[Federal Register Volume 87, Number 156 (Monday, August 15, 2022)]
[Rules and Regulations]
[Pages 50000-50004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17422]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Community Living

45 CFR Part 1330

RIN 0985-AA16


National Institute on Disability, Independent Living, and 
Rehabilitation Research

AGENCY: Administration for Community Living, Department of Health and 
Human Services.

ACTION: Final rule.

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SUMMARY: The Administration for Community Living (ACL) within the 
Department of Health and Human Services (HHS or the Department) is 
amending its regulations for the National Institute on Disability, 
Independent Living and Rehabilitation Research (NIDILRR). These minor 
amendments to NIDILRR's peer review criteria allow NIDILRR to better 
evaluate the extent to which our grant applicants conduct outreach to 
people with disabilities and people from other groups that 
traditionally have been underserved and underrepresented, as described 
in Executive Order 13985, and emphasize the need for research and 
development activities that apply appropriate engineering knowledge and 
techniques within NIDILRR's Rehabilitation Engineering Research Centers 
(RERC) program.

DATES: These final regulations are effective September 14, 2022.

FOR FURTHER INFORMATION CONTACT: Phillip Beatty, Director, NIDILRR 
Office of Research Sciences, Administration for Community Living, 
Department of Health and Human Services, 330 C Street SW, Washington, 
DC 20201. Email: [email protected], Telephone: (202) 795-7305.

SUPPLEMENTARY INFORMATION: 

I. Statutory Authority

    ACL publishes this final rule under the authority granted to the 
Director of the National Institute on Disability, Independent Living, 
and Rehabilitation Research (the Director), under 29 U.S.C. 762(f) to 
provide for scientific peer review of all applications for financial 
assistance for research, training, and demonstrations projects over 
which the Director has authority; and under 29 U.S.C. 764(b)(3) to 
establish and support Rehabilitation Engineering Research Centers 
(RERCs).

II. Background

    The HHS regulation for NIDILRR programs was developed and finalized 
in 2016 following the transfer of NIDILRR to ACL and HHS from the 
Department of Education, as required by the Workforce Innovation and 
Opportunity Act (WIOA) of 2014. NIDILRR's mission is to generate new 
knowledge and to promote its effective use to improve the abilities of 
individuals with disabilities to perform

[[Page 50001]]

activities of their choice in the community as well as to expand 
society's capacity to provide full opportunities and accommodations for 
individuals with disabilities. As the primary research enterprise 
within ACL, NIDILRR's mission is highly complementary to the 
overarching mission of ACL to maximize the independence, well-being, 
and health of older adults, people with disabilities across the 
lifespan, and their families and caregivers. NIDILRR programs address a 
wide range of disabilities and impairments across all age groups and 
promote health and function, community living and participation, and 
employment. To accomplish these goals, NIDILRR invests in research, 
knowledge translation, and capacity-building activities through its 
discretionary grant-funding authorities.
    This final rule provides minor but important updates to the NIDILRR 
rule at 45 CFR part 1330).

III. Provisions of the Proposed Regulations

    The first update to 45 CFR part 1330 is directly responsive to 
Executive Order 13985, Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government, 86 FR 7009 
(Jan. 20, 2021) (E.O.). The purpose of the update is to enable NIDILRR 
to better evaluate, through the peer review of grant applications, the 
extent to which grant applicants conduct outreach to people who are 
members of specific groups that have traditionally been underserved and 
underrepresented in research. See 86 FR 7009 (``The term `underserved 
communities' refers to populations sharing a particular characteristic, 
as well as geographic communities, that have been systematically denied 
a full opportunity to participate in aspects of economic, social, and 
civic life, as exemplified by the list in the preceding definition of 
`equity.' ''). The E.O. defines ``equity'' as ``consistent and 
systematic fair, just, and impartial treatment of all individuals, 
including individuals who belong to underserved communities that have 
been denied such treatment, such as Black, Latino, and Indigenous and 
Native American persons, Asian Americans and Pacific Islanders and 
other persons of color; members of religious minorities; lesbian, gay, 
bisexual, transgender, and queer (LGBTQ+) persons; persons with 
disabilities; persons who live in rural areas; and persons otherwise 
adversely affected by persistent poverty or inequality.'' Id. Applicant 
refers to organizations such as universities or other organizations 
that apply for NIDILRR grants. NIDILRR's current regulation regarding 
applicants' proposed ``Project Staff'' (45 CFR 1330.24(n)) combines a 
significant number of underrepresented groups into one list (``. . . 
based on race, color, national origin, gender, age, or disability''), 
and asks reviewers to broadly evaluate the extent to which the grant 
applicant encourages applications for employment from people who are 
members of those groups in the list. This format does not allow 
reviewers to evaluate applicants' outreach and hiring practices for 
people with disabilities, or for other underserved and underrepresented 
populations highlighted in the list, as distinct groups.
    To better promote applicants' hiring of people with disabilities, 
and people from other underserved communities--we proposed to revise 45 
CFR 1330.24(n) to disaggregate these populations into two distinct peer 
review subcriteria. Disaggregation of people with disabilities and 
people from other underserved communities into separate subcriteria 
allows peer reviewers to more directly evaluate and score the extent to 
which grant applicants encourage applications for employment from 
people in each of these distinct groups. ACL also proposes a conforming 
amendment to 45 CFR 1330.23(b) reflecting this revision to the 
selection criteria. As a result of these changes, applicants will be 
required to describe their outreach practices with respect to people 
with disabilities and other specific groups, separately and distinctly. 
ACL intends for grant applicants to provide quantitative and/or 
qualitative information regarding these disaggregated groups in the 
narrative of their proposal, and for peer reviewers to accordingly use 
this information to evaluate and score each individual application.
    The second update to 45 CFR part 1330 is intended to better 
emphasize the need for engineering research and development (R&D) 
activities in NIDILRR's RERC program funding opportunities. The update 
would add sub-criteria under both the ``Design of Research Activities'' 
(45 CFR 1330.24(c)) and ``Design of Development Activities'' (45 CFR 
1330.24(d)) to allow reviewers to evaluate the extent to which 
applicants are proposing engineering knowledge and methods that are 
appropriate to the research questions and development aims described in 
their RERC applications. The absence of such engineering-focused 
criteria have led to some RERC grants that are not optimally using 
engineering R&D methods as envisioned in the statutory language that 
authorizes and names the RERC program. See 29 U.S.C. 764(b)(3).

IV. Analysis of Responses to Public Comments

    We received fourteen public comments from six individuals, five 
stakeholder associations, and three university departments. We have 
reviewed all of the public comments received and considered the 
concerns raised by all stakeholders. As a result, we have made 
revisions to the proposed regulations at 45 CFR 1330.24. Specifically, 
we have modified 45 CFR 1330.24(c), (d), and (n). See Section IV 
``Provisions of the Final Regulations'' for detailed description of 
these changes. A summary of the comments received and our responses to 
those comments appear in the paragraphs below.
    Comment: Five parties provided comments that were fully supportive 
of the proposed revisions to NIDILRR's menu of peer review criteria. 
Two of these parties particularly appreciated NIDILRR's continued 
inclusion of people who are underrepresented in research professions 
based on age.
    Response: We thank these commenters for their support.
    Comment: One commenter suggested that the evaluation of the extent 
to which applicant organizations encourage applications from and hire 
people with disabilities and people from other underrepresented 
communities is ``more appropriately evaluated by the government'', than 
by the peer review process. The commenter suggests that instead of 
evaluating these factors as part of the peer review process, ACL and 
NIDILRR should use documented histories of applicant compliance or 
noncompliance with the Americans with Disabilities Act and other civil 
rights laws and regulations, as a determinant of eligibility for 
Federal funding.
    Response: NIDILRR and other ACL and HHS grant opportunities have 
strong non-discrimination requirements for applicants, and NIDILRR 
grants are issued with detailed Terms and Conditions related to 
compliance with government-wide non-discrimination laws and 
regulations, including the Americans with Disabilities Act, and the 
Rehabilitation Act. ACL and NIDILRR will maintain these important 
compliance requirements and continue to evolve and implement policies 
that promote accessibility as a requirement for Federal funding. 
However, compliance with broad non-discrimination laws is not the same 
as purposefully encouraging applications

[[Page 50002]]

for employment from people with disabilities and people from other 
underrepresented and underserved communities. NIDILRR and the field of 
disability research has a strong and direct interest in, and will 
benefit significantly from, growth in the representation of people with 
disabilities and investigators from underserved communities. This 
interest is reflected in our long-standing peer review sub-criterion 
about the extent to which grant applicants encourage applications for 
employment from people with disabilities and people from other 
underrepresented and underserved communities. By disaggregating this 
sub-criterion, consistent with Executive Order 13985, we aim to 
evaluate the extent to which applicant organizations are encouraging 
applications for employment from people with disabilities and people 
from other underrepresented and underserved communities.
    Comment: One commenter noted that NIDILRR's proposed disaggregated 
Project Staff subcriteria will appropriately promote consideration of 
the extent to which applicant organizations recruit people with 
disabilities. This commenter suggested that NIDILRR provide further 
specificity in the disability sub-criterion, in a way that would 
further value the recruitment of people with disabilities who have the 
greatest support needs. The commenter suggested that NIDILRR provide a 
scoring rubric for this disability sub-criterion, which would 
potentially provide more points for applicant organizations that 
demonstrate efforts to recruit and hire people with disabilities who 
have the greatest support needs.
    Response: NIDILRR agrees with the commenter that people with 
disabilities vary in their level of disability and support needs. 
NIDILRR's programs are authorized by the Rehabilitation Act of 1973, as 
amended. The Rehabilitation Act consistently emphasizes that the 
programs that it authorizes, including NIDILRR, must benefit people 
with disabilities--especially people with the most significant 
disabilities (29 U.S.C. 764(a)(1)). To reflect this foundational 
emphasis in our authorizing statute, NIDILRR is modifying the proposed 
sub-criterion to state that people with disabilities may include, but 
are not limited to, people with disabilities who have the greatest 
support needs.
    While NIDILRR does not provide scoring rubrics with its scoring 
criteria and subcriteria in 45 CFR 1330(n), by including this 
clarification in the sub-criterion we specifically allow grant 
applicants to describe, and reviewers to evaluate the extent to which 
applicant organizations encourage applications from people with 
disabilities who have the greatest support needs.
    Comment: One commenter noted concern that grant applicant 
organizations may be evaluated not just on their commitment to 
increasing representation of people with disabilities or people from 
other underrepresented communities in their organizations, but on the 
data that they can provide as evidence of recruitment and hiring. The 
commenter noted that individual researchers may not be able to 
influence their organizations' recruitment and hiring practices, and 
therefore may be penalized because of the practices of their 
organizations.
    Response: ACL, NIDILRR, and most other Federal grants are made to 
organizations, and not directly to individual researchers. As such, our 
criteria purposefully address the plans, actions, and resources of 
applicant organizations, and not of individual investigators. The 
commenter is correct that NIDILRR aims to evaluate not just the 
applicant organization's commitment to recruitment of people with 
disabilities or people from other underrepresented communities, but the 
actions they have taken to encourage applications for employment from 
people with disabilities and people from other underrepresented groups. 
It is up to applicant organizations to determine how they will address 
this sub-criterion, and they may provide qualitative or quantitative 
data in doing so.
    Comment: Three commenters noted that it will be difficult for an 
applicant to provide evidence of hiring people with disabilities or 
people from underrepresented communities. One of these commenters noted 
that organizations' collection of this information from their employees 
is typically voluntary, and therefore likely unreliable. Two of these 
commenters cautioned that the revised subcriteria may place pressure on 
researchers and their teams to disclose disabilities or to disclose 
demographic characteristics that they wish to remain private. Two of 
the commenters suggested that NIDILRR provide clarification to peer 
reviewers on ways to address these subcriteria while recognizing 
applicant institutions' policies that do not require disclosure of 
disability or other demographic characteristics.
    Response: Based upon these comments, our final rule will not 
include language that focuses on applicants' hiring practices. The 
final rule will, as proposed, disaggregate people with disabilities 
from other underserved populations in 45 CFR 1330(n), and will continue 
to focus on the extent to which applicants encourage applications for 
employment from people with disabilities and other underrepresented 
groups.
    ACL intends for grant applicants to respond to our disaggregated 
subcriteria with qualitative or quantitative information, or both, in 
the narrative of their proposal. Peer reviewers will use this 
information to evaluate and score each individual application. As 
revised for this final rule, nothing in the proposed subcriteria 
language compels applicants to provide quantitative data that would 
require applicants or their potential employees to disclose disability 
or other individual characteristics.
    NIDILRR intentionally does not further interpret these review 
criteria that come from our program regulations or provide guidance to 
applicants or reviewers on the application of any of the criteria. We 
rely on individual reviewers to consistently apply these and other 
criteria for each of the grant applications they are reviewing. This 
approach to peer review, which is commonly used and accepted within the 
scientific community, allows reviewers with different perspectives and 
areas of expertise to participate meaningfully in the peer review 
process.
    Comment: Five commenters supported the addition of proposed 
engineering specifications to the research and development subcriteria. 
These commenters, however, suggested that ACL and NIDILRR further 
specify and define engineering as part of the subcriteria, and offered 
a variety of suggestions for further definition.
    Response: NIDILRR has considered this feedback, in the context of 
the ``Design of Research Activities'' and ``Design of Development 
Activities'' subcriteria that our proposed additions would fit within, 
under 45 CFR 1330.24(c) and 45 CFR 1330.24(d). Within those 
subcriteria, there are many terms that NIDILRR could define in much 
greater detail, but purposefully does not. For instance, under ``Design 
of Research Activities,'' there is a sub-criterion about the extent to 
which the data analysis methods are appropriate. Instead of further 
delineating the wide variety of data analysis methods that could be 
proposed by applicants and evaluated by reviewers, we leave the 
application of this broad sub-criterion to the applicants and 
reviewers. The evaluation of the broad sub-criterion about the 
appropriateness of data analysis methods is only possible within the 
context of the grant application for which it is being evaluated. For 
some applications, it is

[[Page 50003]]

appropriate for applicants to propose qualitative analysis of in-depth 
interview data. For other applications, it is appropriate for 
applicants to propose statistical analysis of highly quantitative 
data--depending on the applicant's aims and research questions. We do 
not define each of the innumerable potential data analysis methods that 
applicants could propose.
    The same logic and approach apply under our proposed subcriteria 
related to engineering. As noted by the commenters, there are a wide 
range of engineering specialties and approaches that we could further 
define, including but not limited to biomedical engineering, electrical 
engineering, mechanical engineering, and software development and 
computer science. NIDILRR's intent, however, is for reviewers to 
evaluate the extent to which RERC applicants are applying engineering 
knowledge and techniques that are appropriate to address the aims and 
objectives of the proposed RERC grant.
    To better reflect this specific intent, NIDILRR is modifying our 
two proposed subcriteria by adding ``appropriate'' prior to the word 
engineering.
    Comment: NIDILRR received a number of comments that were not 
directly related to the proposed rule. These comments focused on topics 
including NIDILRR's peer review processes and policies, the 
availability of researchers with disabilities in the labor market, 
funding for accommodations used by employees with disabilities, and the 
importance of research on the needs, experiences, and outcomes of 
people with communication disabilities.
    Response: All of these are important topics, and we look forward to 
engaging with NIDILRR stakeholders on these topics.

V. Provisions of the Final Regulations

    In this final rule, we are adopting the provisions in the January 
10 proposed rule, with the following changes:
    [ssquf] Revised proposed 45 CFR 1330.24(c)(5) to add 
``appropriate'' prior to the word engineering.
    [ssquf] Revised proposed 45 CFR 1330.24(d)(4) to add 
``appropriate'' prior to the word engineering.
    [ssquf] Revised proposed 45 CFR 1330.24(n)(1) to specify that 
people with disabilities may include, but are not limited to, people 
with disabilities who have the greatest support needs.
    [ssquf] Revised proposed 45 CFR 1330.24(n)(1) to delete ``and 
hires.''
    [ssquf] Revised proposed 45 CFR 1330.24(n)(2) to delete ``and 
hires.''
    [ssquf] Revised proposed 45 CFR 1330.24(n)(2) to add ``other.''

VI. Required Regulatory Analyses

A. Executive Orders 12866 and 13563

    E.O. 12866, ``Regulatory Planning and Review,'' and E.O. 13563, 
``Improving Regulation and Regulatory Review,'' direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if the regulation is necessary, to select regulatory approaches that 
maximize net benefits.
    OMB determined that the rulemaking was not an economically 
significant regulatory action under these E.O.s. The preambles to this 
rule maintained that it primarily described procedural changes that 
would require Department expenditures to implement.

B. Regulatory Flexibility Act

    The Department has examined the economic implications of this final 
rule as required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 
et seq. The RFA requires an agency to describe the impact of a final 
rulemaking on small entities by providing an initial regulatory 
flexibility analysis, unless the agency determines that the final rule 
will not have a significant economic impact on a substantial number of 
small entities, provides a factual basis for this determination, and 
certifies the statement. 5 U.S.C. 603(a) and 605(b). The Department 
considers a proposed or final rule to have a significant economic 
impact on a substantial number of small entities if it has at least a 
three percent impact on revenue of at least five percent of small 
entities. The Department has determined, and the Secretary certifies, 
that this final rule would not have a significant economic impact on 
the operations of a substantial number of small entities.

C. Executive Order 13132 (Federalism)

    E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999) establishes 
certain requirements that an agency must meet when it promulgates a 
rule that imposes substantial direct requirement costs on state and 
local governments or has federalism implications. The Department has 
determined that this final rule would not impose such costs or have any 
federalism implications.

D. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    HHS has analyzed this final rule in accordance with the principles 
set forth in E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249 (Nov. 6, 2000). HHS has determined that 
the final rule does not contain policies that would have a substantial 
direct effect on one or more Indian Tribes, on the relationship between 
the Federal Government and Indian Tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
Tribes. In accordance with the Department's Tribal consultation policy, 
the Department solicited comments from tribal officials on any 
potential impact on Indian Tribes prior to promulgating this final 
rule.

E. National Environmental Policy Act

    HHS had determined that this final rule would not have a 
significant impact on the environment.

F. Paperwork Reduction Act of 1995

    In accordance with the Paperwork Reduction Act of 1995 and its 
implementing regulations, 44 U.S.C. 3501-3521; 5 CFR part 1320, 
appendix A.1, the Department has reviewed this final rule and has 
determined that it does not establish new collections of information.
    Alison Barkoff, Acting Administrator Administration for Community 
Living approved this document on July 13, 2022.

List of Subjects in 45 CFR Part 1330

    Disability, Grant programs, Research.

    Accordingly, ACL amends 45 CFR part 1330 as follows:

PART 1330--NATIONAL INSTITUTE FOR DISABILITY, INDEPENDENT LIVING, 
AND REHABILITATION RESEARCH

0
1. The authority citation for part 1330 continues to read as follows:

    Authority: 29 U.S.C. 709, 3343.


0
2. Amend Sec.  1330.23 by revising paragraph (b) to read as follows:


Sec.  1330.23   Evaluation process.

* * * * *
    (b) In considering selection criteria in Sec.  1330.24, the 
Director selects one or more of the factors listed in the criteria, but 
always considers the factors in Sec.  1330.24(n) regarding people with 
disabilities, and members of groups that have traditionally been 
underrepresented based on race, ethnicity, national origin, sex 
(including sexual orientation and gender identity), or age.
* * * * *

0
3. Amend Sec.  1330.24 by adding paragraphs (c)(5) and (d)(4) and 
revising paragraph (n) to read as follows:

[[Page 50004]]

Sec.  1330.24   Selection criteria.

* * * * *
    (c) * * *
    (5) The extent to which research activities use appropriate 
engineering knowledge and techniques to collect, analyze, or synthesize 
research data.
    (d) * * *
    (4) The extent to which development activities apply appropriate 
engineering knowledge and techniques to achieve development objectives.
* * * * *
    (n) Project staff. In determining the quality of the applicant's 
project staff, the Director considers one or more of the following 
factors:
    (1) The extent to which the applicant encourages applications for 
employment from people with disabilities, who may include but are not 
limited to people with disabilities who have the greatest support 
needs.
    (2) The extent to which the applicant encourages applications for 
employment from people who are members of other groups that have 
traditionally been underrepresented in research professions based on 
race, ethnicity, national origin, sex (including sexual orientation and 
gender identity), or age.
    (3) The extent to which the key personnel and other key staff have 
appropriate training and experience in disciplines required to conduct 
all proposed activities.
    (4) The extent to which the commitment of staff time is adequate to 
accomplish all the proposed activities of the project.
    (5) The extent to which the key personnel are knowledgeable about 
the methodology and literature of pertinent subject areas.
    (6) The extent to which the project staff includes outstanding 
scientists in the field.
    (7) The extent to which key personnel have up-to-date knowledge 
from research or effective practice in the subject area covered in the 
priority.
* * * * *

    Dated: August 9, 2022.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-17422 Filed 8-12-22; 8:45 am]
BILLING CODE 4154-01-P