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###### Department of Education

          - 34 CFR Parts 75 and 350 

# AGENCY:

Department of Education. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

The Secretary proposes to amend the Education Department General Administrative Regulations (EDGAR) and the regulations for the National Institute on Disability and Rehabilitation Research (NIDRR). The proposed amendments to EDGAR would revise the general selection criteria concerning project design, services, and personnel available for use in direct grant programs. Consistent with the requirements of section 427 of the General Education Provisions Act (GEPA), these amendments would focus on ensuring that discretionary grant applicants demonstrate in their applications the steps they will take to ensure equitable access to, and participation in, their federally assisted programs by members of traditionally underrepresented groups. The proposed amendment to the criterion on quality of project personnel also would add a mandatory factor measuring the extent to which the application includes effective strategies for employing and advancing in employment qualified individuals with disabilities in the proposed project, including the accessibility of the project's worksite and equipment to these individuals. The Secretary also proposes to include the latter amendment concerning project personnel in the regulations providing selection criteria for certain programs administered by the NIDRR. 

# DATES:

We must receive your comments on or before January 2, 2001. 

# ADDRESSES:

Address all comments about these proposed regulations to Julius C. Cotton, U.S. Department of Education, 400 Maryland Avenue, SW., room 3652, ROB-3, Washington, DC 20202-4248. If you prefer to send your comments through the Internet, use the following address: comments@ed.gov. 

You must include the term “proposed selection criteria” in the subject line of your electronic message. 

# FOR FURTHER INFORMATION CONTACT:

Julius C. Cotton. Telephone: (202) 708-8562. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339. 

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

# SUPPLEMENTARY INFORMATION: 

## Invitation To Comment 

We invite you to submit comments regarding these proposed regulations and the potential effect of the use of the proposed selection criteria in direct grant programs supported by the Department. 

We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's direct grant programs. 

During and after the comment period, you may inspect all public comments about these proposed regulations in room 3652, ROB-3, Seventh & D Streets, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday of each week except Federal holidays. 

## Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record 

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability that needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, you may call (202) 205-8113 or (202) 260-9895. If you use a TDD, you may call the Federal Information Relay Service at 1-800-877-8339. 

## Background 

The Department of Education's mission is to ensure equal access to education and promote educational excellence throughout the nation. To ensure that these goals are being met in Department-funded discretionary grant programs, we are proposing several changes to the list of general selection criteria and factors in EDGAR. These EDGAR criteria and factors are used by most programs of the Department. Many programs do not have separate criteria and rely entirely on EDGAR criteria. Other programs have separate regulatory criteria. EDGAR authorizes the programs with separate criteria to use program criteria (and statutory criteria) in conjunction with the EDGAR criteria to evaluate applications. As a result, these amendments would affect most programs of the Department. We propose to amend the NIDRR regulations which do not incorporate the EDGAR provision that permits the use of both EDGAR and program criteria. 

                    The proposed changes stem from two related departmental efforts that have the common goal of ensuring equity and excellence in Department-funded grant projects. The first effort relates to current requirements found in section 427 of the General Education Provisions Act (GEPA) (20 U.S.C. 1228a), which was enacted by Congress in 1994. Section 427 of GEPA requires that each applicant for a Department grant include in its application a description of the steps the applicant proposes to take to ensure equitable access to, and participation in, its federally assisted programs for students, teachers, and other program beneficiaries with special needs by addressing barriers to that access and participation, including barriers based on gender, race, national origin, color, disability, or age. The Secretary is prepared to provide technical assistance to applicants in connection with meeting the                           ( print page 66201)                        requirements of section 427 of GEPA and with the selection criteria in this notice of proposed rulemaking.                 

Although grant applicants currently provide statements in their applications indicating how they will ensure equitable access and participation, we believe that greater emphasis should be placed on how well the applicants address the GEPA 427 requirements. Under the proposed changes, discretionary grant applicants for programs using the EDGAR list of selection criteria would be rated based on the extent to which their grant applications include an effective project design and project services for ensuring equitable access and participation. These factors also would be amended to more closely track the language in section 427 of GEPA. They would be mandatory factors under their respective criteria. 

The second effort involves a similar concern relating to the diversity of project staff who carry out funded projects. Current provisions in EDGAR include—under the criterion for project personnel—a mandatory factor for considering the extent to which the applicant encourages applications for employment from persons who are members of groups that have been traditionally underrepresented. The Secretary is concerned that inadequate attention has been given by many grantees to the employment and advancement of individuals with disabilities. Therefore, this proposal would strengthen these current provisions as they relate to employment and advancement of these individuals and to the provision of accessible worksites and equipment for persons with disabilities. Section 606 of the Individuals with Disabilities Education Act (IDEA) requires the Secretary to ensure that each recipient of assistance under IDEA makes positive efforts to employ and advance in employment qualified individuals with disabilities. We believe that—in promoting excellence and equity in Department-funded projects—this is an appropriate factor to be evaluated in making competitive selections not only under IDEA, but also in other Department programs. Therefore—under the Secretary's general rulemaking authority—we are proposing that the existing criterion on quality of project personnel be amended to add a factor that focuses specifically on individuals with disabilities, consistent with the provisions in section 606 of the IDEA. 

For Department programs using the revised EDGAR criterion on quality of project personnel, applicants would be rated on how well their application demonstrates effective strategies for employing and advancing in employment qualified individuals with disabilities in the proposed project. These strategies also include those for the provision of accessible worksites and equipment. In applying this criterion, the Secretary, as appropriate, would also consider the applicant's past success in employing and advancing in employment individuals with disabilities. The latter consideration would be inappropriate, for example, for a newly formed private, nonprofit organization. 

Within the Office of Special Education and Rehabilitative Services, NIDRR supports specialized disability-related activities and uses selection criteria found in 34 CFR part 350 rather than the general EDGAR selection criteria. A similar factor is proposed for addition to part 350 to be used in administering NIDRR programs. 

## Executive Order 12866

### Clarity of the Regulations 

Executive Order 12866 and the President's Memorandum of June 1, 1998, on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand. 

The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following: 
    - Are the requirements in the proposed regulations clearly stated?
    - Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
    - Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
    - Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 75.210 General selection criteria .)                 
    - Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION                      section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?                 
    - What else could we do to make the proposed regulations easier to understand?

                    Send any comments that concern how the Department could make these proposed regulations easier to understand to the person listed in the                     **ADDRESSES**                     section of the preamble.                 

## Regulatory Flexibility Act Certification 

The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. The small entities affected would be applicants for the Department's direct grant programs. The proposed regulations would not have a significant economic impact on any small entities but are expected to benefit all applicants by reducing delays in the grant award process that otherwise would be caused by rulemaking necessary to establish special selection criteria for individual competitions. 

## Paperwork Reduction Act of 1995 

These proposed regulations do not contain any information collection requirements. 

## Intergovernmental Review 

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

This document provides early notification of our specific plans and actions for these programs. 

## Assessment of Educational Impact 

The Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available. 

## Electronic Access to This Document 

                    You may view this document, as well as all other Department of Education documents published in the                     **Federal Register**                    , in text or Adobe Portable Document Format (PDF) on the Internet at either of the following sites:                 

http://ocfo.ed.gov/​fedreg.htm

http://www.ed.gov/​news.html

To use PDF you must have Adobe Acrobat Reader, which is available free at either of the previous sites. If you have questions about using PDF, call the U.S. Government Printing Office (GPO); toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530. 

# Note:

                        The official version of this document is the document published in the                         **Federal Register**                        . Free Internet access to the official edition of the                         **Federal Register**                         and the Code of Federal Regulations is available on GPO                               ( print page 66202)                            Access at: http://www.access.gpo.gov/​nara/​index.html.                    

(Catalog of Federal Domestic Assistance Number 84.133 for Disability and Rehabilitation Research: General Provisions)

# List of Subjects 

### 34 CFR Part 75

      - Accounting
      - Administrative practice and procedure
      - Grant programs—education
      - Reporting and recordkeeping requirements

### 34 CFR Part 350

      - Administrative practice and procedure
      - Eligibility
      - Grant administration

Dated: October 26, 2000.

Richard W. Riley, 

Secretary of Education. 

For the reasons discussed in the preamble, the Secretary proposes to amend parts 75 and 350 of title 34 of the Code of Federal Regulations as follows: 

# PART 75—DIRECT GRANT PROGRAMS 

1. The authority citation for part 75 continues to read as follows: 

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

2. Section 75.210 is amended as follows: 

a. By revising the undesignated introductory text; 

b. Redesignating paragraph (c)(2) as (c)(3); 

c. Adding a new paragraph (c)(2); 

d. Revising newly redesignated paragraph (c)(3) introductory text; and 

e. Revising paragraphs (d)(2) and (e)(2). 

The revisions and addition read as follows:

§ 75.210 

In determining the selection criteria to be used in each grant competition, the Secretary may select one or more of the following criteria and may select from among the list of optional factors under each criterion. However, paragraphs (c)(2), (d)(2), and (e)(2) of this section are mandatory factors under their respective criteria: 

* * * * *

(c) * * * 

(2) In determining the quality of the design of the proposed project, the Secretary considers the extent to which the application proposes effective steps to eliminate barriers that may impede equitable access or participation by groups that have been traditionally underrepresented based on race, color, national origin, gender, age, or disability. 

(3) In addition to paragraph (c)(2) of this section, the Secretary also considers one or more of the following factors: 

* * * * *

(d) * * * 

(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and effectiveness of the applicant's strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have been traditionally underrepresented based on race, color, national origin, gender, age, or disability, including its steps to overcome barriers to equitable participation by those eligible participants. 

* * * * *

(e) * * * 

(2)(i) In determining the quality of project personnel— 

(A) The Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have been traditionally underrepresented based on race, color, national origin, gender, or age; and 

(B) The Secretary considers the extent to which an application includes effective strategies for employing and advancing in employment qualified individuals with disabilities in the proposed project, including the accessibility of the project's worksite and equipment to these individuals. 

(ii) In determining the effectiveness of the strategies under paragraph (e)(2)(i)(B) of this section, the Secretary, as appropriate, considers the applicant's success, as described in the application, in employing and advancing in employment qualified individuals with disabilities. 

* * * * *

# PART 350—DISABILITY AND REHABILITATION RESEARCH PROJECTS AND CENTERS PROGRAM 

3. The authority citation for part 350 continues to read as follows: 

Authority:Sec. 204; 29 U.S.C. 761-762, unless otherwise noted. 

4. Section 350.54 is amended by revising paragraph (n)(2) to read as follows: 

§ 350.54 

* * * * *

(n) * * * 

(2)(i) In determining the quality of project staff— 

(A) The Secretary considers the extent to which an applicant encourages applications for employment from persons who are members of groups that have been traditionally underrepresented based on race, color, national origin, gender, or age; and 

(B) The Secretary considers the extent to which an application includes effective strategies for employing and advancing in employment qualified individuals with disabilities in the proposed project, including the accessibility of the project's worksite and equipment to these individuals. 

(ii) In determining the effectiveness of the strategies under paragraph (n)(2)(i)(B) of this section, the Secretary, as appropriate, considers the applicant's success, as described in the application, in employing and advancing in employment qualified individuals with disabilities. 

* * * * *

[FR Doc. 00-27991 Filed 11-2-00; 8:45 am] 

BILLING CODE 4000-01-P