relate to the life experience, assets, and needs of the target population; we recognize, however, that the demographics language as proposed could unnecessarily limit how those qualities are determined. As such, we have revised factor (iv) to include consideration of the lived or relevant experiences of those in the target population to allow applicants the flexibility to select a project team that can best serve project participants, taking a range of relevant circumstances into account, and have made a similar revision regarding lived experiences in factor (ii). We also took into consideration, across factors, the appropriate use of “target population” and “project participants” within a given factor. Regarding the comment about a researcher prioritizing study samples that reflect their own demographic characteristics during a project evaluation, we think this factor relates to the qualifications and relevant experiences of the personnel of the project, not about the design of the evaluation and any potential biases in the evaluation design. While we appreciate the suggestion to add a factor emphasizing the use of technology to support data collection and analysis, we have determined that this concept is more appropriate as part of the “strategy to scale” factors in paragraph (i), and we have added a new factor (x) in paragraph (i) to that effect.

We appreciate the support for paragraph (f) and understand the importance of shared data infrastructure. As noted above, we have determined that this concept is more appropriate as part of the “strategy to scale” factors in paragraph (i), and we have added a factor (x) related to data tools and techniques in paragraph (i).

In paragraph (g), we recognize the importance of the management plan utilizing data but do not think it is necessary to add the data source or the infrastructure around the data, as it is important that the factor should be focused on the overall use of quantitative and qualitative data without creating further complications for applicants or peer reviewers.

We understand that expectations related to the project evaluation in the paragraph (h) factors differ in terms of rigor; however, variance in the evaluation factors is intentional to account for reasonable differences in a program's purpose, the size of a grant, and complexity of the project. Regarding the meaning of independent evaluation, the NPRM included a proposed definition of “independent evaluation” that is adopted in § 77.1(c) of these final regulations, and that definition specifies that the evaluation must be independent from the design and implementation of the project component, which could allow for a separate unit from an organization, as long as that unit is not involved in the development or implementation. As to the proposed new factor related to use of administrative data, we agree there is value in mentioning the use of administrative data and have added a new factor (xvi) to gauge the extent to which the evaluation will access and link high-quality administrative data from authoritative sources to improve evaluation quality and comprehensiveness. Because this language comprehensively encompasses use of high-quality administrative data, however, we decline to also include the commenter's proposed “depth of insights” language.

With respect to paragraph (i), we appreciate the positive comments recognizing the importance of scaling strategies and taking local needs and context into consideration when scaling. We also agree that data and infrastructure tools are important to scaling efforts. To capture these important tools and additional proposed data-related factors in one place, we have added a new factor (x), which will consider the extent to which the project will create reusable data and evaluation tools and techniques that facilitate expansion and support continuous improvement. Consolidating the administrative data proposals into one factor maximizes the impact of individual selection criteria, both in terms of how applicants respond and how peer reviewers assess an application. We decline the commenter's request to define “efficiency” for the purposes of paragraph (i) because efficiency may vary within a specific Department grant program or individual grant project, and we want to retain flexibility in the application of that term. For example, efficiency in one grant program and grant project might relate to the cost per participant, while in another it might relate to identifying the project component(s) most necessary to maintain at scale.

We also undertook a review of the factors and selection criteria to ensure consistency, taking into consideration the comments received. As a result of this review, we made minor edits for clarity and consistency. These minor edits include, for example: under “quality of the project design,” using the term “includes” instead of “encourages;” under “quality of project personnel,” adding “the extent to which,” to better allow peer reviewers to assess the quality of an applicant's response to the selection criteria and specific factors; under “adequacy of resources,” connecting the costs more clearly with potential replication; under “quality of the project evaluation or other evidence-building,” aligning analytic strategies with project components; and under “strategy to scale,” aligning the introductory paragraphs with those of the other selection criteria.

Changes: In paragraph (a), we moved “close gaps in the educational opportunity” to the end of factor (iii).

In paragraph (b), we added “educational challenges” to factor (iii), we added “measurable” to factor (v), “entities” to factor (vi), “regional” to factor (viii), “more” to factor (x), “or data infrastructure” to factor (xi), and “development of” to factor (xvii).

In paragraph (c), we ensured consistency in the use of “logic model” and “conceptual framework” in factors (iii) and (iv); added “and uses reliable administrative data to measure progress and inform continuous improvement” to factor (v); added “more” to factor (x), changed “encourages” to “includes” in factors (xviii) and (xix); in factor (xxii), clarified that reviewers can assess the extent to which applicants propose a plan for capacity-building that leverages one or more of the other resources listed in that factor; and included the “extent to which” language in factor (xxiii).

In paragraph (c), we added “meaningful” to factor (ii).

In paragraph (d), we added “responsive” to factor (i), modified factor (ii) for clarity by substituting “target population” for “entities,” and added “or other conceptual framework” after “logic model” in factor (iv).

In paragraph (e), we added the “extent to which” language in factors (i) and (ii), and we revised factors (ii) and (iv) to focus on lived and relevant experiences.

In paragraph (f), we removed the first mention of “organization” from factor (i), revised factor (v) to clarify how the costs would “permit other entities to replicate the project,” and in factor (vii), we changed “institution” to “applicant” and the “end date of Federal funding” to “Federal funding ends.”

In paragraph (g), we added “meaningful” to factor (ii).

In paragraph (h), we changed “provided for describing” to “are designed to measure” in factor (iii), added “diagnostic” to factor (vi), revised the second half of factor (xi) to focus on informing decisions about specific project components, added “the extent to which” in factor (xiv) along with “required to conduct an evaluation of the proposed project,” and added a new factor (xvi) on administrative data.

In paragraph (i), we revised paragraph (1) to include “the proposed project for recipients, community members, and partners” and then removed this language from paragraph (2); added consistent language in factors (ii) and (iii) on “together with any project partners;” revised factor (iii) to focus on scaling at the national level, to distinguish it from factor (ii), as was the intent; added the “quality of the” before “mechanisms” in factor (iv) for consistency, changing “being able to expand the proposed project” to “expansion” in factor (vii); added “and are responsive to” in factor (vii), and added a new factor (x) on data tools and techniques.

Section 75.225 What procedures does the secretary use when deciding to give special consideration to new potential grantees?

Comments: Multiple commenters supported the proposed changes to § 75.225 and the ability to prioritize new potential grantees, recognizing that the current “novice applicant” language limited the Department to prioritizing only applicants that have not received Federal funding in the past five years. Two commenters recommended that the Department retain current § 75.225(d), allowing for the imposition of special grant conditions for novice applicants.

In addition to prioritizing new potential grantees, multiple commenters encouraged prioritizing grantees “with a history of success,” citing, as an example, rural grantees that have benefited from the experience.

One commenter, while agreeing with the use of the term “new potential grantee” instead of “novice applicant,” questioned the likelihood that this modified priority would diversify the applicant and grantee pools, particularly in competitions with limited numbers of applications and competitions where there are often repeat grantees.

One commenter urged the Department not to prioritize new potential grantees in the TRIO programs, citing the program's statutory requirement to consider prior experience.

Discussion: We appreciate the support for the proposed changes to § 75.225 and agree that the proposed revisions will allow use of this priority in more discretionary grant programs and that it will more effectively promote the Department's interest in awarding grants to a diverse and inclusive group of applicants, including those who have served students with positive results but may have less experience with Federal grants. The Department declines the commenter's suggestion to retain the language regarding special conditions for new applicants in current § 75.225(d), because the Department already is required to conduct a risk assessment of applicants prior to making an award under 2 CFR 200.206 of the Uniform Guidance, and, under 34 CFR 200.208, to impose appropriate specific conditions, and the revisions to § 75.225 eliminate this redundancy.

The Department declines to adopt a specific priority for experienced grantees, because other factors, such as the selection criteria in § 75.210, already take into account organizational and personnel experience. We are clarifying, in paragraph (a), that in instances where we prioritize new potential grantees by establishing an absolute priority for those applicants, we also have a separate absolute priority for applicants that are not new potential grantees, to align with the current practices of the Department. For example, a competition including § 75.225(b)(3)(i) as an absolute priority would include § 75.225(c)(3)(i) as a separate absolute priority. We are also clarifying how paragraph (a) works when used as a competitive preference priority.

As to the concern about whether prioritizing new potential grantees will successfully diversify the applicant and grantee pools, the Department is actively engaged in outreach efforts for each of its grant competitions, as discussed above in the response to the comment on §§ 75.100-75.102 and regards this new language as one tool in the broader strategy to reach more potential applicants for its grant programs.

Lastly, regarding the concern about prioritizing new potential grantees in the TRIO programs, the Department considers a program's statute and purpose, as well as the number and types of applicants in recent competitions, when determining whether and how to use § 75.225 for a particular grant competition.

Changes: We have revised paragraph (a) to clarify how new potential grantees are prioritized through a competitive preference priority or through an absolute priority by establishing one competition for those applicants that meet one or more of the conditions in paragraph (b) of this section and a separate competition for applicants that meet the corresponding condition(s) in paragraph (c), deleted proposed paragraph (c), and redesignated proposed paragraph (d) as paragraph (c).

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

Comments: Several commenters supported the prioritization of evidence in grant competitions, recognizing the need to prioritize rigorous evidence, including at the “demonstrates a rationale” level to support innovation. One commenter proposed to give the greatest consideration to strong, moderate, or promising evidence. Multiple commenters raised concerns about § 75.226 and the prioritization of evidence, asserting that the evidence level definitions are not clear and that applicants may select evidence that meets the applicable program requirement but does not align with the proposed project or with local needs. These commenters suggested that if the Department intends to replicate particular models supported by evidence, the Department should provide a list of those models. One commenter was concerned about how the Department intends to apply § 75.226 to specific Department grant programs, indicating that in some instances project staff may lack the experience and expertise to conduct research and, more generally, that a focus on research pulls resources from direct services.

Discussion: We appreciate the thoughtful comments about § 75.226. The Department has had the discretion to prioritize evidence at the promising, moderate, and strong levels since 2013, and the proposed update to § 75.226 simply aligns this provision with the current evidentiary definitions in the ESEA, including the fourth tier of evidence: “demonstrates a rationale.” These four tiers of evidence can be considered for use in any of the Department's programs. Applicants should assess the evidence base in relation to their particular local needs, the evidence base may include utilizing the resources provided by the What Works Clearinghouse (WWC). The Department also considers the evidence base when determining whether and how to prioritize evidence in a grant competition and determines the highest level of available evidence when making these decisions.

Regarding the priority of evidence in specific Department grant programs, along with taking into consideration the current body of evidence relating to a program, the Department also considers a program's statute and purpose. Section 75.226 does not involve research or specify a particular use of funds regarding research, or whether funds are used for research or for direct services; instead, it addresses an applicant's submission of evidence during the grant application process to support a component of the proposed project. As noted above, the Department has the discretion to choose whether and how to use § 75.226 in a particular grant competition. For these reasons, it is not necessary or appropriate to add language giving particular priority to the strong, moderate, or promising evidence levels.

Changes: None.

Section 75.227 What procedures does the secretary use if the secretary decides to give special consideration to rural applicants?

Comments: Multiple commenters supported the prioritization of rural applicants, including entities that serve rural areas, stating that § 75.227 recognizes the unique needs of rural applicants and the challenges in accessing resources for rural areas.

Two commenters expressed concerns with giving priority to an applicant based on its locale, stating that some entities located outside rural areas may have experience serving rural locations and should not be excluded if they propose to serve more than solely rural areas. They also expressed concern about prioritizing rural applicants when many services are now provided virtually.

One commenter did not feel rural applicants in the TRIO programs should receive priority because rural areas are already served by the program.

Discussion: We appreciate the comments in support of § 75.227. We clarify that § 75.227 does not require that an applicant be rural; rather, the applicant must propose to serve a rural locale. With respect to the comment regarding priority in the TRIO program, we note that we consider a program's statute and purpose, including whether the program serves rural areas, when determining whether and how to use § 75.227 for a particular grant competition. We are clarifying, in paragraph (a), that in instances where we prioritize rural applicants by establishing an absolute priority for those applicants, we also have a separate absolute priority for applicants that are not rural applicants, to align with the current practices of the Department. For example, a competition including § 75.227(b)(2)(i) as an absolute priority would include § 75.227(c)(2)(i) as a separate absolute priority.

Changes: We have revised paragraph (a) to clarify how rural applicants are prioritized through a competitive preference priority or through an absolute priority by establishing one competition for those applicants that meet one or more of the conditions in paragraph (b) of this section and a separate competition for applicants that meet the corresponding condition(s) in paragraph (c), deleted proposed paragraph (c), and redesignated proposed paragraph (d) as paragraph (c).

Section 75.253 Continuation of a Multiyear Project After The First Budget Period

Comments: We received two comments with recommended revisions to § 75.253 that focused on continuous improvement in making continuation award decision for current grantees, stating that a focus on continuous improvement and an examination of the goals and objectives of the project can improve outcomes for the grant's target population. Commenters specifically proposed a new paragraph that would allow a grantee to achieve or exceed its goals, which could result in revisions to targets.

Discussion: We appreciate the focus on continuous improvement and the opportunity for grantees to revise targets as goals are met. Grantees work with the Department on any proposed changes to the approved grant application, which may include changes to targets based on how grantees are performing relative to the goals outlined in the approved grant application. We decline to adopt the commenters' proposed revisions to proposed paragraphs (ii)(A) and (ii)(B) to address changes when goals are exceeded, because paragraph (ii) applies to a different group of grantees, specifically those who have encountered challenges meeting their goals and are seeking approval for changes to help them make substantial progress. We thus do not think the proposed revisions align with the intent of paragraphs (ii)(A) and (ii)(B).

Changes: None.

Section 75.254 Data Collection Period

Comments: We received three comments in support of the data collection period in proposed § 75.254. One commenter appreciated the ability to use Federal funds for salaries and costs associated with data collection requirements after the initial grant project period. Another commenter appreciated the ability to provide the necessary description and budget for a data collection period in the initial grant application.

Discussion: We agree with the commenters on the value of a data collection period and agree that it could be helpful for an applicant to provide details about such a period in their initial grant application.

Changes: None.

Section 75.261 Extension of a Project Period

Comments: None.

Discussion: After undertaking our own internal review, we have revised the cross-reference in proposed § 75.261(c) to read “(b)(4)(ii)” to align with current Department practices. This makes clear that the waiver request in § 75.261(c) is applicable to paragraphs (b)(4)(ii)(A), (b)(4)(ii)(B), and (b)(4)(ii)(C).

Changes: We have revised the cross-reference in § 75.261(c) to read “paragraph (b)(4)(ii).”

Section 75.590 Grantee Evaluations and Reports

Comments: We received multiple comments in support of the proposed addition of paragraph (c) in § 75.590, which allows the Secretary to require an independent evaluation and make reports and data publicly available. The commenters appreciated the effort to advance evidence by sharing data and evaluations, and one commenter especially appreciated the use of ERIC to reduce the public's burden finding published evaluation results.

One commenter, in response to proposed § 75.590(c) requested clarity on the meaning of “independent evaluation” and requested that the Department require rigorous evaluations proposed under paragraph (h) of § 75.210 (“quality of the project evaluation or other evidence-building”) be posted to ERIC.

Two commenters had privacy concerns about making data available to third-party researchers under proposed § 75.590(c)(3). One commenter felt LEAs might limit their participation in studies if they required sharing data about students. The second commenter felt the phrase “consistent with applicable privacy requirements” was not specific enough and should take into consideration other legal and privacy concerns, such as the Federal Policy for the Protection of Human Subjects and institutional review board policies, as well as terms established by the provider of the data.

Lastly, two commenters recommended that the Department set up a system, perhaps through the WWC, to manage these data sets, similar to how the IES makes data available from the National Center for Education Evaluation and Technical Assistance evaluations.

Discussion: We appreciate the support for proposed § 75.590(c) and agree that it is valuable to share project evaluations and data, including through ERIC as a central resource.

As for the meaning of “independent evaluation” under § 75.590(c), these final regulations add a definition in § 77.1(c). The definition allows different types of entities or units of an organization to conduct the evaluation, provided they are not directly involved with the project implementation. We appreciate the commenter's recommendation that rigorous evaluations proposed under paragraph (h) (“quality of the project evaluation and evidence-building”) in § 75.210 be posted to ERIC and will consider how to use the options available under § 75.590 when developing an NIA for a grant competition.

With respect to commenters' privacy concerns about § 75.590(c)(3), the Department's Public Access Plan takes data privacy into account. https://ies.ed.gov/funding/pdf/EDPlanPolicyDevelopmentGuidanceforPublicAccess2024.pdf. Specifically,

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

We agree that § 75.590(c)(3) could further specify privacy requirements and have added confidentiality language that is conceptually similar to the commenter's proposal and mirrors language in the Public Access Plan.

We decline commenters' request to establish a Department repository for data, because, as set forth in the Public Access Plan, other entities are developing plans to share data in public repositories that align with the characteristics described in the National Science and Technology Council document entitled “Desirable Characteristics of Data Repositories for Federally Funded Research” whenever feasible. https://www.whitehouse.gov/wp-content/uploads/2022/05/05-2022-Desirable-Characteristics-ofData-Repositories.pdf.

Changes: We have revised § 75.590(c)(3) to ensure that the data from the independent evaluation are made available to third-party researchers consistent with the requirements in 34 CFR part 97, Protection of Human Subjects, and other applicable laws.

Section 75.591 Federal Evaluation; Cooperation by a Grantee

Comments: Three commenters had concerns about the proposed revisions to § 75.591. One commenter recommended clarifying that the examples provided in the proposed revisions are illustrative and proposed adding language to clarify that there may be other activities a grantee would be expected to undertake as part of a Federal evaluation. Another commenter was concerned about increased burden on grantees to participate in a Federal evaluation and about the ability to recruit LEAs and other entities to participate in grants where there is such a requirement. The commenter also was concerned that “pilot” studies would have limited ability to meet WWC standards, and found the use of “if required” and “must” in paragraph (b) to be contradictory. The third commenter stated that the TRIO programs are expressly prohibited from recruiting “additional students beyond those the program or project would normally serve,” which the commenter interpreted to prohibit the random selection of a subset of subgrantees for pilot projects contemplated in paragraph (b) with respect to the TRIO programs.

Discussion: We appreciate the concerns raised about the revisions to proposed § 75.591.

We agree with the commenter's suggestion that paragraphs (a) and (b) should be presented as a non-exhaustive list of required evaluation activities and accept the commenter's proposed revision.

Not all programs or grantees will involve a Federal evaluation. We consider program statutes and purposes, including statutory requirements to conduct a program-level evaluation, when determining which programs and grantees should participate in a Federal evaluation. We also consider the Department's Learning Agenda, which sets forth six focus areas for evidence building over four years to strengthen the Nation's education system. https://ies.ed.gov/ncee/pdf/ED_FY22-26_Learning_Agenda_v2.pdf. Because not all programs and grantees will participate in a Federal evaluation, proposed § 75.591(b) included both “if required” and “must.” However, for streamlining with the introductory paragraph, which already includes the phrase “if requested by the Secretary,” we are removing the phrase “if required by the Secretary” at the beginning of paragraph (b).

We also recognize that there are many types of evaluations and that the randomized controlled trial referenced in paragraph (b) may not be the appropriate type of evaluation for all programs. We take this point into consideration, among other factors, when determining when and how to evaluate a Federal program. Where a randomized controlled trial might be appropriate, however, it is important that an applicant be aware in advance and can recruit enough sites to allow the Department to randomly select a subset for the purposes specified in paragraph (b).

Additionally, we recognize that not all programs that will participate in a Federal evaluation will have a program statute that requires such participation, and we are removing this language to align with current Department practices.

Changes: We added “among other types of activities” to the introductory language of § 75.591 and removed the “in accordance with program statute” language. We also removed the phrase “if requested by the Secretary” from the beginning of proposed § 75.591(b).

Section 75.600-75.618 Construction

Comments: We received multiple comments related to the proposed revisions to the construction regulations in §§ 75.600-75.618. One commenter urged the Department to consult with State educational agencies (SEAs) and LEAs before finalizing these sections of EDGAR, asserting that proposed §§ 75.611 and 76.600 do not recognize the distinction between direct grant programs and state-administered programs. Regarding the application of §§ 75.600-75.618, the commenter requested that the Department consider existing paperwork related to construction before requiring any new reporting, citing 2 CFR 200.329(d) of the Uniform Guidance.

One commenter had concerns that proposed § 75.602(a)(1) could inhibit innovative building practices by just focusing on meeting building codes and not considering other concepts such as net zero energy buildings. The commenter proposed revisions to focus on green building practices.

Two commenters expressed concerns about the proposed changes to § 75.606(b)(3) and (b)(5) regarding the recording of a Federal interest on real property and annual reporting on the status of real property. The commenters raised concern about the administrative burden of this recording and reporting when there are improvement and minor updates to real property. One commenter cited a lack of consistency in how “real property acquisition” is defined, including between the Department and OMB (as shown on OMB Standard Form 424D, for example). The commenter noted that the recording requirements of other agencies are not as extensive as the Department's and they allow recording to be forgone on a case-by-case basis where the Federal investment is minor. The commenter also requested less frequent reporting in § 75.606(b)(5), which the commenter asserted would be more consistent with OMB and other agencies. The commenter proposed these revisions to support a focus on green building efforts, encouraging the modernization of school buildings, and consideration of life-cycle costs in addition to upfront costs.

One commenter proposed specific edits to § 75.612 regarding mitigating flood hazards and flooding risks, noting that schools often serve as community shelters during severe weather.

One commenter recommended that § 75.616 include additional language to cover subsequent updates to the ASHRAE standards; the commenter also proposed language in paragraph (a) on life-cycle costs that take into consideration costs associated with building beyond initial construction and the costs associated with educating the community about the building efforts, which the commenter suggested be capped at 0.5%.

One commenter recommended revisions to § 75.618 to allow a grantee to “use additional standards and best practices to support health and wellbeing of students and staff.” The commenter indicated that, because standards are often updated more frequently than regulations, it would be beneficial to allow grantees, and LEAs in particular, to utilize standards when making health and safety determinations for their population.

Discussion: We recognize the importance of working with entities impacted by these regulations, including States and LEAs, and the public comment period provided a valuable opportunity for these entities to provide their perspectives. We also appreciate the concerns about the potential burden of any additional reporting for grantees. With respect to commenters' concerns about the scope of proposed § 75.606(b), we note that § 75.606(b) is specifically about the acquisition of real property and construction, and we included a definition for “construction” in § 77.1(c). With respect to potential administrative burden, we note that the Federal interest recording and real property reporting requirements are not new, and they are driven by the Uniform Guidance. When funds are used for construction, many different existing requirements are triggered, including the recording and reporting on real property improvements or acquisition.

The definition of “Federal interest” and the annual reporting requirement that is currently in 2 CFR 200.330 was originally in 2 CFR 200.329 when the Uniform Guidance was first adopted by many agencies, including the Department. The Uniform Guidance provisions apply to all new Department grant awards and non-competing continuations made on or after December 26, 2014, and include requirements around reporting on real property.

The Department's requirements are consistent with the Uniform Guidance, and the Department cannot speak to the practices of other agencies. We are adding introductory language to § 75.606(b)(3) to make clear that any recording of Federal interest must be in accordance with agency directives, to account for any program-specific directives that may impact the recording of Federal interest.

Regarding the comments and proposed edits to §§ 75.602, 75.612, 75.616, and 75.618 related to green building practices and flood hazards, and energy conservation, we recognize the importance of considering flood hazards, green building practices, life-cycle costs in building, and educating the community around construction efforts. We include the proposed changes to § 75.612 regarding flood hazards and are including additional, relevant Executive orders. Additionally, related to flood hazards, the Federal Emergency Management Agency's “Guidelines for Implementing Executive Order 11988, Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input” includes information related to flood risk guidance that we note here for consideration. While we decline to require such measures due to potential costs to grantees, we agree that many of the commenters' suggestions would add value in the construction process and have added many of them as options in the provisions to which they apply, as set forth in the “Changes” section below. Given that community education is optional, it is not necessary to include the commenter's suggested percentage limit on such costs.

We appreciate the interest in avoiding the need to update EDGAR when the ASHRAE standards are updated, but because ASHRAE is incorporated by reference in EDGAR, the specific version must be cited, which the Department will update if the ASHRAE standards are revised.

Lastly, we reviewed the construction sections for clarity and are making revisions to streamline the language, such as changing “made a determination on the specifications” to “approved”.

Changes: We are changing “made a determination on the specifications” in § 75.601(b) to “approved” and “providing approval of the final working specifications of” in § 75.602(c) to “approving”. We are adding three new paragraphs to § 75.602(b) that allow grantees developing a construction budget to include funds for energy, HVAC, and water systems and training on their use; life-cycle cost analysis; and school and community education about the project. We are revising § 75.606(b)(3) to make clear that the real property recording requirement accounts for this agency's directives. We are revising § 75.612 to include new paragraphs that require grantees to consider flood hazards and risks in planning a construction or real property project and reference two additional Executive orders. We are changing “applicant” in § 75.614(b)(1) to “grantee.” We are adding a new sentence to § 75.616(a) that allows grantees to consider life-cycle costs and benefits of certain energy projects. We are adding a new § 75.618(b) that allows a grantee to consider additional standards to support health and wellbeing.

Section 75.623 Public Availability of Grant-Supported Research Articles

Comments: Three commenters expressed support for the proposed addition of § 75.623, with one commenter appreciating the easier access to federally funded research and another commenter highlighting paragraphs (a) and (c) and supporting alignment with IES practices and making grant-supported research publications accessible. One commenter recommended aligning the timeline in § 75.623(c) with the Public Access Plan with respect to when IES will make peer-reviewed scholarly articles available in ERIC. The commenter also recommended a new paragraph (e) requiring grantees to make “scientific data” available.

Discussion: We appreciate the support for proposed § 75.623 and agree that it is valuable to make grant-supported research publications accessible. We also agree that the timing in § 75.623 should align with the Public Access Plan and have revised § 75.623(c) accordingly. Likewise, we agree with the commenter's suggestion to make “scientific data” from Department grants publicly available, and added a new paragraph (e) to this effect as well as a definition of “scientific data” in § 77.1(c) that aligns with language in the Public Access Plan.

Changes: We aligned the timing in § 75.623(c) to the language in the Public Access Plan, added a paragraph (e) that requires scientific data to be made available “consistent with the requirements in 34 CFR part 97, Protection of Human Subjects, and other applicable laws,” and added a definition of scientific data to § 77.1(c).

Section 75.708 Subgrants

Comments: We received one comment on § 75.708, seeking confirmation that a contract entered into by a grantee is different than a subgrant awarded by the grantee and seeking clarification about the contract competition process.

Discussion: Final § 75.708 clarifies how the Secretary authorizes subgrants and that contracts are an option when subgranting is not allowed. We confirm that a contract and a subgrant (subaward) are distinct, and the differences between the terms are reflected in their respective definitions in § 77.1(b). A contract is “a legal instrument by which a recipient or subrecipient purchases property or services needed to carry out the project or program under a Federal award.” 34 CFR 77.1(b) and 2 CFR 200.1. A subgrant is an award by a grantee to a subgrantee to “to carry out part of a Federal award received by the [grantee].” 34 CFR 77.1(b) and 2 CFR 200.1. The procurement requirements a grantee must follow to enter into a contract are set out in 2 CFR 200.317 through 200.327.

Changes: None.

Section 75.720 Financial and Performance Reports

Comments: Multiple commenters opposed the proposed revisions to § 75.720. The commenters also shared the concern that reports, especially financial reports, contain proprietary information. One commenter expressed concern about the administrative costs of preparing reports for public posting and the potential insufficiency of funds to cover such costs. Another commenter was concerned that making the reports publicly available could negatively influence peer reviewers who could access the reports when reviewing applications for a new award.

One commenter proposed revising paragraph (a) to incorporate the theme of continuous improvement.

Discussion: We appreciate the concerns raised by the commenters about proprietary information in financial and performance reports and have included language to address these concerns that mirror language included in NIAs regarding proprietary “business information.” We note that the Department will decide which programs are subject to this additional posting requirement in paragraph (d), taking into account the costs and benefits of posting within a particular program and will clarify the allowability of funds to pay for any additional posting.

With respect to the concern that peer reviewers might be influenced by publicly available performance reports, peer reviewers receive training to only review materials in the submitted grant application, and we will continue to emphasize this point. We thus decline to explicitly address this concern in § 75.720.

Given that § 75.720 cross-references defined types of reports in the Uniform Guidance, we do not think it is necessary to include suggested edits related to continuous improvement beyond the approved types of reporting from the Uniform Guidance.

Changes: We have added language to § 75.720(d) about requesting confidentiality of “business information” to allow for its protection.

Section 75.732 Records Related to Performance

Comments: We received two comments regarding § 75.732 with proposed revisions to this section as well as a recommendation to create a new parallel § 76.732 in part 76 so that this provision also applies to State-administered grant programs. The commenters requested that we amend § 75.732(b) to use performance records to inform continuous improvement.

Discussion: We appreciate and agree with the focus on continuous improvement, as informed by performance records, and agree that it is appropriate to adopt a similar provision for State-administered grant programs in part 76.

Changes: We have added a new paragraph (b)(2) to § 75.732 that requires grantees to use performance reports to inform continuous improvement, and added a new § 76.732 that mirrors § 75.732.

Part 76—State-Administered Formula Grant Programs

Section 76.50 Basic Requirements for Subgrants

Comments: One commenter was generally supportive of the proposed changes to § 76.50 but requested additional clarification on: (1) whether States may determine which entities are eligible for subgrants when the program statute is silent; (2) how, if at all, subgrants the State chooses to make interact with grant formulas that determine the amount of Federal funds that the State must subgrant; and (3) whether the proposed regulations allow subgrantees to make their own subgrants. Another commenter strongly opposed the proposed changes to § 76.50 that would clarify States' ability to make subgrants, and allow States to authorize a subgrantee to make subgrants, using funds from State-administered formula grant programs, unless prohibited by their authorizing statutes, implementing regulations, or the terms and conditions of their awards. The commenter asserted that this proposed revision would create additional complications for States, requiring them to train and oversee subgrantees on how to make and monitor subgrants.

Discussion: We appreciate the commenter's suggestions and agree that additional clarity would be useful. We clarify that a State may, but is not required to, determine eligible subgrantees if the applicable statutes and regulations do not specify them, so long as the applicable statute, regulations, or terms and conditions of the grant award do not prohibit subgranting. We also clarify that no subgrant a State chooses to make may change the amount of Federal funds for which an entity is eligible through a formula in the applicable statute or regulation. That is, any subgrant a State chooses to make would be in addition to the funds a subgrantee already receives by formula. Finally, we note in response to the commenter's question, that under § 76.50(b)(3), a State may authorize a subgrantee to make subgrants, unless prohibited by their authorizing statutes, implementing regulations, or the terms and conditions of their awards.

We appreciate the concerns raised about how the potential for additional subgrants could require additional State oversight and training. This provision provides States with appropriate flexibility to implement grants in a manner most suitable to their circumstances, by permitting, but not requiring, the State to make subgrants. Accordingly, a State could avoid any additional training and oversight if the State agency elects not to award subgrants, except in those programs where subgranting is required by statute or regulations. However, when a State elects to engage in subgranting, or is required to do so, it is the State's responsibility as a Federal grantee pursuant to 2 CFR 200.332 to conduct oversight of the subgrantee to ensure Federal requirements are satisfied. Section 76.50(c) simply reminds grantees of those Federal requirements at 2 CFR 200.332 and does not impose additional oversight requirements on the State. These changes will ensure common standards across programs when applicable statutes, regulations, or the terms and conditions of a grant award are silent regarding subgrants. Even if the statute or regulations are silent, the Department may prohibit subgranting through the terms and conditions of a grant award, as appropriate given the nature of the program and its requirements. These provisions give both the Department and the State sufficient authority to ensure subgranting occurs only when appropriate.

Changes: We have amended § 76.50(b)(2) to specify that applicable statutes or regulations determine eligible subgrantees and that States make such determination if not addressed in applicable statutes or regulations. In addition, we made a technical edit to § 76.50(d) to add the words “terms and” to make clear that the Department may prohibit subgranting through the terms and conditions of a grant award. This phrase is consistent as that used in § 76.50(b) and is needed to ensure clarity and consistency. Last, we have added a new paragraph § 76.50(e) to clarify that receipt of a subgrant a State chooses to make does not change the amount of Federal funds for which an entity is eligible through a formula in applicable statute or regulation.

Section 76.101 State Plans in General

Comments: Two commenters recommended adding an additional paragraph to § 76.101 to require LEA subgrant applicants to focus on the use of research, data, information learned from engagement, and continuous improvement efforts to inform program implementation. The comments aligned with the commenters' broader focus on continuous improvement throughout EDGAR.

Discussion: We appreciate the effort to infuse continuous improvement throughout EDGAR. We are adding language to § 76.101 to note ways States may consider continuous improvement in their plans. The Department can work with States to understand this new language; however, we are not adding language to § 76.301 regarding LEA subgrant applications since those plans go directly to States, rather than the Department, though nothing in our regulations limits a State's ability to work with subgrantees on continuous improvement.

Changes: We are adding language to 76.101(a) to acknowledge that continuous improvement may help States use their State plans to meet program objectives.

Section 76.140 Amendments to a State Plan

Comments: One commenter raised the concern that while the proposed revisions to § 76.140 address how the Secretary can streamline the process for amendments to State plans, it does not discuss any streamlining of the approval process. Specifically, the commenter proposed revisions to paragraph (c) to incorporate the submitting and approving of amendments, and the addition of a new paragraph (d) around exceptions to the approval process, including expedited approval.

Discussion: The Department appreciates the commenter's recognition for why amendments to State plans might follow different procedures from the original State application. As such, we accept the proposed edits to paragraph (c) around the submission of amendments and the requirements associated with a State-administered formula program. States, when submitting an amendment, may request expedited approval; however, when and how the Department is able to expedite approval is case-specific and, as such, we do not think it necessary to expand beyond what the normal procedural rules would be and decline to add a new paragraph (d).

Changes: We have revised paragraph (c) in § 76.140 to clarify that the Secretary may prescribe different procedures for submitting amendments and to refer to the requirements as well as the characteristics of a particular State-administered formula program.

Section 76.301 Local Educational Agency Application in General

Comments: Two commenters recommended adding an additional paragraph to § 76.301 to focus on the use of research, data, information learned from engagement, and continuous improvement efforts to inform program implementation. The comments aligned with the commenters' broader focus on continuous improvement throughout EDGAR.

Discussion: We appreciate the effort to infuse continuous improvement throughout EDGAR but decline to adopt the commenter's recommendation because Section 76.301 is about the application of GEPA section 442 to LEAs; it is not about the contents of a subgrant application submitted by an LEA, which is driven by the applicable program statute. However, there is nothing that prohibits a State from requesting that an LEA seeking a subgrant provide information about the research, data, information learned from engagement, and continuous improvement efforts to inform program implementation.

Changes: None.

Section 76.500 Constitutional Rights, Freedom of Inquiry, and Federal Statutes and Regulations on Nondiscrimination

Comments: None.

Discussion: Based upon our own internal review, we have revised § 76.500 to correct the section heading, which was inadvertently changed in the NPRM. The section heading should read the same as the current language in EDGAR: “Constitutional rights, freedom of inquiry, and Federal statutes and regulations on nondiscrimination.” The section heading was inadvertently modified in the NPRM, when the Department's only proposed changes to § 76.500 should have been to paragraph (a).

Changes: We have corrected the heading to section 76.500 in the final regulations.

Section 76.560 Approval of Indirect Cost Rates

Comments: One commenter appreciated the Department's efforts to align the indirect cost sections in EDGAR with the Uniform Guidance. One commenter requested that the Department clarify the role SEAs play in facilitating indirect cost rate determinations for non-LEA subgrantees that do not have established rates. The commenter expressed particular interest in the relationship between proposed § 76.561(a), which clarifies that the Department negotiates indirect cost rates for non-LEA subgrantees when the Department is the cognizant agency, and 2 CFR 200.332(a)(4)(i), which describes the role of passthrough entities in identifying rates for subrecipients without one.

Discussion: OMB has designated the Department as the cognizant agency for indirect costs for SEAs and LEAs (see 2 CFR Appendix-V-to-Part-200 F.1. “Department of Education”). Under § 76.561(b), the Department has delegated to SEAs the responsibility for approving the indirect cost rates for LEAs on the basis of a plan approved by the Department. For non-LEA subgrantees that do not have direct Federal awards, the indirect cost review process is addressed in the Uniform Guidance. Specifically, the Uniform Guidance provides the three-step process for pass-through entities and subrecipients to identify and review indirect cost rates. Under 2 CFR 200.332(a)(4)(i), if the subrecipient has an approved allowable indirect cost rate for the award, then the subrecipient may use the indirect cost rate. Under 2 CFR 200.332(a)(4)(i)(A), if no indirect cost rate is available, the pass-through entity is to collaboratively negotiate an indirect cost rate using the Federal regulations. Finally, under 2 CFR 200.332(a)(4)(i)(B), the entity may elect the de minimis indirect cost rate if the program does not require special indirect cost rates such as restricted indirect cost rates (§ 75.563 and § 76.563) or training indirect cost rates (§ 75.562). Consistent with 2 CFR Appendix-IV-to-Part-200 2.a, if the subrecipient does not receive any funding from any Federal agency, the pass-through entity is responsible for the negotiation of the indirect cost rates in accordance with 2 CFR 200.332(a)(4).

The Department's Indirect Cost Division is available to provide technical assistance and guidance on issues relating to cognizance of direct recipients and pass-through entity responsibilities. Additional information is available at: https://www2.ed.gov/about/offices/list/ofo/indirect-cost/responsibility.html.

Changes: None.

Section 76.650-76.677 Participation of Students Enrolled in Private Schools, Equitable Services Under the Cares Act, and Procedures for a Bypass

Comments: A couple of commenters opposed removing §§ 76.650-76.662 and instead proposed that the Department update these sections to be consistent with current laws. They stated that it is appropriate to have consistent default standards for providing services and assistance to students and educators in private schools if Congress authorizes new grant programs outside of programs such as those under the Individuals with Disabilities Education Act or ESEA, for which program-specific regulations exist.

A few other commenters expressed concern that the existing requirements in § 76.650 are not consistently implemented or monitored. These commenters urged emphasis on grantee and subgrantee consultation with representatives of students enrolled in private schools by having § 76.650 reference proposed § 299.7(a)(1)(i).

Discussion: We agree with the commenters that retaining equitable services requirements in part 76 is useful for potential future programs. Accordingly, we will not remove §§ 76.650-76.662. As a result, we will also not change the cross-references in § 75.119, which will continue to refer to § 76.656, and § 75.650, which will continue to refer to §§ 76.650-76.662. Similarly, we will not delete paragraph (c) of § 299.6, which cross-references §§ 75.650 and 76.650-76.662.

At the same time, we also agree with commenters about the value of additional clarity regarding the consultation requirements outlined in § 299.7. Accordingly, we are including a cross-reference to final § 299.7 in § 76.652.

Changes: 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 in the NPRM. Since we are not changing § 76.656, we will also not change the cross-reference in § 75.119, which will continue to refer to § 76.656. We are revising § 76.652 to refer to the consultation requirements in final § 299.7.

Section 76.707 When Obligations Are Made

Comments: A few commenters proposed that the Department consider changes to § 76.707 to align fund obligation standards for personal services provided by an employee of the State or a subgrantee with those applicable to contractors. Two commenters noted that it is important for State and subgrantee personnel to be allowed to provide oversight beyond the period during which the funds are available for obligation. They also noted that recently proposed updates to the Uniform Guidance (since finalized) would allow payment of closeout costs using the applicable Federal financial assistance, which would apply to employees, contractors of grantees, and subgrantees.

Discussion: We understand the complexities of the issues and appreciate the views expressed by the commenters. However, the changes to the Uniform Guidance do not alter the time period in which obligations are allowable under each appropriation in concert with section 421 of the General Education Provisions Act and as reflected in § 76.709. Because we did not propose substantive changes in §§ 76.707 or 76.709 in the NPRM, we decline to make them at this time. The Department will collaborate with grantees in implementing the Uniform Guidance.

Changes: None.

Section 76.720 State Reporting Requirements

Comments: One commenter proposed including “continuous improvement” as part of State reporting requirements, consistent with the commenter's interested in embedding continuous improvement efforts throughout EDGAR.

Discussion: We recognize the importance of continuous improvement and agree with the connection of continuous improvement in the context of State reporting requirements. Specifically, it is helpful to clarify that State reporting requirements in § 76.720 are inclusive of reporting on monitoring and continuous improvement.

Changes: We have added “continuous improvement” to the State reporting requirements.

Section 76.722 Subgrantee Reporting Requirements

Comments: One commenter proposed requiring subgrantees to submit reports to assist the State and the subgrantee in engaging in “periodic review and continuous improvement” of their respective plans, in keeping with the commenter's focus on continuous improvement efforts.

Discussion: Similar to the discussion above of comments for § 76.720, we recognize the value of continuous improvement efforts for both the State and the subgrantee and have modified § 76.722 accordingly.

Changes: We are revising § 76.722 to require subgrantees to submit reports to assist the State and the subgrantee in engaging in “periodic review and continuous improvement” of their respective plans.

Part 77—Definitions That Apply to Department Regulations

Section 77.1 Definitions That Apply to All Department Programs

Comments: Two commenters expressed general support for the proposed evidence definitions in § 77.1, with one commenter specifically supporting the proposed definitions for the tiers of evidence. The commenter stressed that the Department should require grantees to use the most rigorous evidence available and suggested that evaluations be designed to meet the “moderate evidence” or “strong evidence” standards, while recognizing the importance of “promising evidence” to help build an evidence base.

One commenter recommended the Department consider using the definitions for “evidence-based program” and “evidence-building program” that the nonprofit group Results for America has developed in consultation with its stakeholders, which the commenter asserted would improve upon the ESEA definitions. The same commenter recommended deleting the option under “moderate evidence” to use a study that includes “20 or more students or other individuals,” concerned that a study of this size is unlikely to meet a rigorous evidence standard.

One commenter recommended that the definition of “demonstrates a rationale” require that relevant outcomes relate to policy or practice, to narrow the focus to outcomes of most interest to policymakers. Another commenter recommended expanding the definition of “demonstrates a rationale” to include the second part of the ESEA section 8101 definition of the term, focused on learning from approaches implemented under the project.

One commenter appreciated that the proposed definition of “peer-reviewed scholarly publication” aligns with the Department's Public Access Plan, and that proposed § 75.623 requires peer-reviewed scholarly publications to be made available in ERIC.

Lastly, one commenter proposed a definition of “continuous improvement,” given its frequent use throughout EDGAR.

Discussion: We appreciate the support for the evidence definitions and recognize their importance for articulating evidentiary expectations for both applications and evaluations designed to build evidence, including more rigorous evaluations designed to meet the standard of “moderate evidence” or “strong evidence.” The Department considers the evidence base as well as the purpose of the grant program when determining how to include evidence-building and evaluation in a grant competition, which includes an assessment of the appropriate level of rigor for project evaluations.

We appreciate the commenter's interest in including the definitions of “evidence-based program” and “evidence-building program” and appreciate the efforts of the stakeholders involved in the development of those definitions. While those definitions are in some ways aligned with the Department's approach to evidence-based policymaking, they differ enough from the tiered evidence framework in the ESEA and EDGAR that include four tiers of evidence, that we decline to revisit our approach in this rulemaking.

We decline the commenter's request to strike certain language in paragraph (ii) of the definition of “moderate evidence” related to a sample size of 20 students or individuals, because it is important that EDGAR's evidence definitions align with WWC Standards. The low sample size aspect of the definition ensures that the WWC Standards are appropriately inclusive for studies related to students with disabilities, by allowing for studies involving low-incidence populations in the context of a systematic review of an intervention report.

We decline to adopt the recommended additions to the definition of “demonstrates a rationale,” because the proposed revisions are intended to align EDGAR's definition with the ESEA definition to the extent practicable, and the section 8101 definition does not incorporate a focus on “policy or practice.” We also decline the suggestion to add the second part of the ESEA definition, which requires a showing of “ongoing efforts to examine the effects of [an] activity, strategy, or intervention,” because applicants that are required to demonstrate a rationale in their applications have not yet implemented their projects. We also decline to adopt the second half of the ESEA definition of “demonstrates a rationale” for consistency with the other tiers of evidence, none of which requires ongoing evaluation efforts. We note that other parts of EDGAR, such as the selection criteria in § 75.210, incorporate ongoing efforts to evaluate impact. See, e.g., § 75.210(h)(2)(ix) (the extent to which the evaluation is designed to meet WWC standards with or without reservations); and § 75.210(h)(2)(x) (the extent to which the methods of evaluation include an experimental study, a quasi-experimental design study, or a correlational study with statistical controls for selection bias).

We appreciate the support for the proposed definition of “peer-reviewed scholarly publication” and agree that it's important for EDGAR, and this definition, to align with the Department's Public Access Plan, cited earlier.

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

Changes: We are adding a definition of “continuous improvement” to § 77.1.

Part 299—General Provisions

General Comments

Comments: Several commenters recommended that the regulations emphasize the goal of reaching agreement through consultation regarding equitable services. Commenters emphasized the importance of this being the goal for both (1) an agency, consortium, or entity receiving funds under an applicable program and (2) representatives of private schools. Commenters expressed concern that the consultation requirements may not be fully implemented in some cases or may be misunderstood to require only a single conversation that may not amount to meaningful consultation. Commenters also requested confirmation that failure of both parties to have the goal of reaching agreement could be a basis for a private school official to submit a complaint. One commenter recommended highlighting the goal of reaching agreement in proposed § 299.12 regarding the role of the ombudsman.

Discussion: We appreciate the commenters' concerns and the opportunity to confirm that final § 299.7(b) already requires that both parties have the goal of reaching agreement, and final § 299.7(e) addresses the right of a private school official to file a complaint. See 20 U.S.C. 7881(c)(1) and (6) (requiring timely and meaningful consultation and the goal of reaching agreement and providing the right to file a complaint). The final regulations also already emphasize the ongoing nature of consultation. For example, § 299.7 describes specific points when consultation is required and states that “such consultation must continue throughout the implementation and assessment of equitable services.” § 299.7(a)(2). We also note that the final regulations at § 299.12 require the ombudsman to monitor and enforce all equitable services requirements in final §§ 299.6-299.11, which includes § 299.7(b). We note, however, that while there is an existing requirement that there be a goal of reaching agreement, there is no requirement that agreement is ultimately reached. Accordingly, mere disagreement is not, on its own, the basis of a complaint.

Changes: None.

Comments: Several commenters sought clarity regarding the role of the ombudsman, specifically asking for additional detail about the responsibilities of the ombudsman and any oversight of the person serving in that role, but also acknowledged that such clarity likely requires legislative, rather than regulatory, changes.

Discussion: Since the ombudsman is, by statute, an employee of the SEA, we do not include additional specificity in this regulation.

Changes: None.

Comments: Several commenters underscored the importance of current § 299.7, which would become redesignated § 299.9, and requested additional information about how and when notice would be provided to appropriate private school officials of the amount of funds for educational services and other benefits that are available for eligible private school children and their teachers and other educational services personnel.

Discussion: The Department did not propose any changes to current § 299.7, which has been redesignated as § 299.9 in these final regulations, and it will continue in effect as written. The existing regulations continue to require timely notice.

Changes: None.

Comments: Two commenters expressed general support for § 299.16, stating it would provide clarity regarding the contents of an SEA's written resolution of an equitable services complaint. These two commenters offered three suggestions: (1) they pointed out that proposed § 299.16(c) should reference paragraph (h), rather than paragraph (g) of § 299.16; (2) they requested rephrasing proposed § 299.16(d) to avoid implying that the complaint resolution could only be done by an attorney; and (3) they requested clarification in § 299.16(h) that the documents that must be paginated are only those the SEA deemed relevant to its decision.

Discussion: We appreciate commenters' support for proposed § 299.16 and agree that it will bring clarity with regard to the contents of an SEA's written resolution of an equitable services complaint. We further agree with commenters that § 299.16(c) should reference paragraph (h) of this section. We also agree with commenters that we can rephrase § 299.16(d) to refer to the analysis and conclusion reached regarding requirements. Finally, we agree with commenters that the documents requiring pagination need only be those on which the SEA relied in making its decision, rather than every document received by or reviewed by the SEA.

Changes: We are revising § 299.16(c) to refer to “supporting documents under paragraph (h) of this section.” In addition, we are revising § 299.16(d) to refer to “analysis and conclusions regarding the requirements” instead of “legal analysis and conclusions.” We are revising § 299.16(h) to require the inclusion of “all documents the SEA relied on in reaching its decision, paginated consecutively.”

Comments: Several commenters expressed concern that § 299.27 related to judicial review of a bypass hearing decision does not include a specific timeline for resolution.

Discussion: While we appreciate commenters' concerns about the importance of timely decisions, we do not have the authority to set timeframes for judicial processes.

Changes: None.

Other Comments

Comments: We received multiple comments with recommendations to add new sections in part 75 and 76 that would allow for the use of grant funds for costs associated with data and evaluation. Specifically, two commenters recommended the creation of new § 75.535 and a new § 76.535 to support costs related to data and evaluation. The comments cite OMB's proposed updates to the Uniform Guidance (since finalized), and specifically alignment with the proposed updates to Cost Principles in 2 CFR 200.455(c), that would allow for costs associated with data and evaluation. Another commenter proposed a new § 76.762 to allow States or subgrantees to use funds for an evaluation, with exceptions.

Discussion: We appreciate these comments, which recognize the importance of data and evaluation. The Department adopts the Uniform Guidance and uses the Cost Principles in the administration of its programs. As such, it is not necessary to include approval for use of funds for particular activities that already are covered by the Cost Principles in the Uniform Guidance, including the allowance of funds for related evaluation costs. We discuss the allowable costs under specific grant programs and the Cost Principles in pre-application technical assistance and in post-award conversations with grantees, including the update to OMB's Uniform Guidance and Cost Principles.

Changes: None.

Comments: Two commenters recommended the creation of new §§ 75.536 and 76.536 that would allow the use of grant funds for costs associated with community engagement, given the focus on community engagement in the proposed revisions to EDGAR, including the selection criteria in § 75.210.

Discussion: We agree that community engagement is important to the success of many of the Department's grant programs. To the extent that a program's statute and purpose already allow for funds related to community engagement, adding new language is not necessary. The Department will continue to review whether further expansion of allowable costs for community engagement would be appropriate.

Changes: None.

Comments: Three commenters requested specific information related to the Individuals with Disabilities Education Act regulations in 34 CFR part 300, specifically about State and LEA responsibilities related to private school children, including “child find” requirements.

Discussion: We appreciate the concerns raised by the commenters but note that 34 CFR part 300 is not part of the proposed updates included in the EDGAR NPRM.

Changes: None.

Executive Orders 12866, 13563, and 14094

Regulatory Impact Analysis

Under Executive Order 12866, OIRA must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $200 million or more (as of 2023 but adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) of OMB for changes in gross domestic product), or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles stated in the Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

This regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. We have assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action and have determined that the benefits would justify the costs.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” OIRA has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on an analysis of anticipated costs and benefits, we believe that these regulations are consistent with the principles in Executive Order 13563.

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

Costs and Benefits

We have reviewed the changes in these final regulations in accordance with Executive Order 12866, as amended by Executive Order 14094, and do not believe that these changes would generate a considerable increase in burden. In total, we estimate that the changes in these final regulations would result in a net increase in burden of approximately $100 annually with transfers of $109.8 million per year at a 7% discount rate or $113.9 million per year at 3% discount rate. Most of the changes in these final regulations are technical in nature and are unlikely to affect the administration of programs or allocation of benefits in any substantial way. However, given the large number of edits herein, we discuss each provision, other than those for which we are updating citations or cross-references and making other technical edits, and its likely costs and benefits below.

Unless otherwise specified, the Department's model uses mean hourly wages for personnel employed in the education sector as reported by the Bureau of Labor Statistics (BLS) and a loading factor of 2.0 to account for the employer cost of employee compensation and indirect costs ( e.g., physical space, equipment, technology costs). When appropriate, the Department identifies the specific occupation used by the BLS in its tables to support the reader's analysis. The Department assumes that wage rates remain consistent for the duration of the time horizon.

Changes to §§ 75.1 and 75.200 simply combine currently existing text into a single section and clarify terms used. We do not expect that these changes will have any quantifiable cost, and the changes may benefit the Department and general public by improving the clarity of the regulations.

The deletion of § 75.4 as unnecessary and redundant is unlikely to generate any quantifiable cost and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.60, which delete an outdated table and clarify a definition, are unlikely to generate any quantifiable cost and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.101, which clarify what is in a notice and an application package, are unlikely to generate any meaningful cost and may benefit the Department and general public by improving the clarity of the regulations.

Changes to §§ 75.102 and 75.104, which move paragraph (b) of § 75.102 to § 75.104, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.105, which add reference to an already existing exemption to the public comment period to the regulations, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.109, which eliminate the requirement that an applicant submit two copies of any paper applications in addition to the original, may reduce costs for applicants that submit paper applications. However, those savings are likely to be minimal, given the small incremental cost of photocopies and the low number of paper applications the Department receives in any year. At most, we estimate that it would save applicants $7.50 per application, assuming a 75-page application photocopied at a rate of $0.05 per page. Assuming an average of 50 paper applications submitted per year, this change would result in an annual savings of approximately $375.

Changes to § 75.110, which more clearly specify how applicants must report against program measures and project-specific performance measures, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.112, which allow the Secretary to require applicants to submit a logic model or other conceptual framework, are unlikely to generate any quantifiable costs or benefits. Many grant competitions already include this requirement and, to the extent that it is included in additional competitions in the future, we do not believe that it would create a substantial burden for applicants, because we assume that applicants in those programs would likely already have conceptualized an implicit logic model or conceptual framework for their applications and, therefore, would experience only minimal paperwork burden associated with memorializing it in their applications.

Changes to § 75.127, which add the term “partnership” and clarify that all members of a group application must be eligible entities, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

The deletion of §§ 75.190-75.192 as duplicative is unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.201, which refer to selection “factors” as well as “criteria” are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.210, which would clarify word choice, update language based on past experience in using the current selection criteria and factors, and add additional factors such as those that include a focus on the use of data, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.216, which remove paragraphs (a) and (d) and revise the section heading, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations and providing the Department additional flexibility in considering applications.

Changes to § 75.217, which remove the word “solely” and add “and any competitive preference points,” are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.219, which reorganize the section to improve clarity, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.221, which revise the section to improve clarity and remove unnecessary language, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.222, which update the mailing address for unsolicited applications, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

The changes to § 75.225 change the current term “novice applicant” to “new potential grantee” and revise the definition to provide greater flexibility to the Department in classifying applicants as “new potential grantees.” We believe that this change may result in a number of changes in the behavior of both Department staff and applicants. First, we believe that the additional flexibility in the revised section will increase the number of competitions in which § 75.225 is used. Second, we believe that it may result in additional applicants submitting applications for competitions in which § 75.225 is used, increasing access to Federal resources and which may serve to strengthen the quality of the applicant pool. Finally, we believe that the additional applicants, in conjunction with any absolute or competitive preference associated with the revised section, may shift at least some of the Department's grants among eligible entities. However, because this revised standard will neither expand nor restrict the universe of eligible entities for any Department grant program, and since application submission and participation in our discretionary grant programs is completely voluntary, we do not think that it would be appropriate to characterize any increased participation in our grant competitions as costs associated with this regulation.

Changes to § 75.226, which provide the Secretary with the authority to give special consideration to an application that demonstrates a rationale, are unlikely to generate any quantifiable costs or benefits. Many grant competitions already ask applicants to discuss the extent to which they can demonstrate a rationale for their proposed projects through a selection factor and, to the extent that it is included in additional competitions in the future, we do not believe that it would create a substantial burden for applicants because we assume that applicants in those programs would likely already have conceived an implicit logic model or other conceptual framework for their applications and would, therefore, experience only minimal paperwork burden associated with memorializing it in their applications to address the requirements of the demonstrates a rationale level of evidence.

Changes to § 75.227 provide the Secretary with the authority to give special consideration to rural applicants. The language in this section mirrors language adopted by the Department in the Administrative Priorities for Discretionary Grants Programs (Administrative Priorities), published in the Federal Register on March 9, 2020 (85 FR 13640), and we are codifying this language in EDGAR. As such, these changes will not generate any quantifiable costs and may benefit the Department and general public by improving the clarity and transparency of the Department's authority to provide special consideration to particular applicants.

Changes to § 75.234, which replace the word “special” with the word “specific,” are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.250, which update the heading and clarify that an extension of the project period is authorized by EDGAR only if the applicable statutes and regulations permit it, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.253, which allow a grantee whose request for a non-competitive continuation award has been denied to request reconsideration, could generate costs to affected grantees and the Department. In general, we do not deny a large number of non-competing continuation awards and, if that does happen, grantees are often aware of the likelihood of the decision well in advance and often cite no concerns if they do not receive a continuation award. Therefore, we do not believe that many grantees would qualify for the redress, and we do not believe that the few who may qualify would exercise the right. However, for the purpose of this analysis, we assume that we would process 10 such requests annually, which we believe is an overestimate of the likely incidence in order to capture the high end of potential costs. For each request, we assume a project director earning a loaded wage rate of $112.81 per hour, on average, would spend 24 hours drafting and submitting the request. At the Department, a program officer at the GS-13/1 level (loaded wage rate of $61.96 per hour) would spend approximately 8 hours reviewing each request, along with 2 hours for their supervisor at the GS-14/1 level (loaded wage rate of $72.69 per hour) to review. We also assume that a Department attorney at the GS-14/1 level (loaded wage rate of $72.69 per hour) would spend approximately 4 hours reviewing each request. In sum, we estimate that this provision would generate an additional cost of approximately $27,074 for grantees and $9,318 for the Department per year. In total, we estimate an additional cost of $36,392 per year.

The addition of a new § 75.254 gives the Secretary the authority to approve data collection periods. The language in this section is aligned with this previous authority under § 75.250(b) as well the Administrative Priorities and is just codifying this language in EDGAR. As such, these changes will not generate any quantifiable costs and may benefit the Department and general public by allowing for data collection periods that give grantees additional time to collect data to measure project impact.

Changes to § 75.261, which remove references to obsolete programs and make other edits, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.263, which remove the clause “notwithstanding any requirement in 2 CFR part 200,” are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to §§ 75.560-75.564, which align these sections with the Uniform Guidance and provide additional information on the application of indirect cost rates, are unlikely to generate any quantifiable costs and may benefit the Department and general public by improving the clarity of the regulations.

Changes to § 75.590, which allow the Department to require the use of an independent evaluation in a program and include a confidentiality provision, would likely generate transfers for affected grantees. Specifically, we assume that grantees that are required to use an independent evaluator will transfer grant funds from their currently designated purpose (such as to defray the costs of an internal evaluation) to pay for an independent evaluation. We note, however, that we do not believe that these transfers would substantially affect the level of support that beneficiaries of our competitive grant programs receive; the grantees would have spent a certain percentage of their awards on evaluation, whether such evaluation is conducted by an internal or external entity. We believe that the most likely programs in which the Department would require an independent evaluation are those that include an expectation of a rigorous evaluation using selection factors related to What Works Clearinghouse evidence standards in project evaluations. From 2014 through 2022, we included such selection factors in 18 competitions (excluding programs that have their own independent evaluation requirements, such as Education Innovation and Research and its predecessor, Investing in Innovation, because these programs are already included in the baseline), with a combined average of $194.8 million in awards per year. Assuming that evaluation costs in these programs average approximately 15 percent of total project costs, we estimate that the evaluations for these competitions would cost approximately $29,227,000 in Year 1.