[Federal Register Volume 83, Number 162 (Tuesday, August 21, 2018)]
[Rules and Regulations]
[Pages 42212-42214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18027]



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DEPARTMENT OF EDUCATION

34 CFR Chapter III

[Docket ID ED-2018-OSERS-0024]


Final 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)

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

ACTION: Final requirement.

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

SUMMARY: The Assistant Secretary for Special Education and 
Rehabilitative Services announces 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 competitions in fiscal year (FY) 2018 and 
later years.

DATES: This requirement is effective September 20, 2018.

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: 
[email protected].
    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-
800-8339.

SUPPLEMENTARY INFORMATION: 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.
    We published a notice of proposed requirement (NPR) in the Federal 
Register on June 20, 2018 (83 FR 28566). That notice contained 
background information and our reasons for proposing this particular 
requirement. The only difference between the proposed requirement and 
this final requirement is that we included a footnote within the final 
requirement explaining that this requirement does not apply to the 
National Technical Assistance and Dissemination Center for Children Who 
Are Deaf-Blind. This is not a substantive change because we explained 
in the Background section of the NPR that it was not our intent to 
apply this requirement to that Center.
    Public Comment: In response to our invitation in the NPR, 10 
parties submitted comments on the proposed requirement. Generally, we 
do not address technical and other minor changes, or suggested changes 
that the law does not authorize us to make under applicable statutory 
authority. In addition, we do not address general comments that raised 
concerns not directly related to the proposed priorities or 
definitions.
    Analysis of the Comments and Changes: An analysis of the comments 
follows.
    Comment: The majority of commenters expressed support for limiting 
the indirect cost rate to 10 percent, indicating that this would allow 
more funding for the State Deaf-Blind Projects to provide TA to 
families and caregivers, professionals, and others providing services 
to children who are deaf-blind.
    Discussion: We appreciate the commenters' support and agree with 
the comments for the reasons stated.
    Changes: None.
    Comment: One commenter expressed support for the cap on indirect 
cost rates but raised a concern that some current State Deaf-Blind 
Projects that are university-based may not apply for future 
competitions because of the cap, leading to a loss of services for 
children who are deaf-blind within those States. The commenter 
suggested that the Department consider allowing universities to reach 
individual agreements with the Department on indirect cost rates. 
Another commenter opposed the proposed cap, arguing that negotiated 
indirect cost rates better ensure that necessary administrative costs 
for university-based State projects are covered and, therefore, that 
the proposed cap on indirect cost rates could jeopardize sound 
administration of State projects.
    Discussion: We appreciate the commenters' concern regarding the 
potential for disruption of services for children who are deaf-blind 
within a State in the event an incumbent applicant does not apply for a 
new award under this program. We also appreciate the commenter's 
concern about the proper administrative oversight of State projects and 
we agree that strong administrative oversight is essential. However, 
many State deaf-blind projects, including university-based projects, 
have operated effectively while applying indirect costs at or below 10 
percent of their modified total direct costs. For this reason, we do 
not believe that the 10 percent cap established in this final rule will 
deprive the Deaf-Blind program of university-based applicants. We also 
believe that limiting the indirect cost rate, for university-based and 
non-university based projects, will not undermine sound administrative 
oversight of projects, but rather will be beneficial to the program and 
its intended beneficiaries and can be achieved with minimal disruption 
to project activities.
    Finally, since this is a competitive grant competition, it would be 
inappropriate, as one commenter suggests, to have separate requirements 
for incumbent grantees unavailable to other grantees.
    Changes: None.
    Comment: One commenter stated that changes to the indirect cost 
rate for this program could cause confusion if a grantee also has other 
approved indirect cost rates from a Federal agency.
    Discussion: We appreciate the commenter's concern about potential 
confusion if a grantee has another negotiated indirect cost rate 
granted by either the Department of Education or another Federal 
agency. We believe that grantees with sufficient administrative 
capacity to participate in this program will not find it difficult to 
apply different indirect cost rates to grants from different agencies. 
However, to minimize the risk of confusion cited by the commenter, the 
Department is prepared to provide all necessary technical assistance to 
grantees under this program to ensure that they understand the new 
requirement and charge the appropriate indirect cost rate to the grant.
    Changes: None.

Final Requirement

    The Assistant Secretary establishes the following requirement for 
this program. We may apply this requirement in any fiscal year in which 
this program is in effect.
    Final 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,

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unless specifically authorized by legislation. The grantee must use 
non-Federal revenue sources to pay for such unrecovered costs.\1\
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    \1\ The National Technical Assistance and Dissemination Center 
for Children Who Are Deaf-Blind (CFDA number 84.326T) (National 
Center) is not subject to this limitation on recovery of indirect 
costs.
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    This notice does not preclude the Department from proposing 
additional priorities, requirements, definitions, or selection 
criteria, subject to meeting applicable rulemaking requirements.
    Note: This notice does not solicit applications. In any year in 
which we choose to use this priority and these requirements, 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 final 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 FY 2018, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions, unless required by law or 
approved in writing by the Director of OMB. 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. Because this final requirement 
would be utilized in connection with a discretionary grant program, the 
requirement to offset new regulations in Executive Order 13771 does not 
apply.
    We have also reviewed this final 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 final 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 final 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 final 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 final 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 final 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

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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: August 16, 2018.
Johnny W. Collett,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2018-18027 Filed 8-20-18; 8:45 am]
BILLING CODE 4000-01-P