[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Proposed Rules]
[Pages 28566-28568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13269]


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DEPARTMENT OF EDUCATION

34 CFR Chapter III

[Docket ID ED-2018-OSERS-0024]


Proposed Requirement--State Technical Assistance Projects To 
Improve Services and Results for Children Who Are Deaf-Blind and 
National Technical Assistance and Dissemination Center for Children Who 
Are Deaf-Blind (TA&D-DB)

    Catalog of Federal Domestic Assistance (CFDA) Number: 84.326T.

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

ACTION: Proposed requirement.

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SUMMARY: The Assistant Secretary for Special Education and 
Rehabilitative Services proposes a requirement under the Technical 
Assistance and Dissemination to Improve Services and Results for 
Children with Disabilities (TA&D) program. The Assistant Secretary may 
use this requirement for a competition in fiscal year (FY) 2018 and 
later years.

DATES: We must receive your comments on or before July 11, 2018.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
    <bullet> Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``How to Use Regulations.gov.''
    <bullet> Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about this proposed requirement, address 
them to Jo Ann McCann, U.S. Department of Education, 400 Maryland 
Avenue SW, Room 5162, Potomac Center Plaza, Washington, DC 20202-5076.
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available.

FOR FURTHER INFORMATION CONTACT: Jo Ann McCann, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 5162, Potomac Center Plaza, 
Washington, DC 20202-5076. Telephone: (202) 245-7434. Email: 
<a href="/cdn-cgi/l/email-protection#baf0d594fbd4d494f7d9f9dbd4d4fadfde94ddd5cc"><span class="__cf_email__" data-cfemail="c18baeef80afafef8ca282a0afaf81a4a5efa6aeb7">[email protected]</span></a>. Tina Diamond, 400 Maryland Avenue SW, Room 5136, 
Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 245-
6674. Email: <a href="/cdn-cgi/l/email-protection#c490adaaa5ea80ada5a9abaaa084a1a0eaa3abb2"><span class="__cf_email__" data-cfemail="6a3e03040b442e030b0705040e2a0f0e440d051c">[email protected]</span></a>.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
this document. We urge you to identify clearly the specific issue that 
each comment addresses to ensure your comments are accurately 
represented in the development of the final requirements.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866, 13563, and 13771 and their 
overall requirement of reducing regulatory burden that might result 
from this proposed requirement. Please let us know of any further ways 
we could reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about this proposed requirement by accessing Regulations.gov. 
You may also inspect the comments in person in Room 5145, 550 12th 
Street SW, Washington, DC, between 8:30 a.m. and 4:00 p.m., Eastern 
Time, Monday through Friday of each week except Federal holidays. 
Please contact the persons listed under FOR FURTHER INFORMATION 
CONTACT.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this proposed requirement. If you want to 
schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the persons listed under FOR FURTHER INFORMATION 
CONTACT.
    Purpose of Program: The purpose of the Technical Assistance and 
Dissemination to Improve Services and Results for Children with 
Disabilities program is to promote academic achievement and to improve 
results for children with disabilities by providing technical 
assistance (TA), supporting model demonstration projects, disseminating 
useful information, and implementing activities that are supported by 
scientifically based research.

    Program Authority: 20 U.S.C. 1461, 1463, 1481, and 1482.

Proposed Requirement

Background

    The Individuals with Disabilities Education Act (IDEA) requires 
that the Secretary reserve $12,832,000 of IDEA Part D funds each year 
to address the needs of children with deaf-blindness (see section 
682(d)(1)(A) of IDEA, 20 U.S.C. 1482(d)). The Office of Special 
Education Programs (OSEP) supports children who are deaf-blind and 
their

[[Page 28567]]

families in part by funding the State Technical Assistance Projects to 
Improve Services and Results for Children Who Are Deaf-Blind and 
National Technical Assistance and Dissemination Center for Children Who 
Are Deaf-Blind (TA&D-DB) competition (CFDA number 84.326T). Authorized 
activities include providing TA on evidence-based practices to 
professionals and others involved in providing services that promote 
academic achievement and improve results for children who are deaf-
blind. For purposes of this document, the term ``children who are deaf-
blind'' refers to infants, toddlers, children, youth, and young adults 
(birth through 21) who are deaf-blind.
    To ensure that children who are deaf-blind and their families 
receive appropriate supports to address their specific needs, we 
propose a requirement that would limit the recovery of indirect costs 
by State Technical Assistance Projects to Improve Services and Results 
for Children Who Are Deaf-Blind (CFDA number 84.326T) grantees under 
this grant competition. The National Technical Assistance and 
Dissemination Center for Children Who Are Deaf-Blind (CFDA number 
84.326T) (National Center) would not be subject to this limitation on 
recovery of indirect costs. The National Center's burden for indirect 
costs is different from the burden for State Technical Assistance 
Projects because the National Center does not provide TA directly to 
professionals who serve deaf-blind children.
    The purpose of this requirement is to ensure that more Federal 
funding flows through to meet the needs of children who are deaf-blind. 
We are proposing this requirement based on 2 CFR 200.414(c)(1), which 
allows a Federal awarding agency to use an indirect cost rate different 
from the negotiated rate when required by Federal statute or 
regulation. Federal discretionary grantees have historically been 
reimbursed for indirect costs at the rate that the grantee has 
negotiated with its cognizant agency, and we believe that use of the 
negotiated rate is appropriate for most grants in most circumstances. 
However, grantees under the State Technical Assistance Projects to 
Improve Services and Results for Children Who Are Deaf-Blind program 
(CFDA number 84.326T), provide TA to professionals and others who 
provide direct services to children who are deaf-blind. Therefore, we 
believe most of these grants do not carry the same burden of overhead 
or administrative costs as do many other federally funded projects.
    We analyzed historical grantee data for grants previously awarded 
under CFDA number 84.326T and found a wide range of indirect cost rate 
agreements in place. Over the past five years, indirect cost rate 
agreements for grantees under CFDA number 84.326T have ranged from 0 
percent to 65 percent, with a median of 9 percent for 49 grantees 
examined. However, our analysis indicates that 28 grantees--
approximately 60 percent--currently funded under this program operate 
grants with an indirect cost rate of 10 percent or less. Because a 
majority of current grantees are able to run programs using 90 percent 
or more of their grant funds to provide direct services, we believe it 
is reasonable to set a cap of 10 percent on the indirect costs for 
future grantees.

Proposed Requirement

Allowable Indirect Costs

    A grantee may recover the lesser of (a) its actual indirect costs 
as determined by the grantee's negotiated indirect cost rate agreement 
and (b) 10 percent of its modified total direct costs. If a grantee's 
allocable indirect costs exceed 10 percent of its modified total direct 
costs, the grantee may not recoup the excess by shifting the cost to 
other grants or contracts with the U.S. Government, unless specifically 
authorized by legislation. The grantee must use non-Federal revenue 
sources to pay for such unrecovered costs.

Directed Question

    The Department seeks additional comment on this question: If the 
Department required grantees to justify all indirect costs that exceed 
10 percent, what circumstances could justify higher indirect costs? The 
Department is seeking comment on the circumstances that grantees may 
encounter that could result in indirect costs that exceed 10 percent.

Final Requirement

    We will announce the final requirement for the State Technical 
Assistance Projects to Improve Services and Results for Children Who 
Are Deaf-Blind and National Technical Assistance and Dissemination 
Center for Children Who Are Deaf-Blind (TA&D-DB) competition (CFDA 
Number: 84.326T) in a document in the Federal Register. We will 
determine the final requirement after considering public comments on 
the proposed requirement and other information available to the 
Department. This document does not preclude us from proposing 
additional priorities, requirements, definitions, or selection 
criteria, subject to meeting applicable rulemaking requirements.
    This document does not solicit applications. In any year in which 
we choose to use this proposed requirement, we invite applications 
through a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (OMB). Section 3(f) of Executive Order 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866 and 
that imposes total costs greater than zero, it must identify two 
deregulatory actions. For Fiscal Year 2018, any new incremental costs 
associated with a new regulation must be fully offset by the 
elimination of existing costs through deregulatory actions. However, 
Executive Order 13771 does not apply to ``transfer rules'' that cause 
only income transfers between taxpayers and program beneficiaries, such 
as those regarding discretionary grant programs. The proposed 
requirement would be utilized in connection with a discretionary grant 
program and, therefore, Executive Order 13771 is not applicable.

[[Page 28568]]

    We have also reviewed this proposed regulatory action 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 upon 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.'' The Office of 
Information and Regulatory Affairs of OMB 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 this proposed requirement based on a reasoned 
determination that the benefits would justify the costs. In choosing 
among alternative regulatory approaches, we selected this approach to 
maximize net benefits. Based on the analysis that follows, the 
Department believes that this regulatory action is consistent with the 
principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. This regulatory action may 
result in a subset of grantees under this program recovering less funds 
for indirect costs than they would otherwise have recovered prior to 
this proposed new maximum indirect cost rate, which could impact their 
operations. Further, it could result in particular entities not seeking 
funding under this program because of an inability to operate under 
this proposed new maximum indirect cost rate. However, we believe that 
the benefits to program beneficiaries of utilizing a higher percentage 
of program funds for direct services outweigh these costs.

Paperwork Reduction Act of 1995

    This document does not contain Paperwork Reduction Act 
requirements. The Technical Assistance and Dissemination to Improve 
Services and Results for Children with Disabilities program has been 
approved by OMB to collect data under OMB 1820-0028. The proposed 
requirement would not impact the approved and active data collection.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance. This document 
provides early notification of our specific plans and actions for this 
program.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., Braille, large print, 
audiotape, or compact disc) on request to the program contact persons 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other 
documents of this Department published in the Federal Register, in text 
or Portable Document Format (PDF). To use PDF you must have Adobe 
Acrobat Reader, which is available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: June 15, 2018.
Johnny W. Collett,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2018-13269 Filed 6-19-18; 8:45 am]
 BILLING CODE 4000-01-P


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