[Federal Register Volume 91, Number 162 (Monday, August 24, 2026)]
[Proposed Rules]
[Pages 54666-54683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-17239]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 91, No. 162 / Monday, August 24, 2026 /
Proposed Rules
[[Page 54666]]
DEPARTMENT OF EDUCATION
2 CFR Parts 3474 and 3485
34 CFR Parts 75, 76, 77, and 79
RIN 1875-AA14
[Docket ID ED-2026-OPEPD-2542]
Education Department General Administrative Regulations
AGENCY: Office of Planning, Evaluation and Policy Development,
Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary of Education proposes to amend the Education
Department General Administrative Regulations (EDGAR) and other
provisions in 2 CFR parts 3474 and 3485 to update the regulations and
better align them with other U.S. Department of Education (Department)
regulations and procedures, and to include technical updates from the
Office of Management and Budget's Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards published in
the Federal Register on April 22, 2024. The Department intends to
finalize these regulations in late 2026.
DATES: We must receive your comments on or before September 23, 2026.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at Regulations.gov. See the SUPPLEMENTARY INFORMATION section
for more details.
FOR FURTHER INFORMATION CONTACT: Zachary Rogers, U.S. Department of
Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone:
(202) 245-6776. Email: [email protected].
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: We invite you to submit comments regarding
these proposed regulations. Comments must be submitted via the Federal
eRulemaking Portal at regulations.gov. A brief summary of the proposed
rule is also available on the Federal eRulemaking Portal. If you
require an accommodation or cannot otherwise submit your comments via
regulations.gov, please contact the program contact person listed under
FOR FURTHER INFORMATION CONTACT. The Department will not accept
comments by fax or by email, or comments submitted after the comment
period closes. To ensure that the Department does not receive duplicate
copies, please submit your comments only once.Additionally, please
include the Docket ID at the top of your comments.
To ensure that public comments have maximum effect in developing
the final regulations, the Department urges that each comment clearly
identify the specific section or sections of the regulations that the
comment addresses and that comments be in the same order as the
regulations. In finalizing these proposed regulations, the Department
may issue certain aspects of the final rule separately in order to
appropriately respond to comments submitted by the public.
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
``FAQ.'' Also included on Regulations.gov is a commenter checklist that
addresses how to submit effective comments.
In instances where individual submissions appear to be duplicates
or near duplicates of comments prepared as part of a writing campaign,
the Department may choose to post to Regulations.gov one representative
sample comment along with the total comment count for that campaign.
The Department will consider these comments along with all other
comments received. In instances where individual submissions are
bundled together (submitted as a single document or packaged together),
the Department will post all of the substantive comments included in
the submissions along with the total comment count for that document or
package to Regulations.gov.
Comments containing personal threats will not be posted to
Regulations.gov and may be referred to the appropriate authorities.
During and after the comment period, you may inspect public
comments about the proposed regulations by accessing Regulations.gov.
To inspect comments in person, please contact the person listed under
FOR FURTHER INFORMATION CONTACT.
Privacy Note: The Department's policy is to generally make all
comments received from members of the public available for public
viewing in their entirety on the Federal eRulemaking Portal at
Regulations.gov. Therefore, commenters should be careful to include in
their comments only information that they wish to make publicly
available.
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 document. If you want to schedule an
appointment for this type of accommodation or auxiliary aid, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Background
In this notice of proposed rulemaking, we propose to amend 2 CFR
parts 3474 and 3485 and parts 75, 76, 77, and 79 of title 34 of the
Code of Federal Regulations. These changes are detailed in the Summary
of Major Provisions of this Regulatory Action and the Significant
Proposed Regulations section of this document.
Summary of Major Provisions of this Regulatory Action: As discussed
in greater detail in the Significant Proposed Regulations section of
this document, the proposed regulations would:
Make technical updates to ensure consistency across parts
of EDGAR, including amending certain sections of its agency-specific
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards regulations in 2 CFR parts 3474 and
3485 by making technical updates to the cross-references cited in both
parts to reflect revisions to the Uniform Administrative
[[Page 54667]]
Requirements, Cost Principles, and Audit Requirements for Federal
Awards.
Promote efficiency and cost savings within the Department
and become more consistent with common practices among other Federal
agencies, with regard to the publishing of notices and priorities in
Sec. Sec. 75.100, 75.104, 75.105, 75.222, 75.224, 79.3, 79.6, and
79.8.
Clarify and streamline the selection criteria the
Secretary may use to make discretionary awards under Sec. 75.210.
Clarify procedural approaches, such as the making of
continuation awards under Sec. 75.253.
Ensure merit practices and high standards for all grants
under Sec. Sec. 75.500 and 76.500.
Align EDGAR with the evidence framework in the Secretary's
Supplemental Priorities and Definitions on Evidence-Based Literacy,
Education Choice, and Returning Education to the States, published in
the Federal Register September 9, 2025 (90 FR 43514), by updating the
definitions related to evidence in Part 77.
The applicable authority for this regulatory package is 20 U.S.C.
1221 through 1221-1; 20 U.S.C. 1221e-3; 20 U.S.C. 1228a(c); 20 U.S.C.
3402; and 20 U.S.C. 3474, unless otherwise noted.
Proposed Regulations
Part 75 Direct Grant Programs
SECTION 75.4 [RESERVED]
Current Regulation: Section 75.4 is currently reserved.
Proposed Regulation: We propose to add a new Sec. 75.4 that would
add a severability provision, to be included in the general subpart A,
which would make clear that, if any part of the proposed regulations in
Part 75 is held invalid by a court, the remainder would still be in
effect.
Reason: Each of the sections in Part 75 serves one or more related
but distinct purposes. To best serve these purposes, we would include
this administrative provision in the regulations to make clear that the
regulations are designed to operate independently of each other and to
convey the Department's intent that the potential invalidity of one
provision should not affect the remainder. Relatedly, we propose to
remove the separate severability provisions already specific to
Subparts A, E, and F.
SECTION 75.51 HOW TO PROVE NONPROFIT STATUS
Current Regulation: Section 75.51 provides information on how and
what an applicant may provide to prove their nonprofit status.
Proposed Regulation: We propose to amend the regulation to change
the ``may'' language around providing documentation to a ``must.''
Reasons: The use of ``may'' makes it difficult, if an applicant
does not provide documentation, for the Department to confirm nonprofit
status, including requiring a search of multiple sources to try and
confirm status.
SECTION 75.63 SEVERABILITY
Current Regulation: Section 75.63 includes language related to
severability specific to Subpart A of Part 75.
Proposed Regulation: We propose to remove and reserve Sec. 75.63.
Reasons: Section 75.63 discusses severability specific to Subpart A
of Part 75, but the proposed Sec. 75.4 would add language about
severability applicability to all of Part 75; therefore, severability
language for a specific subpart is unnecessary.
SECTION 75.100 PUBLICATION OF AN APPLICATION NOTICE; CONTENT OF THE
NOTICE
Current Regulation: Section 75.100 includes a regulation related to
the publication of an application notice and the content of the notice
announcing the opportunity to apply for a new grant.
Proposed Regulation: We propose to amend the regulation to
eliminate the requirement for the Secretary to publish application
notices in the Federal Register. The proposed regulation would result
in cost savings for the Department and taxpayers, be consistent with
the notice requirements for Federal agencies in the governmentwide
grants regulations in 2 CFR 200.204, align the Department's practices
with more common practices among other Federal agencies, and allow the
Department to streamline and simplify notices that are currently
constrained by the rules of publishing in the Federal Register, such as
formatting limitations, including the use of tables. Given that Federal
agencies are charged a fee to publish documents in the Federal
Register, this change would provide hundreds of thousands of dollars in
annual cost savings for taxpayers and the Department.\1\ For a detailed
breakdown on the cost savings analysis, please review the Regulatory
Impact Analysis section. Additionally, this proposed change would
simplify the process for making application notices available to the
public by removing time delays on public notification of funding
opportunities. Currently, applicants seeking grants through the
Department and other agencies must register and submit applications via
Grants.gov, where funding opportunities are already listed. By
eliminating the regulation to post notices in the Federal Register,
applicants would no longer need to monitor multiple sources for grant
information. Instead, they can rely on Grants.gov for all updates.
Grants.gov provides the ability for potential applicants to receive
email notification as new funding opportunities are posted. As ED
increasingly partners with other Federal agencies as part of its
``final mission'' to return education to the States, in line with
Executive Order 14242, this change will help align the Department's
funding notices with the practices of other agencies, for consistent
and improved government-wide simplification of notices that are not
limited by required formatting and publishing standards with the
Federal Register.
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\1\ For information on publishing in the Federal Register,
including information regarding the fees, see https://www.gpo.gov/how-to-work-with-us/agency/services-for-agencies/ofr-publishing-services.
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SECTION 75.104 ADDITIONAL APPLICATION PROVISIONS
Current Regulation: Section 75.104 concerns applicants' compliance
with application provisions.
Proposed Regulation: We propose to amend the regulation to
eliminate the requirement for the Secretary to publish maximum award
amounts for grant competitions in application notices in the Federal
Register. Instead, maximum award amounts would be included in the
application notices.
Reason: As noted above, this change would simplify the Department's
practices in alignment with other agencies.
SECTION 75.105 ANNUAL ABSOLUTE, COMPETITIVE PREFERENCE, AND
INVITATIONAL PRIORITIES
Current Regulation: Section 75.105(b) specifies that the Secretary
establishes priorities for the selection of applications in a
particular fiscal year by publishing such annual priorities in a notice
in the Federal Register.
Proposed Regulation: We propose to amend the regulation to
eliminate the requirement for the Secretary to publish annual
priorities for grant competitions in application notices in the Federal
Register. Instead, priorities would be included in the application
notices.
Reasons: As noted above, this change would simplify the
Department's practices in alignment with other agencies.
[[Page 54668]]
SECTION 75.210 GENERAL SELECTION CRITERIA
Current Regulation: Section 75.210 lists the selection criteria and
factors that the Department uses in the peer review process to score
applications for discretionary grants.
Proposed Regulation: We propose changes to paragraphs (a) through
(i) of Sec. 75.210.
Reasons: We propose making revisions throughout Sec. 75.210 in
paragraphs (a), (b), (c), (d), and (g) to consistently refer to grant
participants as the ``target population,'' which would ensure alignment
of factors throughout Sec. 75.210. Additional proposed changes to
these paragraphs would streamline the language of individual factors to
remove additional descriptive language to focus the intent.
In paragraph (a), we propose to include the extent to which a
problem is being addressed, in addition to the significance of the
problem. We propose to broaden the focus to employment and career
outcomes in paragraph (a)(2)(iii).
In paragraph (b) we propose to focus paragraph (b)(2)(ii) on the
problem to be addressed by the proposed project. In paragraph
(b)(2)(iii), we propose to focus on the challenges more broadly, as
well as the effective strategies to address said challenges. We propose
a new paragraph (b)(2)(xviii) related to the services of high-quality
personnel.
In paragraph (c), we propose edits to factors to add emphasis on
the role of families in communities and edits for clarity and removal
of potential redundancy in language within factors. In paragraph
(c)(2)(xvii) we propose edits to focus the priority on academic
standards for students. In paragraph (c)(2)(xxi) we propose to revise
the factor to clarify the selection of project participants, to align
with the merit language being proposed in Sec. 75.500. In paragraph
(c)(2)(xxiii) we propose the addition of implementation sites into the
consideration of the incorporation of the work beyond the project
period.
In paragraphs (d) and (e), we propose to revise paragraph (d)(2)
and (e)(2) and to consolidate and remove paragraphs (d)(3) and (e)(3)
to align the introduction of these criteria with the other selection
criteria in Sec. 75.210. In proposed redesignated paragraph (d)(2)(v),
we propose to include technical assistance, in addition to training and
professional development services. We also propose revisions to
proposed redesignated paragraph (d)(2)(ix) to align more closely with
language from the Secretary's Supplemental Priority and Definitions on
Career Pathways and Workforce Readiness published in the Federal
Register April 13, 2026 (91 FR 18780). We propose a new paragraph
(d)(2)(xiii) on the use of evidence-based practices in the preparation
of high-quality personnel.
In paragraph (e), we propose revisions and a removal of current
paragraph (e)(3)(iv) to focus the project personnel criterion on the
qualifications of the personnel; as such, we propose to redesignate
current paragraph (e)(3)(v) as paragraph (e)(2)(iv). We proposed to add
a new paragraph (e)(2)(vi) to align with the merit language being
proposed in Sec. 75.500.
In paragraph (f), we propose revisions to emphasize the role of the
applicant and contributions of partners in the project as well as a
consideration of experiences in the qualifications of personnel.
In paragraph (g), we propose streamlining of paragraph (g)(2)(iv)
to focus on the time commitment of the project personnel. Proposed
revisions to paragraph (g)(2)(v) align with other proposed revisions to
emphasize a focus on the family and community.
In paragraph (h), we propose revisions to factors to specify the
level of evidence for which an evaluation is designed to meet, rather
than a description of the evidence level without the naming of the
evidence level.
In paragraph (i), we propose a revision to paragraph (i)(1) to
streamline the paragraph to emphasize the applicant's strategy to
effectively scale the proposed project, without additional qualifiers,
like how paragraph (1) is structured in other selection criteria. We
propose a revision to paragraph (i)(2)(v) to streamline the factor to
focus on the project, which is already inclusive of the scale of that
project.
SECTION 75.220 PROCEDURES THE DEPARTMENT USES UNDER Sec. 75.219(a)
Current Regulation: Section 75.220(b)(2) references an employee of
the Office of the Finance and Operations (OFO) with responsibility for
grants policy to serve on a board to review an application under the
special circumstances of Sec. 75.219(a) (The objectives of the project
cannot be achieved unless the Secretary makes the grant before the date
grants can be made under the procedures in Sec. 75.217).
Proposed Regulation: We propose revising paragraph (b)(2) to remove
the reference to a specific office of the Department.
Reasons: Given staffing changes at the Department, this section
would be updated to reference the qualifications of the individual
instead of naming a specific office in the Department.
SECTION 75.222 PROCEDURES THE DEPARTMENT USES UNDER Sec. 75.219(c)
Current Regulation: Section 75.222 describes the procedures for
considering an unsolicited application, including the note accompanying
Sec. 75.222 references themailing of an unsolicited application and
the address.
Proposed Regulation: Proposed Sec. 75.222 would update the
procedures for submitting an unsolicited application.
Reasons: The Department moved away from paper applications and is
proposing to move away from physically mailed applications for
unsolicited applications.
SECTION 75.224 WHAT ARE THE PROCEDURES FOR USING A MULTIPLE TIER REVIEW
PROCESS TO EVALUATE APPLICATIONS?
Current Regulation: Section 75.224 outlines the procedures for when
a multiple tier review is used.
Proposed Regulation: Proposed Sec. 75.224 would remove reference
to the notice publishing in the Federal Register.
Reason: As noted above, this change would simplify the Department's
practices in alignment with other agencies.
SECTION 75.228 [DOES NOT EXIST]
Current Regulation: Section 75.228 currently does not exist.
Proposed Regulation: We propose to add a new Sec. 75.228 that
would allow the Secretary to provide competitive preference to
applicants who propose to charge lower indirect costs than their
negotiated rate.
Reason: The proposed revision would provide the Department with
greater flexibility to give competitive preference to applicants that
propose to charge lower indirect costs to help ensure that Federal
funds are directed, to the greatest extent possible, towards the core
activities and outcomes of programs.
SECTION 75.230 HOW THE DEPARTMENT MAKES A GRANT
Current Regulation: Section 75.230 outlines how the Secretary
selects an application, including the amount of the award.
Proposed Regulation: Proposed Sec. 75.230 would add a new
paragraph to clarify that approval of an application does not obligate
the Federal Government to provide additional funding for the award in
the future.
[[Page 54669]]
Reasons: The proposed new paragraph would reflect existing
Department practices.
SECTION 75.251 BUDGET PERIODS
Current Regulation: Section 75.251 outlines the process for multi-
year projects, including multiple budget periods and a data collection
period.
Proposed Regulation: We propose to correct a misspelling in
paragraph (b)(2) and add a new paragraph (d) to clarify that the
Secretary may consider any unspent or unobligated funds by a grantee in
making funds available for multi-year projects, including making
adjustments to awards based on an unspent balance.
Reason: The proposed new paragraph adds specificity to the
authority that underpins existing Department practices.
SECTION 75.252 [RESERVED]
Current Regulation: Section 75.252 is currently reserved.
Proposed Regulation: We propose to add a new Sec. 75.252 that
would clarify the process for frontloading grant funds of a multi-year
project.
Reason: The Department can frontload grant funds, but the addition
of Sec. 75.252 outlines how it may be done, as well as grantee
responsibilities.
SECTION 75.253 CONTINUATION OF A MULTIYEAR PROJECT AFTER THE FIRST
BUDGET PERIOD
Current Regulation: Section 75.253 describes the process and
requirements for making continuation determinations and setting the
amount of continuation awards.
Proposed Regulation: We propose revisions to Sec. 75.253 to
clarify the Secretary's authority to make continuation determinations
and set continuation award amounts by removing subsection (c), allowing
the Secretary to exercise the Secretary's discretion, as well as to
clarify the Secretary's existing authority and practice to consider all
pieces of relevant available information to inform a continuation
determination, including information from the grant application and
previous grantee activity. Proposed revisions also include the timing
of making a continuation award, the funding for a continuation award,
and a further clarification that the provisions of the General
Education Provisions Act do not apply to decisions by the Secretary to
reduce the amount of a continuation award or to not make a continuation
determination.
Reasons: We propose these revisions to Sec. 75.253 to clarify the
Secretary's authority to make award decisions, and to clarify the
existing practices and agency interpretation that allow the Secretary
to rely on additional information in continuation award determinations
under Sec. 75.253; our current practices will be codified in Sec.
75.253.
SECTION 75.500 CONSTITUTIONAL RIGHTS, FREEDOM OF INQUIRY, AND FEDERAL
STATUTES AND REGULATIONS ON NONDISCRIMINATION
Current Regulation: Section 75.500 outlines the various statutes
and regulations with which grantees must comply.
Proposed Regulation: We propose to add a new paragraph (f) that
would require grantees to ensure that hiring, admissions, promotions,
and compensation practices under the grant are based on merit and high
standards, without regard to race, color, religion, sex, national
origin, or proxies thereof unless an appropriate exception applies as a
religious organization or an organization engaged in government-ordered
remedial action; that the grantee's employment practices do not compel
statements of belief in support or opposition to any political views as
a condition of continued employment, promotion, admission, project
participation, or the delivery of a benefit previously promised or
entitled to the employee; and that, where applicable, the grantee has
policies protecting freedom of speech, inquiry, and press, association,
research as specified and required by Sec. 75.500(a)-(e).
Reasons: The Department believes that the discretionary grants it
administers will be most likely to achieve program objectives if
awarded to entities that will emphasize merit, ability, and high
standards in their hiring practices, as appropriate. In particular, the
Department is cognizant of the Congressional directive contained within
section 427 of the General Education Provisions Act that the Department
``promote educational excellence throughout the Nation'' by promoting
the ability of program beneficiaries ``to meet high standards.'' By
amending Sec. 75.500 to require all grantees to prioritize merit and
high standards throughout their funded project activities, the
Department seeks to reinforce its commitment to ensuring excellence as
a bedrock component of all Federal education programs.
SECTION 75.684 SEVERABILITY
Current Regulation: Section 75.684 includes language related to
severability specific to Subpart E of Part 75.
Proposed Regulation: We propose to remove and reserve Sec. 75.684.
Reasons: Section 75.684 discusses severability specific to Subpart
E of Part 75, but proposed Sec. 75.4 would add language about
severability applicability to all of Part 75; therefore, severability
language for a specific subpart is unnecessary.
SECTION 75.741 SEVERABILITY
Current Regulation: Section 75.741 includes language related to
severability specific to Subpart E of Part 75.
Proposed Regulation: We propose to remove and reserve Sec. 75.741.
Reasons: Section 75.741 discussed severability specific to Subpart
E of Part 75, but proposed Sec. 75.4 would add language about
severability applicability to all of Part 75; therefore, severability
language for a specific subpart is unnecessary.
SECTION 75.901 SUSPENSION AND TERMINATION
Current Regulation: Section 75.901 indicates that the Secretary may
use the Office of Administrative Law Judges to resolve disputes
concerning a variety of matters that are not subject to other
proceedings.
Proposed Regulation: We propose to revise Sec. 75.901 to provide
clear notice to all recipients of the Department's ability to terminate
discretionary awards for convenience in a manner consistent with law.
Other clarifying edits are proposed in paragraph (a) regarding the
other reasons for termination, including for noncompliance, by mutual
agreement, upon notification by the recipient or subrecipient, and
pursuant to additional terms and conditions included in the Federal
award.
Reasons: This proposed clarification is similar to the existing
authority at 2 CFR 200.340(a)(4) to terminate awards found to be
inconsistent with program goals or agency priorities. It would also be
consistent with the long-standing authority to terminate Federal
contracts for convenience under the Federal Acquisition Regulations at
48 CFR 49.502 and 52.249-2 and the developing caselaw, as affirmed by
recent opinions from the Supreme Court of the United States, that
grantee agreements are ultimately contractual in nature.\2\ The
proposed changes would ensure that the Department retain ongoing
programmatic discretion after an award is made, consistent with law, to
[[Page 54670]]
terminate a discretionary award for convenience.
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\2\ Department of Education v. California, 604 U.S. _ (2025)
(per curiam); National Institutes of Health v. American Public
Health Association, 606 U.S. _ (2025) (per curiam).
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Reasons: The proposed revisions are meant to provide additional
clarity and authority regarding reasons available to the Department for
terminating Federal awards, and to add new provisions regarding
temporary suspension generally consistent with parallel procedures for
procurement contracts under the Federal Acquisition Regulations. These
proposed revisions create greater alignment between Federal financial
assistance and the long-standing termination for convenience provision
applicable to Federal procurement contracts. The goals of these
proposed revisions include ensuring that Federal funds are not wasted,
projects remain aligned with Department priorities, and recipients
remain accountable for delivering projects consistent with public
purposes authorized by law.
Part 76 State-Administered Formula Grant Programs
SECTION 76.3 [DOES NOT EXIST]
Current Regulation: Section 76.3 currently does not exist.
Proposed Regulation: We propose to add a new Sec. 76.3, to Subpart
A--General, under the heading ``Regulations That Apply to State-
Administered Programs,'' to add a severability provision, to be
included in subpart A, which would make clear that, if any part of the
proposed regulations in Part 76 is held invalid by a court, the
remainder would still be in effect.
Reason: Each of the sections in Part 76 serves one or more
important, related but distinct purposes. To best serve these purposes,
we would include this administrative provision in the regulations to
make clear that the regulations are designed to operate independently
of each other and to convey the Department's intent that the potential
invalidity of one provision should not affect the remainder. Relatedly,
we propose to remove the separate severability provisions specific to
Subparts A and G.
SECTION 76.53 SEVERABILITY
Current Regulation: Section 76.53 includes language related to
severability specific to Subpart A of Part 76.
Proposed Regulation: We propose to remove and reserve Sec. 76.53.
Reasons: Section 76.53 discusses severability specific to Subpart A
of Part 76, but proposed Sec. 76.3 would add language about
severability applicability to all of Part 76; therefore, severability
language for a specific subpart is unnecessary.
SECTION 76.500 CONSTITUTIONAL RIGHTS, FREEDOM OF INQUIRY, AND FEDERAL
STATUTES AND REGULATIONS ON NONDISCRIMINATION
Current Regulation: Section 76.500 outlines the various statutes
and regulations with which grantees must comply.
Proposed Regulation: We propose to add a new paragraph (f) that
would require grantees to ensure merit practices as part of a grantee's
General Administrative Responsibilities.
Reasons: The Department believes that the grants it administers
will be most likely to achieve program objectives if awarded to
entities that emphasize merit, ability, and rigor in their hiring
practices. In particular, the Department is cognizant of the
Congressional directive contained within section 427 of the General
Education Provisions Act that the Department ``promote educational
excellence throughout the Nation'' by promoting the ability of program
beneficiaries ``to meet high standards.'' By amending Sec. 76.500 to
require all grantees to prioritize merit and high standards throughout
their funded project activities, the Department seeks to reinforce its
commitment to ensuring excellence as a bedrock component of all Federal
education programs.
SECTION 76.684 SEVERABILITY
Current Regulation: Section 76.684 includes language related to
severability specific to Subpart G of Part 75.
Proposed Regulation: We propose to remove and reserve Sec. 76.684.
Reasons: Section 76.684 discusses severability specific to Subpart
G of Part 76, but proposed Sec. 76.3 would add language about
severability applicability to all of Part 76; therefore, severability
language for a specific subpart is unnecessary.
SECTION 76.700 COMPLIANCE WITH THE U.S. CONSTITUTION, STATUTES,
REGULATIONS, STATED INSTITUTIONAL POLICIES, AND APPLICATIONS
Current Regulation: Section 76.700 states that grantees shall
comply with and use Federal funds in accordance with applicable
statutes, regulations, and approved applications.
Proposed Regulation: We propose to revise Sec. 76.700 to include
Executive orders in addition to statutes, regulations, and approved
applications.
Reasons: We propose this revision to align to Sec. 75.700, which
includes the requirement for grantees of direct grant programs to
comply with Executive orders. It was an oversight that this proposed
change was not included in the updates to EDGAR published in the
Federal Register on August 29, 2024 (89 FR 70300).
SECTION 76.784 SEVERABILITY
Current Regulation: Section 76.784 includes language related to
severability specific to Subpart G of Part 75.
Proposed Regulation: We propose to remove and reserve Sec. 76.784.
Reasons: Section 76.784 discusses severability specific to Subpart
G of Part 76, but proposed Sec. 76.3 would add language about
severability applicability to all of Part 76; therefore, severability
language for a specific subpart is unnecessary.
Part 77 Definitions That Apply to Department Regulations
SECTION 77.1 DEFINITIONS THAT APPLY TO ALL DEPARTMENT PROGRAMS
Current Regulation: Section 77.1 includes a number of definitions,
including certain definitions related to evidence. These definitions
support the various sections in EDGAR and are used by the Department in
notices where relevant to the specific grant competition.
Proposed Regulation: We propose to revise the definitions of
``experimental study,'' ``moderate evidence,'' ``national level,''
``promising evidence,'' ``quasi-experimental design study,'' ``regional
level,'' and ``strong evidence'' and to add new definitions of
``evidence framework'' and ``frontloading.''
Reasons: The proposed updates to the definitions, including the
definitions for the different tiers of evidence, align with the
definitions in the Elementary and Secondary Education Act. The proposed
addition of the definition for ``evidence framework'' aligns with the
definition in the Secretary's Supplemental Priorities and Definitions
on Evidence-Based Literacy, Education Choice, and Returning Education
to the States published in the Federal Register on September 9, 2025
(90 FR 43514), and aligns the other definitions to support the proposed
``evidence framework'' definition. The proposed definition of
``frontloading'' is to clarify a term used in the proposed Sec.
75.252. The proposed revisions to the definitions of ``national level''
and ``regional level'' would remove the example of the groups to
streamline the definitions because the Department does not think the
examples are necessary in defining the level of scale.
[[Page 54671]]
Evidence-Related Definitions
We propose revising the evidence definitions to include a new
definition for ``evidence framework,'' and revising the definitions of
``experimental study,'' ``moderate evidence,'' ``promising evidence,''
``quasi-experimental design study,'' and ``strong evidence.''
The proposed modifications to the definitions of ``experimental
study,'' ``moderate evidence,'' ``promising evidence,'' ``quasi-
experimental design study,'' and ``strong evidence'' align the
definitions with 20 U.S.C. 7801(21)(A)(i). The proposed definitions
retain the reference to rigorous methodologies and remove references to
the What Works Clearinghouse within the definitions for each tier of
evidence, to allow for additional approaches that the Department may
select for applicants to use to demonstrate that they have met rigorous
evidence standards. The new proposed definition for ``evidence
framework'' describes those additional approaches and includes the
review aligned with What Works Clearinghouse as one approach that the
Department may use to establish that applicants have met rigorous
evidence standards. The Department may also consider other methods to
verify the rigor of evidence as described in the definition of
``evidence framework.''
Part 79 Intergovernmental Review of Department of Education Programs
and Activities
SECTION 79.3 WHAT PROGRAMS AND ACTIVITIES OF THE DEPARTMENT ARE SUBJECT
TO THESE REGULATIONS?
Current Regulation: Section 79.3 discusses programs and activities
subject to intergovernmental review.
Proposed Regulation: We propose to amend the regulation to
eliminate the requirement for the Secretary to publish the list of
grant programs subject to intergovernmental review in application
notices in the Federal Register. Instead, intergovernmental review
applicability would be included in the application notices.
Reasons: As noted above, this change would simplify the
Department's practices in alignment with other agencies.
SECTION 79.6 WHAT PROCEDURES APPLY TO THE SELECTION OF PROGRAMS AND
ACTIVITIES UNDER THESE REGULATIONS?
Current Regulation: Section 79.6 outlines how a State may select a
program for intergovernmental review.
Proposed Regulation: We propose to amend the regulation to
eliminate the requirement for the program or activity to be published
in the Federal Register. Instead, the program or activity would be
included in application notices.
Reasons: As noted above, this change would simplify the
Department's practices in alignment with other agencies.
SECTION 79.8 HOW DOES THE SECRETARY PROVIDE STATES AN OPPORTUNITY TO
COMMENT ON PROPOSED FEDERAL FINANCIAL ASSISTANCE?
Current Regulation: Section 79.8 outlines how the Secretary gives
States the opportunity to comment in the intergovernmental review
process, including the deadline date for comments.
Proposed Regulation: We propose to amend the regulation to remove
the reference to publishing in the Federal Register. Instead, the
deadline date for comments would be included in application notices.
Reasons: As noted above, this change would simplify the
Department's practices in alignment with other agencies.
Executive Orders 12866, 13563, and 14192
Regulatory Impact Analysis
This proposed regulatory action is a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
This regulatory action is expected to be considered an ``Executive
Order 14192 deregulatory action.''
We have also reviewed this proposed regulatory action under
Executive Order 13563. We are only issuing the proposed regulations on
a reasoned determination that their benefits would justify their
minimal costs. The Department believes that this regulatory action is
consistent with the principles in Executive Order 13563.
We have also 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 these Executive Orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action.
1. Need for Regulatory Action
The Department has identified a need for regulatory action to
minimize administrative burden to the public by reducing the number of
sources they need to access to view a notice, reduce costs for
taxpayers and the Department, and promote efficiency within the
Department. See further explanation above in the Reasons section.
2. Discussion of Costs, Benefits, and Transfers
2.A. Monetized Benefits and Transfers
The Department analyzed the costs and benefits of complying with
these regulations. Most of the changes proposed in this notice of
proposed rulemaking are technical in nature and are unlikely to affect
the administration of programs or allocation of benefits in any
substantial way. Given the large number of edits proposed herein, we
discuss each provision and its likely costs and benefits in turn below.
We do not discuss edits proposed for which we are updating citations or
cross-references and making other technical edits.
Proposed changes to Sec. 75.4, which would add severability
language for all of Part 75 and remove the separate severability
language in Sec. Sec. 75.63, 75.684, and 75.741, are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 75.51, which would more clearly specify
what an applicant must provide to prove nonprofit status, are unlikely
to generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. Sec. 75.100, 75.104, 75.105, 75.222,
75.224, 79.3, 79.6, and 79.8 would result in a reduction of
administrative burden to the public as well as cost savings to the
Department.
Currently, the Department publishes grant application information
first to the Federal Register and subsequently to Grants.gov and the
Department program websites. The proposed changes to Sec. Sec. 75.100.
75.104, 75.105, 75.222, 75.224, 79.3, 79.6, and 79.8 would streamline
this process and reduce administrative burden to potential grant
applicants by consolidating grant application notices in fewer
locations. Based on the average number of notices inviting application
documents published from FY 2021 through FY 2025, the Department
estimates that, on average, 84 notices inviting applications are
published in the Federal Register each year. We note that the
President's FY 2027 Budget Request for the Department of Education \3\
proposed
[[Page 54672]]
several program consolidations and eliminations for programs currently
administered by the Department. These proposed consolidations and
eliminations are not reflected in this Regulatory Impact Analysis. As
the Department winds down operations, depending on funding decisions by
Congress, estimated outyear benefits may decrease in the future.
---------------------------------------------------------------------------
\3\ https://www.ed.gov/about/ed-overview/annual-performance-reports/budget/budget-requests/fy-2027-department-of-education-justifications-of-appropriation-estimates-congress.
---------------------------------------------------------------------------
The proposed changes to Sec. Sec. 75.100, 75.104, 75.105, 75.222,
75.224, 79.3, 79.6, and 79.8 would result in reductions to
administrative and legal staff hours typically spent on preparing
notices inviting applications for the Federal Register. The submission
of notices inviting applications to the Federal Register creates
immense administrative burdens related to formatting and transmission
requirements; every grant competition where a notice inviting
applications is no longer submitted to the Federal Register would
significantly reduce this burden. Additionally, posting notices
inviting applications to the Federal Register creates time delays on
public notification of funding opportunities. For each grant
competition where a notice inviting applications is no longer submitted
to the Federal Register, we assume a program officer at the GS-13/5
level earning a loaded wage rate of $89.49 per hour,\4\ on average,
would spend 10 fewer hours per competition ensuring that the notice
inviting applications is prepared according to the specific formatting
requirements for the Federal Register. Similarly, we also assume that
two Department attorneys at the GS-14/5 level (loaded wage rate of
$105.75 \4\ per hour) would spend approximately 2.5 fewer hours each
ensuring that each notice inviting applications conforms to
Departmental regulatory style guides, based on the Office of the
Federal Register requirements. We assume that a senior Department
attorney at the GS-15/5 level (loaded wage rate of $127.86 \4\) would
no longer spend 10 hours annually reviewing and updating Departmental
regulatory style guides specific to notices inviting applications. We
also estimate that one management and program analyst at the GS-13/5
level would no longer spend 5 hours per notice inviting applications
transmitting the notice to the Federal Register in the appropriate
Government Printing Office system. In sum, we estimate that this
provision would generate cost savings of approximately $158,451 for the
Department per year over the next ten years.
---------------------------------------------------------------------------
\4\ 2026 OPM GS Schedule, Washington DC locality, with 35%
fringe rate.
---------------------------------------------------------------------------
In addition, as required by law, the Department pays the Government
Printing Office for each notice inviting applications published in the
Federal Register. The cost of publication in the Federal Register is
approximately $453 per published Federal Register page.\5\ From FY 2021
through FY 2025, the Department published an estimated average of 84
notices inviting applications per year in the Federal Register. Each
notice inviting applications was, on average, 6.34 pages in length. The
Department estimates an annual cost of $241,250 per year to publish
notices inviting applications in the Federal Register over the next ten
years.
---------------------------------------------------------------------------
\5\ https://www.gpo.gov/how-to-work-with-us/agency/services-for-agencies/ofr-publishing-services.
---------------------------------------------------------------------------
In total, the Department estimates net present value benefits of
$3,409,531 and $2,807,333 over 10 years at a 3 percent and 7 percent
discount rate, respectively. This value is equivalent to an annualized
benefit of $399,701 per year over 10 years. The Department requests
comments on the analysis and estimates contained in this Regulatory
Impact Analysis.
Proposed changes to Sec. 75.210, which would streamline word
choice are unlikely to generate any quantifiable costs and may benefit
the Department and the general public by improving the clarity of the
regulations.
Proposed changes to Sec. 75.220, which would clarify procedures
for special circumstances for an application, are unlikely to generate
any quantifiable costs and may benefit the Department and the general
public by improving the clarity of the regulations.
Proposed changes to Sec. 75.222, which would update the submission
process for unsolicited applications, are unlikely to generate any
quantifiable costs and may benefit the Department and the general
public by improving the clarity of the regulations.
Proposed changes to Sec. 75.228, which would allow the Secretary
to give competitive preference to applicants who charge lower indirect
costs than their negotiated rate, would provide the Department with
greater flexibility to ensure that Federal funds are directed toward
the activities and outcomes most central to a program's purpose. This
authority would enable the Department to give competitive preference in
competitions for applicants who charge lower indirect costs, based on
the unique objectives and design of individual grant programs,
particularly where program goals are best advanced by maximizing
resources available for direct services, evidence-based interventions,
capacity-building activities, or other programmatic investments. By
establishing the competitive preference in the application notice,
applicants would have clear expectations before applying, promoting
consistency, fairness, and informed budgeting across all competitors.
This flexibility would also strengthen the Department's stewardship of
Federal funds by allowing it to align funding structures with program
objectives and ensure that available resources are used as effectively
as possible to achieve intended outcomes.
As a result of changes to Sec. 75.228 to allow the Secretary to
give competitive preference for applicants who charge lower indirect
costs, the Department anticipates, within impacted programs, a transfer
of grant project fund allocation from the indirect cost budget category
to the direct cost budget category. We assume the proposed rule, when
implemented by the Secretary, will increase the scope and impact of
grant services by shifting funds from general administrative purposes
towards core project activities directly related to the goals and
objective of the grant award. While we are not able to monetize the
scope of the potential benefit, we assume that this transfer will
significantly expand the scope and impact of affected programs and
therefore significantly improve educational outcomes.
We estimate, for the purposes of establishing a baseline, that the
average indirect cost rate for non-restricted rate grant program is
25%.\6\ For all discretionary grantees the average award size is
$750,000.\7\ We assume that only $600,000 of each average award is
chargeable to the indirect cost rate. Therefore, we establish an
average baseline of $150,000 allocated to indirect costs and $450,000
allocated to direct costs for each of the sampled awards.
---------------------------------------------------------------------------
\6\ Based on Department grant system reports for 172
discretionary grant awards made in 2025 or 2026.
\7\ Average award made in FY 2025 across 7,011 discretionary
awards.
---------------------------------------------------------------------------
We are unable to predict to what extent the Secretary will exercise
the authority provided under this proposed rule in future years.
Therefore, we conducted a sensitivity analysis of multiple scenarios
that evaluate the potential impact based on the number of new
applicants impacted and to what extent the indirect cost rate is
lowered
[[Page 54673]]
below the baseline for a new award grant competition.
Table 1--Indirect Cost Rate Change Sensitivity Analysis
----------------------------------------------------------------------------------------------------------------
Indirect cost rate (%) Indirect cost Direct cost Total transfer
----------------------------------------------------------------------------------------------------------------
25 (Baseline)................................................... $150,000 $450,000 ..............
20.............................................................. 120,000 480,000 $30,000
15.............................................................. 90,000 510,000 60,000
8............................................................... 48,000 552,000 102,000
----------------------------------------------------------------------------------------------------------------
For the purposes of this analysis, the Department estimates that if
the indirect cost rate for each of these sampled awards were, on
average, lowered to 15%, the resulting allocations would be $90,000 to
indirect costs and $510,000 for direct costs. This would be a transfer
of $60,000 from indirect costs to direct costs per impacted grant
award.
Table 2--New Grant Recipient Impact Sensitivity Analysis
----------------------------------------------------------------------------------------------------------------
New grantees 20% 15% 8%
----------------------------------------------------------------------------------------------------------------
250............................................................. $7,500,000 $15,000,000 $25,500,000
750............................................................. 22,500,000 45,000,000 76,500,000
1500............................................................ 45,000,000 90,000,000 153,000,000
----------------------------------------------------------------------------------------------------------------
We assume that in each of the next 10 years, 750 new grant
recipients would apply to programs where the Secretary gives
competitive preference for applicants who charge lower indirect costs.
Therefore, we estimate an annual transfer of $45,000,000 from indirect
costs to direct costs over each of the next 10 years. To the extent
that our sample underestimates the average indirect cost rate, the
total amount transferred to the direct cost category would increase.
The Department requests comments on the analysis and estimates
contained in this Regulatory Impact Analysis.
Proposed changes to Sec. 75.230, which would clarify future
commitments of the Federal Government for an award, are unlikely to
generate any quantifiable costs and may benefit the Department and the
general public by improving the clarity of the regulations.
Proposed changes to Sec. 75.251, which would clarify the treatment
of unobligated balances on a grant, are unlikely to generate
quantifiable costs and may benefit the Department and the general
public by improving the clarity of the regulations.
Proposed changes to Sec. 75.252, which would clarify the use of
frontloading, are unlikely to generate any quantifiable costs and may
benefit the Department and general public by improving the clarity and
transparency of the Department's authority to frontload grant funds.
Proposed changes to Sec. 75.253, which clarify the Secretary's
role in making continuation determinations and the timeline for
continuations, are unlikely to generate quantifiable costs and may
benefit the Department and the general public by improving the clarity
and transparency of regulations.
Proposed changes to Sec. 75.500, which would require assurances
from grantees, are unlikely to generate any quantifiable costs and may
benefit the Department and the general public by improving the clarity
of the regulations.
Proposed changes to Sec. 75.901, which would clarify how a grant
may be terminated, including termination disputes, are unlikely to
generate any quantifiable costs and may benefit the Department and the
general public by improving the clarity of the regulations.
Proposed changes to Sec. 76.3, which would add severability
language for all of Part 76 and remove the separate severability
language in Sec. Sec. 76.43, 76.684, and 76.784, are unlikely to
generate any quantifiable costs and may benefit the Department and
general public by improving the clarity of the regulations.
Proposed changes to Sec. 76.700, which would add Executive orders
to the list of authorities with which grantees must comply, are
unlikely to generate any quantifiable costs and may benefit the
Department and the general public by improving the clarity of the
regulations.
Proposed changes to Sec. 77.1(c), which will apply to any
applicant applying to a program that incorporates any of the
definitions identified in this notice, would result in cost savings for
both applicants and the Department by reducing regulatory burden. As
discussed previously in this notice, the proposed changes would update
existing definitions and add new definitions, both of which are
unlikely to generate any quantifiable costs and would benefit the
public and the Department by improving the clarity and reducing the
complexity of the regulations. In total, the Department estimates net
present value benefits of $1,589,716 and $1,308,937 over 10 years at a
3 percent and 7 percent discount rate, respectively. This value is
equivalent to an annualized benefit of $186,363 over 10 years. The
regulations are expected to result in estimated annual cost transfers
of $45,038,500 over 10 years following publication of these proposed
regulations.
As a result of changes to Sec. 77.1(c) to revise evidence
definitions, the Department anticipates a reduced burden for applicants
to competitive grant competitions. We assume the revised definitions
will reduce the complexity of evidence definitions and ultimately
reduce the number of hours required to prepare a grant application. The
Department estimates 2 fewer hours from a grant writer (education
administrator, loaded wage rate of $107.60/hour \8\) for each of the
estimated 866 \9\ applicants applying to a competitive grant
competition that requires at least a promising evidence level. In
total, the Department estimates reviewing and revising these procedures
will reduce costs by approximately $186,363 annually over the next 10
years.
---------------------------------------------------------------------------
\8\ National OEWS, May 2025 SOC Code 11-9030, loaded wage rate
of 100%.
\9\ Based on fiscal year 2024 applications received under
programs incorporating evidence.
---------------------------------------------------------------------------
Due to the addition of a new definition for ``evidence framework,''
in
[[Page 54674]]
Sec. 77.1(c), the Department anticipates a transfer of burden. Under
the new ``evidence framework'' definition, the burden of evidence
reviews could, at the discretion of the Department, shift from
Department-funded evidence reviewers to reviewers funded by third
parties (e.g., philanthropy, State educational agencies).
The specific cost transfer would be dependent on how the Department
utilizes the additional flexibility provided under the new definition
of ``evidence framework.'' For the purposes of this analysis, the
Department estimates, based on administrative data and experience, that
the cost of an evidence review is $3,500 per application. We estimate
that half (11) of the estimated 22 \10\ applicants who apply to a
competitive grant competition requiring at least a moderate evidence
level would rely upon an evidence review not funded by the Department
or a study that is already in the What Works Clearinghouse. In total,
the Department estimates a cost transfer of $38,500 from the Department
to third parties as a result of this new definition. The Department
anticipates that taxpayers could realize net savings as a result of
this proposed definition.
---------------------------------------------------------------------------
\10\ Based on fiscal year 2024 applications received under
programs incorporating evidence. Assumes only a third (22 of 53) of
applications received require review by Institute of Education
Sciences peer reviewers.
---------------------------------------------------------------------------
2.B. Non-Monetized Benefits
The Department believes the proposed changes to Sec. Sec. 75.100,
75.104, 75.105, 75.222, 75.224, 79.3, 79.6, and 79.8 would yield other
real and significant benefits that are not as straightforwardly
monetized. The proposed changes would improve the quality of grant
applications by ensuring that applicants have a single, definitive
source of grant competition information and requirements. The proposed
changes would ultimately improve project outcomes and yield significant
economic benefit to the public. For example, the Department believes
the proposed changes will be particularly beneficial to applicants that
have never received a Federal grant award.
Table 4.1--Net Annual Benefits, Years 1 Through 10
------------------------------------------------------------------------
Net annual
Year benefits
------------------------------------------------------------------------
Year 1.................................................. $586,064
Year 2.................................................. 586,064
Year 3.................................................. 586,064
Year 4.................................................. 586,064
Year 5.................................................. 586,064
Year 6.................................................. 586,064
Year 7.................................................. 586,064
Year 8.................................................. 586,064
Year 9.................................................. 586,064
Year 10................................................. 586,064
Total Net Present Value (NPV), 3 percent.............. 4,999,247
Total Net Present Value (NPV), 3 percent.............. 4,116,270
Annualized, 7 percent................................... 586,064
Annualized, 7 percent................................... 586,064
------------------------------------------------------------------------
Regulatory Flexibility Act Certification
This section considers the effects that the final regulations may
have on small entities in the educational sector as required by the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.The Secretary certifies
that this proposed regulatory action would not have a substantial
economic impact on a substantial number of small entities.
The U.S. Small Business Administration Size Standards define
proprietary institutions as small businesses if they are independently
owned and operated, are not dominant in their field of operation, and
have total annual revenue below $7,000,000. Nonprofit institutions are
defined as small entities if they are independently owned and operated
and not dominant in their field of operation. Public institutions are
defined as small organizations if they are operated by a government
overseeing a population below 50,000.
Paperwork Reduction Act
The proposed regulatory action does not contain any information
collection requirements.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
List of Subjects
2 CFR 3474
Accounting, Administrative practice and procedure, Adult education,
Aged, Agriculture, American Samoa, Bilingual education, Blind, Business
and Industry, Civil rights, Colleges and universities, Communications,
Community development, Community facilities, Copyright, Credit,
Cultural exchange programs, Education, Education of disadvantaged,
Education of individuals with disabilities, Educational facilities,
Educational research, Educational study programs, Electric power,
Electric power rates, Electric utilities, Elementary and secondary
education, Energy conservation, Equal educational opportunity,
Federally affected areas, Government contracts, Grant programs, Grant
administration, Guam, Home improvement, Homeless, Hospitals, Housing,
Human research subjects, Indians, Indians--education, Infants and
children, Insurance, Intergovernmental relations, International
organizations, Inventions and patents, Loan programs, Manpower training
programs, Migrant labor, Mortgage insurance, Nonprofit organizations,
Northern Mariana Islands, Pacific Islands Trust Territory, Privacy,
Renewable energy, Reporting and recordkeeping requirements, Rural
areas, Scholarships and fellowships, School construction, Schools,
Science and technology, Securities, Small business, State and local
governments, Student aid, Teachers, Telecommunications, Telephone,
Urban areas, Veterans, Virgin Islands, Vocational education, Vocational
rehabilitation, Waste treatment and disposal, Water pollution control,
Water resources, Water supply, Watersheds, Women.
2 CFR Part 3485
Administrative practice and procedure, Grant programs, Reporting
and recordkeeping requirements.
34 CFR Part 75
Accounting, Copyright, Education, Grant programs--education, Guam,
Indemnity payments, Inventions and patents, Private schools, Reporting
and recordkeeping requirements, Youth organizations.
34 CFR Part 76
Accounting, Administrative practice and procedure, American Samoa,
Education, Grant programs--education, Guam, Northern Mariana Islands,
Pacific Islands Trust Territory, Prisons, Private schools, Reporting
and recordkeeping requirements, Virgin Islands, Youth organizations.
[[Page 54675]]
34 CFR Part 77
Education, Grant programs--education.
Linda McMahon,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend parts 3474, and 3485 of title 2 of the Code of Federal
Regulations, and parts 75, 76, and 77 of title 34 of the Code of
Federal Regulations as follows:
PART 3474--UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES,
AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS
0
1. The authority citation for part 3474 continues to read as follows:
Authority: 20 U.S.C. 1221e-3, 3474; 42 U.S.C. 2000bb et seq.;
E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258; E.O. 13559, 75
FR 71319, 3 CFR, 2010 Comp., p. 273; E.O. 13831, 83 FR 20715, 3 CFR,
2018 Comp., p. 806; and 2 CFR part 200, unless otherwise noted.
0
2. Amend Sec. 3474.1 by revising paragraph (a) to read as follows:
Sec. 3474.1 Adoption of 2 CFR Part 200.
(a) The Department of Education adopts the Office of Management and
Budget (OMB) Guidance in 2 CFR part 200, except for 2 CFR 200.102(a)
and 2 CFR 200.208(a). Thus, this part gives regulatory effect to the
OMB guidance and supplements the guidance as needed for the Department.
0
3. Amend Sec. 3474.10 to read as follows:
Sec. 3474.10 Clarification regarding 2 CFR 200.208.
The Secretary or a pass-through entity may, in appropriate
circumstances, designate the specific conditions established under 2
CFR 200.208 as ``high-risk conditions'' and designate a non-Federal
entity subject to specific conditions established under Sec. 200.208
as ``high-risk''.
(Authority: 20 U.S.C. 1221e-3, 3474, and 2 CFR part 200)
PART 3485--NONPROCUREMENT DEBARMENT AND SUSPENSION
0
4. The authority citation for part 3485 continues to read as follows:
Authority: E.O. 12549 (3 CFR 1986 Comp., p. 189); E.O. 12689 (3
CFR 1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327
(31 U.S.C. 6101 note); 20 U.S.C. 1082, 1094, 1221e-3, and 3474,
unless otherwise noted.
0
5. Amend Sec. 3485.220 by revising paragraphs (b)(1) and (2) to read
as follows:
Sec. 3485.220 Are any procurement contracts included as covered
transactions?
(a) * * *
(b) * * *
(1) The contract is awarded by a participant in a nonprocurement
transaction that is covered under 2 CFR 180.210, and the contract
amount is expected to equal or exceed $25,000.
(2) The contract requires the consent of an official of a Federal
agency. In that case, the contract is always a covered transaction,
regardless of the amount or who awarded it. For example, it could be a
subcontract awarded by a contractor at a tier below a nonprocurement
transaction, as shown in the Appendix to Part 3485--Covered
Transactions.
* * * * *
PART 75--DIRECT GRANT PROGRAMS
0
6. Revise the authority citation for part 75 to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
Section 75.263 also issued under 2 CFR 200.308(g)(1).
Section 75.617 also issued under 31 U.S.C. 3504, 3505.
Section 75.500 also issued under 20 U.S.C. 1228a(c).
Section 75.740 also issued under 20 U.S.C. 1232g and 1232h.
0
7. Add Sec. 75.4 after Sec. 75.2 to read as follows:
If any provision of this part or its application to any person,
act, or practice is held invalid, the remainder of the part or the
application of its provisions to any person, act, or practice shall not
be affected thereby.
0
8. Amend Sec. 75.51 in paragraph (b) by removing ``may'' and replacing
with ``must''.
0
9. Amend Sec. 75.100 in paragraph (a) by removing ``in the Federal
Register''.
0
10. Amend Sec. 75.104 in paragraph (b) by removing ``published in the
Federal Register''.
0
11. Amend Sec. 75.105 by removing in paragraph (b)(1) ``in a notice in
the Federal Register, usually''.
0
12. Amend Sec. 75.118 by revising the cross reference at the end of
the section and designating as paragraph (c) to read as follows:
Sec. 75.118 Requirements for a continuation award.
* * * * *
(c) Cross Reference: See 2 CFR 200.328, Financial reporting, and
200.329, Monitoring and reporting program performance; and 34 CFR
75.117, Information needed for a multi-year project, 75.250 through
75.253, Approval of multi-year projects, 75.590, Evaluation by the
grantee, and 75.720, Financial and performance reports.
0
13. Revise Sec. 75.210 to read as follows:
Sec. 75.210 General selection criteria.
In determining the selection criteria to evaluate applications
submitted in a 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. The Secretary may define a
selection criterion by selecting one or more specific factors within a
criterion or assigning factors from one criterion to another criterion.
(a) Need for the project.
(1) The Secretary considers the need for the proposed project.
(2) In determining the need for the proposed project, the Secretary
considers one or more of the following factors:
(i) The data presented (including a comparison to local, State,
regional, national, or international data) that demonstrates the issue,
challenge, or opportunity to be addressed by the proposed project.
(ii) The extent to which the proposed project demonstrates the
magnitude of the need for the services to be provided or the activities
to be carried out by the proposed project.
(iii) The extent to which the proposed project will provide
support, resources, or services; or otherwise address the needs of the
target population and close gaps in educational opportunity or
employment and career outcomes.
(iv) The extent to which the proposed project will focus on
improving outcomes or otherwise addressing the needs of the target
population.
(v) The extent to which the specific nature and magnitude of gaps
or challenges are identified, and the extent to which these gaps or
challenges will be addressed by the services, supports, infrastructure,
or opportunities described in the proposed project.
(vi) The extent to which the proposed project will prepare
individuals for employment in fields and careers in which there are
demonstrated shortages.
(b) Significance.
(1) The Secretary considers the significance of the proposed
project.
(2) In determining the significance of the proposed project, the
Secretary considers one or more of the following factors:
(i) The extent to which the proposed project is relevant at the
national level.
(ii) The significance of the problem or issue to be addressed by
the proposed project, and the extent to which the proposed project
would address the problem or issue.
[[Page 54676]]
(iii) The extent to which findings from the proposed project's
implementation will contribute new knowledge to the field by increasing
understanding of challenges (including the underlying or related
challenges), effective strategies for addressing challenges, and
effective implementation of effective strategies.
(iv) The potential contribution of the proposed project to improve
the provision of rehabilitative services, increase the number or
quality of rehabilitation counselors, or develop and implement
effective strategies for providing vocational rehabilitation services
to individuals with disabilities.
(v) The likelihood that the proposed project will result in
systemic change that supports continuous, sustainable, and measurable
improvement.
(vi) The potential contribution of the proposed project to the
development and advancement of theory, knowledge, and practices in the
field of study, including the extent to which the contributions may be
used by other appropriate agencies, organizations, institutions, or
entities.
(vii) The potential for generalizing from the findings or results
of the proposed project.
(viii) The extent to which the proposed project is likely to build
local, State, regional, or national capacity to provide, improve,
sustain, or expand training or services that address the needs of the
target population.
(ix) The extent to which the proposed project involves the
development or demonstration of innovative and effective strategies
that build on, or are alternatives to, existing strategies.
(x) The extent to which the proposed project is innovative and
likely to be more effective compared to other efforts to address a
similar problem.
(xi) The likely utility of the resources (such as materials,
processes, techniques, or data infrastructure) that will result from
the proposed project, including the potential for effective use in a
variety of conditions, populations, or settings.
(xii) The extent to which the resources, tools, and implementation
lessons of the proposed project will be disseminated to the target
population and local community in ways that will enable them and others
(including practitioners, researchers, education leaders, and partners)
to implement similar strategies.
(xiii) The potential effective replicability of the proposed
project or strategies, including, as appropriate, the potential for
implementation by a variety of populations or settings.
(xiv) The importance or magnitude of the results or outcomes likely
to be attained by the proposed project, especially contributions toward
improving teaching practice and student learning and achievement.
(xv) The importance or magnitude of the results or outcomes likely
to be attained by the proposed project, especially improvements in
employment, independent living services, or both, as appropriate.
(xvi) The importance or magnitude of the results or outcomes likely
to be attained by the proposed project that demonstrate its impact for
the target population in terms of breadth and depth of services.
(xvii) The extent to which the proposed project introduces an
innovative approach, such as a modification of an evidence-based
project component to serve different populations, an extension of an
existing evidence-based project component, a unique composition of
various project components to explore combined effects, or development
of an emerging project component that needs further testing.
(xviii) The potential contribution of the proposed project to
improve the provision of services, increase the number of high-quality
personnel, or develop and implement effective practices to improve
outcomes for the target population.
(c) Quality of the project design.
(1) The Secretary considers the quality of the design of the
proposed project.
(2) In determining the quality of the design of the proposed
project, the Secretary considers one or more of the following factors:
(i) The extent to which the goals, objectives, and outcomes to be
achieved by the proposed project are clearly specified, measurable, and
ambitious yet achievable within the project period, and aligned with
the purposes of the grant program.
(ii) The extent to which the design of the proposed project
demonstrates meaningful community and family engagement and input to
ensure that the project is appropriate to successfully address the
needs of the target population or other identified needs and will be
used to inform continuous improvement strategies.
(iii) The quality of the logic model or other conceptual framework
underlying the proposed project, including how inputs are related to
outcomes.
(iv) The extent to which the proposed project's logic model or
other conceptual framework was developed based on engagement of a broad
range of community members and partners.
(v) The extent to which the proposed project includes specific,
measurable targets, connected to strategies, activities, resources,
outputs, and outcomes, and uses reliable data to measure progress and
inform continuous improvement.
(vi) The extent to which the design of the proposed project
includes a thorough, high-quality review of the relevant literature, a
high-quality plan for project implementation, and the use of
appropriate methodological tools to enable successful achievement of
project objectives.
(vii) The quality of the proposed demonstration design, such as
qualitative and quantitative design, and procedures for documenting
project activities and results for the target population.
(viii) The extent to which the design for implementing and
evaluating the proposed project will result in information to guide
possible replication of project activities or strategies, including
valid and reliable information about the effectiveness of the approach
or strategies employed by the project.
(ix) The extent to which the proposed development efforts include
adequate quality controls, continuous improvement efforts, and, as
appropriate, repeated testing of products.
(x) The extent to which the proposed project demonstrates that it
is designed to build capacity and yield sustainable results that will
extend beyond the project period.
(xi) The extent to which the design of the proposed project
reflects the most recent and relevant knowledge and practices from
research.
(xii) The extent to which the proposed project represents an
exceptional approach to meeting program purposes and requirements and
serving the target population.
(xiii) The extent to which the proposed project represents an
exceptional approach to any absolute priority or absolute priorities
used in the competition.
(xiv) The extent to which the proposed project will integrate or
build on ideas, strategies, and efforts from similar external projects
to improve relevant outcomes, using existing funding streams from other
programs or policies supported by community, State, and Federal
resources.
(xv) The extent to which the proposed project is informed by
similar past projects implemented by the applicant or a partner with
demonstrated results.
(xvi) The extent to which the proposed project will include
[[Page 54677]]
coordination with other community, State, and Federal investments, as
well as appropriate agencies and organizations providing similar
services to the target population.
(xvii) The extent to which the proposed project is part of a
comprehensive effort to improve teaching and learning and support
rigorous academic standards for students.
(xviii) The extent to which the proposed project includes explicit
plans for meaningful and ongoing community member and partner
engagement, including their involvement in planning, implementing, and
revising project activities for the target population.
(xix) The extent to which the proposed project includes plans for
family involvement.
(xx) The extent to which performance feedback and formative data
are integral to the design of the proposed project and will be used to
inform continuous improvement.
(xxi) The extent to which the proposed project demonstrates that
admissions, promotion, or participant selection decisions made under
the grant are based on academic excellence and high standards, without
consideration of race, color, religion, sex, national origin, or any
proxies for these characteristics, except where a legally permissible
exception applies and is expressly identified and justified in the
application.
(xxii) The extent to which the applicant demonstrates that it has
the resources to operate the project beyond the project period,
including a multiyear financial and operating model and accompanying
plan; the demonstrated commitment of any partners; demonstration of
broad support from community members and partners (such as State
educational agencies, educators, families, business and industry,
community members, and State vocational rehabilitation agencies) that
are critical to the project's long-term success; or a plan for
capacity-building by leveraging one or more of these types of
resources.
(xxiii) The extent to which there is a plan to incorporate the
project purposes, activities, or benefits into the ongoing work of the
applicant beyond the end of the project period.
(xxiv) The extent to which the proposed project will increase
efficiency in the use of time, staff, money, or other resources in
order to improve results and increase productivity.
(xxv) The extent to which the proposed project will integrate with,
or build on, similar or related efforts in order to improve relevant
outcomes, using non-Federal funds or resources.
(xxvi) The extent to which the proposed project demonstrates a
rationale that is aligned with the purposes of the grant program.
(xxvii) The extent to which the proposed project represents
implementation of the evidence cited in support of the proposed project
with fidelity.
(xxviii) The extent to which the applicant plans to allocate a
significant portion of its requested funding to the evidence-based
project components.
(xxix) The strength of the commitment from key decision-makers at
proposed implementation sites.
(xxx) The extent to which the proposed project is supported by
promising evidence.
(d) Quality of project services.
(1) The Secretary considers the quality of the services to be
provided by the proposed project.
(2) In determining the quality of the services to be provided by
the proposed project, the Secretary considers one or more of the
following factors:
(i) The extent to which the services to be provided by the proposed
project were determined with input from the community to be served to
ensure that they are appropriate and responsive to the needs of the
target population.
(ii) The extent to which the proposed project is supported by the
target population that it is intended to serve.
(iii) The extent to which the services to be provided by the
proposed project reflect up-to-date knowledge in relevant fields and
evidence-based project components.
(iv) The likely benefit to the target population, as indicated by
the logic model or other conceptual framework, of the services to be
provided.
(v) The extent to which the training, professional development, or
technical assistance services to be provided by the proposed project
are of sufficient quality, intensity, and duration to build capacity in
ways that lead to improvements in practice among the recipients of
those services.
(vi) The extent to which the services to be provided by the
proposed project are likely to provide long-term solutions to alleviate
the personnel shortages that have been identified or are the focus of
the proposed project.
(vii) The likelihood that the services to be provided by the
proposed project will lead to meaningful improvements in the
achievement of students as measured against rigorous and relevant
standards.
(viii) The likelihood that the services to be provided by the
proposed project will lead to meaningful improvements in early
childhood and family outcomes.
(ix) The likelihood that the services to be provided by the
proposed project will lead to meaningful improvements in the skills and
competencies necessary to gain employment in high-wage, high-growth,
and high-demand jobs, careers, and industries or build capacity for
independent living.
(x) The extent to which the services to be provided by the proposed
project involve the collaboration of appropriate partners, including
those from the target population, to maximize the effectiveness of
project services.
(xi) The extent to which the services to be provided by the
proposed project involve the use of efficient strategies, including the
use of technology, as appropriate, and the leveraging of non-Federal
resources.
(xii) The extent to which the services to be provided by the
proposed project are focused on the target population with the greatest
needs, as demonstrated by the data relevant to the project.
(xiii) The extent to which the proposed project will prepare high-
quality personnel to provide evidence-based practices to improve
outcomes for the target population.
(e) Quality of the project personnel.
(1) The Secretary considers the quality of the personnel who will
carry out the proposed project.
(2) In determining the quality of project personnel, the Secretary
considers one or more of the following factors:
(i) The extent to which the project director or principal
investigator, when hired, has the qualifications required for the
project, including relevant training or experience in fields related to
the objectives of the project and experience in designing, managing, or
implementing similar projects for the target population.
(ii) The extent to which the key personnel in the project, when
hired, have the qualifications or experiences required for the proposed
project, including relevant training or experience in fields related to
the objectives of the project and with the target population.
(iii) The qualifications, including relevant training and
experience, of project consultants or subcontractors.
(iv) The extent to which the proposed planning, implementing, and
evaluating project team are familiar with the assets, needs, and other
contextual considerations of the proposed implementation sites.
(v) The extent to which the proposed planning, implementing, and
evaluating project team are familiar with the assets,
[[Page 54678]]
needs, and other contextual considerations of the proposed
implementation sites.
(vi) The extent to which the proposed project demonstrates that
hiring, promotion, and compensation decisions made under the grant will
be based solely on merit and high standards, without consideration of
race, color, religion, sex, national origin, or any proxies for these
characteristics, except where a legally permissible exception applies
and is expressly identified and justified in the application, such as
for a religious organization or an entity undertaking lawful remedial
measures.
(f) Adequacy of resources.
(1) The Secretary considers the adequacy of resources for the
proposed project.
(2) In determining the adequacy of resources for the proposed
project, the Secretary considers one or more of the following factors:
(i) The adequacy of support for the project, including facilities,
equipment, supplies, and other resources, from the applicant.
(ii) The relevance and demonstrated commitment of specific roles
and contributions of each partner in the proposed project to the
implementation and success of the project.
(iii) The extent to which the budget is adequate to support the
proposed project, and the costs are reasonable in relation to the
objectives, design, and potential significance of the proposed project.
(iv) The extent to which the costs are reasonable in relation to
the number of persons to be served, the depth and intensity of
services, and the anticipated results and benefits.
(v) The extent to which the costs of the proposed project would
permit other entities to replicate the project.
(vi) The level of initial matching funds or other commitment from
partners, indicating the likelihood for potential continued support of
the project after Federal funding ends.
(vii) The potential for the purposes, activities, or benefits of
the proposed project to be institutionalized into the ongoing practices
and programs of the applicant, agency, or organization and continue
after Federal funding ends.
(g) Quality of the management plan.
(1) The Secretary considers the quality of the management plan for
the proposed project.
(2) In determining the quality of the management plan for the
proposed project, the Secretary considers one or more of the following
factors:
(i) The feasibility of the management plan to achieve project
objectives and goals on time and within budget, including clearly
defined responsibilities, timelines, and milestones for accomplishing
project tasks.
(ii) The adequacy of plans for ensuring the use of quantitative and
qualitative data, including meaningful community member and partner
input, to inform continuous improvement in the operation of the
proposed project.
(iii) The adequacy of mechanisms for ensuring high-quality and
accessible products and services from the proposed project for the
target population.
(iv) The extent to which the time commitments of project personnel
are appropriate and adequate to meet the objectives of the proposed
project.
(v) How the applicant will ensure that various perspectives,
including those from the target population, are brought to bear in the
design, implementation, operation, evaluation, and improvement of the
proposed project, including those of families, educators, community-
based organizations, the business community, a variety of disciplinary
and professional fields, recipients or beneficiaries of services, or
others, as appropriate.
(h) Quality of the project evaluation or other evidence-building.
(1) The Secretary considers the quality of the evaluation or other
evidence-building of the proposed project.
(2) In determining the quality of the evaluation or other evidence-
building, the Secretary considers one or more of the following factors:
(i) The extent to which the methods of evaluation or other
evidence-building are thorough, feasible, relevant, and appropriate to
the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation or other
evidence-building are appropriate to the context within which the
project operates and the target population of the proposed project.
(iii) The extent to which the methods of evaluation or other
evidence-building are designed to measure the fidelity of
implementation of the project.
(iv) The extent to which the methods of evaluation or other
evidence-building include the use of objective performance measures
that are clearly related to the intended outcomes of the project and
will produce quality data that are quantitative and qualitative.
(v) The extent to which the methods of evaluation or other
evidence-building will provide guidance for quality assurance and
continuous improvement.
(vi) The extent to which the methods of evaluation or other
evidence-building will provide performance feedback and provide
formative, diagnostic, or interim data that is a periodic assessment of
progress toward achieving intended outcomes.
(vii) The extent to which the evaluation will provide guidance
about effective strategies suitable for replication or testing and
potential implementation in other settings.
(viii) The extent to which the methods of evaluation will, if well
implemented, produce evidence about the effectiveness of the project on
relevant outcomes that would meet strong evidence.
(ix) The extent to which the methods of evaluation will, if well
implemented, produce evidence about the effectiveness of the project on
relevant outcomes that would meet moderate or strong evidence.
(x) The extent to which the methods of evaluation will, if well
implemented, produce evidence of effectiveness of the project on
relevant outcomes that would meet promising evidence.
(xi) The extent to which the evaluation employs an appropriate
analytic strategy to build evidence about the relationship between key
project components, mediators, and outcomes and inform decisions on
which project components to continue, revise, or discontinue.
(xii) The quality of the evaluation plan for measuring fidelity of
implementation, including thresholds for acceptable implementation, to
inform how implementation is associated with outcomes.
(xiii) The extent to which the evaluation plan includes a
dissemination strategy that is likely to promote others' learning from
the project.
(xiv) The extent to which the evaluator has the qualifications,
including the relevant training, experience, and independence, required
to conduct an evaluation of the proposed project, including experience
conducting evaluations of similar methodology as proposed and with
evaluations for the proposed population and setting.
(xv) The extent to which the proposed project plan includes
sufficient resources to conduct the project evaluation effectively.
(xvi) The extent to which the evaluation will access and link high-
quality administrative data from authoritative sources to improve
evaluation quality and comprehensiveness.
(i) Strategy to scale.
[[Page 54679]]
(1) The Secretary considers the applicant's strategy to effectively
scale the proposed project.
(2) In determining the applicant's strategy to effectively scale
the proposed project, the Secretary considers one or more of the
following factors:
(i) The quality of the strategies to reach scale by expanding the
project to new populations or settings.
(ii) The applicant's capacity (such as qualified personnel,
financial resources, or management capacity), together with any project
partners, to bring the proposed project effectively to scale on a
national or regional level during the grant period.
(iii) The applicant's capacity (such as qualified personnel,
financial resources, or management capacity), together with any project
partners, to further develop and bring the proposed project effectively
to scale on a national level during the grant period, based on the
findings of the proposed project.
(iv) The quality of the mechanisms the applicant will use to
broadly disseminate information and resources on its project to support
further development, adaptation, or replication by other entities to
implement project components in additional settings or with other
populations.
(v) The extent to which there is unmet demand for broader
implementation of the project that is aligned with the proposed
project.
(vi) The extent to which there is a market of potential entities
that will commit resources toward implementation.
(vii) The quality of the strategies to scale that take into account
and are responsive to previous barriers to expansion.
(viii) The quality of the plan to deliver project services more
efficiently at scale and maintain effectiveness.
(ix) The quality of the plan to develop revenue sources that will
make the project self-sustaining.
(x) The extent to which the project will create reusable data and
evaluation tools and techniques that facilitate expansion and support
continuous improvement.
0
14. Amend Sec. 75.220 in paragraph (b)(2) by removing ``Office of
Finance and Operations (OFO)'' and adding in its place ``Department''.
0
15. Amend Sec. 75.222 by:
0
a. In the introductory text, removing the words ``in the Federal
Register''.
0
b. Revising the note to read as follows:
Sec. 75.222 Procedures the Department uses under Sec. 75.219(c).
* * * * *
Note 1 to Sec. 75.222: To assure prompt consideration, an
applicant submitting an unsolicited application should send the
application, marked ``Unsolicited Application'' in the subject line,
to [email protected].
0
16. Amend Sec. 75.224 in paragraph (c)(1) by removing the words ``in
the Federal Register''.
0
17. Add Sec. 75.228 after Sec. 75.227 to read as follows:
Sec. 75.228 What procedures does the Secretary use if the Secretary
decides to give special consideration to applicants voluntarily
electing to be more cost effective, including use of a lower indirect
cost rate?
(a) If the Secretary determines that special consideration of
applicants electing to use a lower indirect cost rate is appropriate,
the Secretary may provide competitive preference to applicants that
meet one or more of the conditions in paragraph (b) of this section.
(b) As used in this section, ``lower indirect cost rate'' means an
applicant that meets one or more of the following conditions:
(1) The applicant proposes to use an indirect cost rate, as defined
by Sec. Sec. 75.560-75.564, that is lower than the applicant's
approved negotiated indirect cost rate that they would be otherwise
entitled to take under the specific grant program by the following
percentage tiers:
(i) 5% or more;
(ii) 10% or more;
(iii) 20% or more;
(iv) 30% or more;
(v) 40% or more;
(vi) 50% or more; or
(vii) Voluntary election not to charge any indirect costs;
(2) Elect to use the de minimis indirect cost rate under 2 CFR
200.414(f) for competitions that do not require special indirect cost
rates such as, but not limited to, Training (Sec. 75.562) and
Restricted (Sec. 76.563) when the applicant's negotiated rate exceeds
the de minimis rate.
(c) Applicants proposing a lower indirect cost rate must adhere to
that percentage reduction of their approved negotiated indirect cost
rate for the life of the grant.
(d) To be considered for competitive preference, applicants must
include documentation in their application, acceptable to the
Secretary, that verifies their approved indirect cost rate. As
applicable, applicants must also clearly state the lower indirect cost
rate percentage and the corresponding amount in the budget narrative.
(e) Applicants that do not have a current federally negotiated
indirect cost rate agreement, to receive competitive preference, may--
(1) Elect to use the de minimis rate under 2 CFR 200.414(f), if the
competition does not require a special indirect cost rate; or
(2) If an applicant later obtains a federally negotiated indirect
cost rate agreement, certify to use only the lower indirect cost rate
percentage, rather than the full indirect cost rate the applicant would
otherwise be entitled to claim.
(f) For applicants with federally approved cost allocation plans--
(1) the competitive preference criteria in paragraph (b), will be
evaluated on the basis of the allocated indirect costs that could have
been charged to the award by the percentage tiers reduction of the
elected lower indirect costs charge or election not to charge indirect
costs.
(2) To be considered for competitive preference, applicants must
include documentation in their application, acceptable to the
Secretary, that verifies their approved cost allocation plan.
Applicants must also clearly state the reduced indirect cost charge and
the corresponding reduction percentage and amount in the budget
narrative.
(g) The election to charge lower indirect costs may not be charged
directly, used to satisfy matching or cost-sharing requirements, or
charged to another Federal award.
0
18. Amend Sec. 75.230 by adding a new paragraph (b) to read as
follows:
Sec. 75.230 How the Department makes a grant.
(a) * * *
(b) Neither the approval of any application nor the award of any
grant commits or obligates the Federal Government in any way to make
any additional, supplemental, continuation or other award with respect
to any approved application or portion of an approved application.
0
19. Amend Sec. 75.251 by:
0
a. In paragraph (b)(2) removing the word ``contination'' and adding it
its place ``continuation''.
0
b. Adding a new paragraph (d) to read as follows:
* * * * *
(d) If it becomes apparent to the Secretary that the amount of
Federal funds awarded and available to the grantee for that period,
including any unspent balance carried forward from prior periods,
exceeds the grantee's needs for that period, the Secretary may adjust
the amounts awarded by deobligating the excess.
0
20. Add Sec. 75.252 after Sec. 75.251 and before Sec. 75.253 to read
as follows:
[[Page 54680]]
Sec. 75.252 Frontloading of a multiyear project.
(a) The Secretary may, in approving a multi-year project, approve:
(1) Partial frontload funding for future budget periods of the
project, beyond the initial budget period; or
(2) Full frontload funding for the entire project period for a
multi-year project, but not to exceed the Sec. 75.250 Maximum project
period.
(b) A grantee may only draw down funds in accordance with its
approved budget for that budget year and may not draw down funds in
excess of that amount without prior approval.
(c) Either--
(1) A grantee must demonstrate, on an annual basis, that it has
made substantial progress in achieving--
(i) The goals and objectives of the project; and
(ii) The performance targets in the grantee's approved application
or targets established by the Secretary, if the Secretary established
performance measurement requirements for the grant in the application
notice; or
(2) Obtain the Secretary's approval for changes to the project
that--
(i) Do not increase the amount of funds obligated to the project by
the Secretary; and
(ii) Enable the grantee to achieve the goals and objectives of the
project and meet the performance targets of the project, including
targets established by the Secretary, if any, without changing the
scope or objectives of the project;
(d) Submit all reports as required by Sec. 75.118;
(e) Continue to meet all applicable eligibility requirements of the
grant program;
(f) Maintain financial and administrative management systems that
meet the requirements in 2 CFR 200.302 and 200.303; and
(g) Receive a determination from the Secretary that continuation of
the project is in the best interest of the Federal Government.
0
21. Revise Sec. 75.253 to read as follows:
Sec. 75.253 Continuation of a multiyear project after the first
budget period.
(a) Continuation award. A grantee, in order to receive a
continuation award or be able to access previously frontloaded funds
from the Secretary for a budget period after the first budget period of
an approved multiyear project, must--
(1) Either--
(i) Demonstrate that it has made substantial progress in
achieving--
(A) The goals and objectives of the project; and
(B) The performance targets in the grantee's approved application
or targets established by the Secretary, if the Secretary established
performance measurement requirements for the grant in the application
notice; or
(ii) Obtain the Secretary's approval for changes to the project
that--
(A) Do not increase the amount of funds obligated to the project by
the Secretary; and
(B) Enable the grantee to achieve the goals and objectives of the
project and meet the performance targets of the project, including
targets established by the Secretary, if any, without changing the
scope or objectives of the project;
(2) Submit all reports as required by Sec. 75.118;
(3) Continue to meet all applicable eligibility requirements of the
grant program;
(4) Maintain financial and administrative management systems that
meet the requirements in 2 CFR 200.302 and 200.303; and
(5) Receive a determination from the Secretary that continuation of
the project is in the best interest of the Federal Government.
(b) Information considered in making a continuation award. In
determining whether the grantee has met the requirements described in
paragraph (a) of this section, the Secretary may consider any relevant
information. This includes grant applications and reports required by
Sec. 75.118, performance measures established under Sec. 75.110,
financial information required by 2 CFR part 200, and any other
relevant information.
(c) Funding for grant awards. Subject to any applicable statutory
requirements, in providing continued funding to existing grantees, the
Secretary has discretion to determine the funds available for a
program.
(d) Budget period. If the Secretary makes a continuation award
under this section--
(1) The Secretary makes the award under Sec. Sec. 75.231 through
75.236; and
(2) The new budget period begins on the day after the previous
budget period ends.
(e) Amount of continuation award.
(1) Within the original project period of the grant and
notwithstanding any requirements in 2 CFR part 200, a grantee may
expend funds that have not been obligated at the end of a budget period
for obligations in subsequent budget periods if--
(i) The obligation is for an allowable cost within the approved
scope and objectives of the project; and
(ii) The obligation is not otherwise prohibited by applicable
statutes, regulations, or the conditions of an award.
(2) The Secretary may--
(i) Require the grantee to submit a written statement describing
how the funds made available under paragraph (d)(1) of this section
will be used; and
(ii) Determine the amount of new funds that the Department will
make available for the subsequent budget period after considering the
statement the grantee provides under paragraph (d)(2)(i) of this
section and any other information available to the Secretary about the
use of funds under the grant.
(3) In determining the amount of new funds to make available to a
grantee under this section, the Secretary considers whether the
unobligated funds made available are needed to complete activities that
were planned for completion in the prior budget period.
(4) A decision to reduce the amount of a continuation award under
this paragraph (d) does not entitle a grantee to reconsideration under
2 CFR 200.342.
(5) When making a continuation award, the Secretary may issue a
partial award, provide funding in installments, or delay the release of
funds.
(f) Timing to make a continuation award. The Secretary may make a
continuation award determination at any time within the fiscal or
appropriation year of the program.
(g) Decision not to make a continuation award. The Secretary may
decide not to continue an award if--
(1) A grantee fails to meet any of the requirements in paragraph
(a) of this section; or
(2) A grantee fails to ensure that data submitted to the Department
as a condition of the grant meet the definition of ``quality data'' in
34 CFR 77.1(c) and does not have a plan acceptable to the Secretary for
addressing data-quality issues in the next budget period.
(h) Request for reconsideration. If the Secretary decides not to
continue an award under this section, the Secretary will notify the
grantee of that decision, the grounds on which it is based, and,
consistent with 2 CFR 200.342, provide the grantee with an opportunity
to request reconsideration of the decision.
(1) A request for reconsideration must--
(i) Be submitted in writing to the Department official identified
in the notice denying the continuation award by the date specified in
that notice; and
(ii) Set forth the grantee's basis for disagreeing with the
Secretary's decision not to make a continuation award and include
relevant supporting documentation.
(2) The Secretary will consider the request for reconsideration.
[[Page 54681]]
(i) No-cost extension when a continuation award is not made. If the
Secretary decides not to make a continuation award under this section,
the Secretary may authorize a no-cost extension of the last budget
period of the grant in order to provide for the orderly closeout of the
grant.
(j) A decision to reduce or not to make a continuation award does
not constitute withholding. A decision by the Secretary to reduce the
amount of a continuation award under paragraph (d) of this section or
to not make a continuation award under paragraph (e) of this section
does not constitute a withholding under section 455 of GEPA (20 U.S.C.
1234d). This includes depriving the Office of Hearings and Appeals of
jurisdiction to hear withholding cases.
0
22. Amend Sec. 75.261 by revising paragraph (a)(1) to read as follows:
Sec. 75.261 Extension of a project period.
(a) * * *
(1) The grantee meets the requirements for extension in 2 CFR
200.308(g)(2); and
* * * * *
Sec. 75.262 [Amended]
0
23. Amend Sec. 75.262 by removing the citation ``Sec. 75.200(b)(4)
and (5)'' in paragraphs (a)(2) and (b), and adding in its place the
citation ``Sec. 75.200(c)(1) and (2)''.
0
24. Amend Sec. 75.263 by revising the introductory paragraph to read
as follows:
Sec. 75.263 Pre-award costs; waiver of approval.
A grantee may incur pre-award costs as specified in 2 CFR
200.308(g)(1) unless--
0
25. Amend Sec. 75.500 by adding a new paragraph (f) to read as
follows:
* * * * *
(f) A grantee must:
(1) Ensure that hiring, admissions, promotions, and compensation
practices under the grant are based on merit and high standards,
without regard to race, color, religion, sex, national origin, or
proxies thereof unless an appropriate exception applies (such as a
religious organization or an organization engaged in remedial action).
(2) Ensure that the grantee's employment practices do not compel
statements of belief in support or opposition to any political views as
a condition of employment, admission, or project participation, unless
an appropriate exception applies.
(3) Ensure that, where applicable, the grantee has policies
protecting freedom of speech, inquiry, and press as specified and
required by 34 CFR 75.500(a)-(e).
0
26. Amend Sec. 75.524 by revising paragraph (b) to read as follows:
Sec. 75.524 Conflict of interest: Purpose of Sec. 75.525.
(a) * * *
(b) These conflict of interest regulations do not apply to a
``local government,'' or a ``State,'' as defined in 2 CFR 200.1.
* * * * *
0
27. Amend Sec. 75.562 by revising the introductory language of
paragraph (c)(2) to read as follows:
Sec. 75.562 Indirect cost rates for educational training projects;
exceptions.
* * * * *
(c) * * *
(1) * * *
(2) If the grantee does not have a federally recognized indirect
cost rate agreement on the date on which the training grant is awarded,
the grantee may elect to use the temporary indirect cost rate
authorized under Sec. 75.560(d) or a rate of 8 percent of the MTDC
base. The de minimis rate may not be used on educational training
programs.
(i) * * *
(ii) * * *
* * * * *
0
28. Amend Sec. 75.604 by revising paragraph (c) to read as follows:
Sec. 75.604 During the construction.
* * * * *
(c) If a revision to the timeline, budget, or approved final
working specifications is required, the grantee must request prior
written approval consistent with 2 CFR 200.308(f).
* * * * *
0
29. Remove the undesignated ``Equipment and Supplies'' cross reference
section after Sec. 75.617.
0
30. Remove the undesignated ``Other Requirements for Certain Projects''
Cross Reference after Sec. 75.626.
0
31. Remove and reserve Sec. 75.684.
0
32. Amend Sec. 75.708 by revising paragraph (e) to read as follows:
Sec. 75.708 Subgrants.
* * * * *
(e) Grantees that are not allowed to make subgrants under paragraph
(b) of this section are authorized to contract, as needed, for
supplies, equipment, and other services, in accordance with 2 CFR part
200, subpart D (2 CFR 200.300 through 200.346).
0
33. Remove the undesignated Reports cross reference following Sec.
75.714 ``Subgrants, contracts, and other agreements with faith-based
organizations''.
0
34. Remove the undesignated ``Records Cross Reference'' after Sec.
75.721.
0
35. Remove and reserve Sec. 75.741.
0
36. Remove the undesignated cross reference following the heading for
``Subpart G''.
0
37. Amend Sec. 75.901 to read as follows:
Sec. 75.901 Suspension and termination.
* * * * *
(a) A grant may be terminated in part or its entirety as follows:
(1) For noncompliance by the grantee or subgrantee;
(2) For convenience of the Secretary or pass-through entity;
(3) By mutual agreement of the parties;
(4) Upon notification by the grantee or subgrantee; or
(5) Pursuant to additional terms and conditions.
(b) The Secretary may, but is not limited to, employ the following
remedies for grants:
(1) 2 CFR 200.339 (Remedies for noncompliance).
(2) 2 CFR 200.340 (Termination).
(3) 2 CFR 200.341 (Notification of termination requirement).
(4) 2 CFR 200.342 (Opportunities to object, hearings and appeals).
(5) 2 CFR 200.343 (Effects of suspension and termination).
(6) 2 CFR 200.345 (Post-closeout adjustments and continuing
responsibilities).
(7) Termination for Convenience.
(c) The Secretary may designate the Office of Administrative Law
Judges to resolve disputes consistent with 34 CFR 81.3(b).
PART 76--STATE-ADMINISTERED FORMULA GRANT PROGRAMS
0
38. The authority citation for part 76 continues to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
Section 76.101 also issued under 20 U.S.C. 1221e-3, 3474, and
7844(b).
Section 76.127 also issued under 48 U.S.C. 1469a.
Section 76.128 also issued under 48 U.S.C. 1469a.
Section 76.129 also issued under 48 U.S.C. 1469a.
Section 76.130 also issued under 48 U.S.C. 1469a.
Section 76.131 also issued under 48 U.S.C. 1469a.
Section 76.132 also issued under 48 U.S.C. 1469a.
Section 76.134 also issued under 48 U.S.C. 1469a.
Section 76.136 also issued under 48 U.S.C. 1469a.
Section 76.140 also issued under 20 U.S.C. 1221e-3, 1231g(a),
and 3474.
[[Page 54682]]
Section 76.301 also issued under 20 U.S.C. 1221e-3, 3474, and
7846(b).
Section 76.401 also issued under 20 U.S.C. 1221e-3, 1231b-2, and
3474.
Section 76.500 also issued under 20 U.S.C. 1228a(c).
Section 76.709 also issued under 20 U.S.C. 1221e-3, 1225(b), and
3474.
Section 76.710 also issued under 20 U.S.C. 1221e-3, 1225(b), and
3474.
Section 76.720 also issued under 20 U.S.C. 1221e-3, 1231a, and
3474.
Section 76.740 also issued under 20 U.S.C. 1221e-3, 1232g,
1232h, and 3474.
Section 76.783 also issued under 20 U.S.C. 1231b-2.
Section 76.785 also issued under 20 U.S.C. 7221e.
Section 76.786 also issued under 20 U.S.C. 7221e.
Section 76.787 also issued under 20 U.S.C. 7221e.
Section 76.788 also issued under 20 U.S.C. 7221e.
Section 76.901 also issued under 20 U.S.C. 1234.
0
39. Add Sec. 76.3 after Sec. 76.2 to read as follows:
If any provision of this part or its application to any person,
act, or practice is held invalid, the remainder of the part or the
application of its provisions to any person, act, or practice shall not
be affected thereby.
0
40. Amend Sec. 76.50 by revising paragraph (d) to read as follows:
Sec. 76.50 Basic requirements for subgrants.
* * * * *
(d) Grantees, in cases where subgrants are prohibited by applicable
statutes or regulations or the terms and conditions of a grant award,
are authorized to contract, as needed, for supplies, equipment, and
other services, in accordance with 2 CFR part 200, subpart D (2 CFR
200.300 through 200.346).
* * * * *
0
41. Amend Sec. 76.500 by adding a new paragraph (f) to read as
follows:
* * * * *
(f) A grantee must:
(1) Ensure that hiring, admissions, promotions, and compensation
practices under the grant are based on merit and qualification, without
regard to race, color, religion, sex, national origin, or proxies
thereof unless an appropriate exception applies such as a religious
organization or an organization engaged in remedial action.
(2) Ensure that the grantee's employment practices do not compel
statements of belief in support or opposition to any political views as
a condition of employment, admission, or project participation, unless
an appropriate exception applies.
(3) Ensure that that, where applicable, the grantee has policies
protecting freedom of speech, inquiry, and press as specified and
required by 34 CFR 75.500(a)-(e).
0
42. Revise Sec. 76.700 to read as follows:
Sec. 76.700 Compliance with the U.S. Constitution, statutes,
regulations, stated institutional policies, and applications.
A State and a subgrantee shall comply with Sec. 76.500, the State
plan, applicable statutes, regulations, Executive orders, and approved
applications, and shall use Federal funds in accordance with those
statutes, regulations, Executive orders, plans, and applications.
0
43. Amend Sec. 76.720 by revising paragraph (b)(2) to read as follows:
Sec. 76.720 State reporting requirements.
* * * * *
(b) * * *
(2) The Secretary requires a State to report more frequently than
annually, including reporting under 2 CFR 3474.10 and 2 CFR 200.208
(Specific conditions) and 2 CFR 3474.10 (Clarification regarding 2 CFR
200.208) or 2 CFR 200.302 Financial management and 200.303 Internal
controls.
* * * * *
PART 77--DEFINITIONS THAT APPLY TO DEPARTMENT REGULATIONS
0
44. The authority citation for part 77 continues to read as follows:
Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.
0
45. Amend Sec. 77.1 in paragraph (c) by:
0
a. Adding the definition of ``Evidence framework'';
0
b. Revising the definition of ``Experimental study'';
0
c. Adding the definition of Frontloading'';
0
d. Revising the definition of ``Moderate evidence'';
0
e. Revising the definition of ``National level'';
0
f. Revising the definition of ``Promising evidence'';
0
g. Revising the definition of ``Quasi-experimental design study'';
0
h. Revising the definition of ``Regional level'';
0
i. Revising the definition of ``Subgrant''; and
0
j. Revising the definition of ``Strong evidence''.
The revisions and additions read as follows:
Sec. 77.1 Definitions that apply to all Department programs.
* * * * *
(c) * * *
* * * * *
Evidence framework means an approach to providing a determination
about whether a project component meets each aspect of the definition
of strong evidence or moderate evidence, as applicable.
(a) An evidence framework must include each of the following:
(i) Whether or not a study is an experimental study or a quasi-
experimental design study;
(ii) Whether or not a study shows a positive, statistically
significant effect on student outcomes or other relevant outcomes;
(iii) Whether or not a study uses outcome measures that demonstrate
validity and reliability, that do not give an unfair advantage to
participants in one condition over another, and that are measured
consistently for the groups or participants that are being compared;
(iv) Whether or not a study design is otherwise of high quality,
including whether it minimizes factors outside the intervention that
could affect student or other relevant outcomes (confounds) and whether
random assignment (if used) was done with integrity; and
(v) Whether or not study implementation and analysis is
appropriate, including whether groups or participants being compared
demonstrate baseline equivalence on key individual and other relevant
characteristics, whether differences in baseline equivalence are
statistically controlled, and by considering the impact on the validity
of the study of any changes to the sample over time.
(b) An evidence framework may be implemented or verified by one or
more of the following:
(i) An organization with relevant expertise that has demonstrated
to the Department that it has a high-quality, rigorous, transparent
(i.e., publicly accessible) process for determining each aspect
identified in (a);
(ii) By peer reviewers with statistical expertise who apply an
evidence framework consistent with each aspect identified in (a) in
reviewing support for an applicant's assertion that relevant
information is strong evidence or moderate evidence, as applicable; or
(iii) By the Department or peer reviewers with statistical
expertise who affirm an applicant's assertion that relevant information
is strong evidence or moderate evidence because it is supported by
study ratings included in the What Works Clearinghouse in one or more
of:
(1) a practice guide;
(2) an intervention report; or
(3) individual studies otherwise assessed to meet strong evidence
or moderate evidence.
Experimental study means a study that is designed to compare
outcomes between two groups (such as students)
[[Page 54683]]
that are otherwise equivalent except for their assignment to a
treatment group receiving a project component as compared with a
control group that does not. Experimental studies can support claims of
strong evidence. Randomized controlled trials and single-case design
studies are specific types of experimental studies that meet this
definition.
* * * * *
Frontloading means the use of appropriated funds available for
obligation in a particular fiscal year, in whole or in part, for future
budget periods of a grant award.
* * * * *
Moderate evidence means a project component that demonstrates a
statistically significant effect on improving student outcomes or other
relevant outcomes based on at least one well-designed and well-
implemented quasi-experimental study (moderate evidence as defined in
20 U.S.C. 7801(21)(A)(i)(II)).
National level means the level of scope or effectiveness of a
project component is able to be effective in a wide variety of
communities, including rural and urban areas, populations, and
settings.
* * * * *
Promising evidence means at least one well-designed and well-
implemented correlational study with statistical controls for selection
bias (promising evidence as defined in 20 U.S.C. 7801(21)(A)(i)(III)).
* * * * *
Quasi-experimental design study means a study using a design that
attempts to approximate an experimental study by identifying a
comparison group that is similar to the treatment group in important
respects. Cross-sectional group designs, comparative interrupted time
series, difference-in-difference designs, and growth curve designs are
specific types of quasi-experimental studies that meet this definition.
This type of study can meet the definition of moderate evidence but not
strong evidence.
Regional level means the level of scope or effectiveness of a
project component is able to serve a variety of communities within a
State or multiple States, including rural and urban areas. For an LEA-
based project, to be considered a regional-level project, a project
component must serve students in more than one LEA, unless the project
component is implemented in a State in which the State educational
agency is the sole educational agency for all schools.
* * * * *
Subgrant means an award of financial assistance in the form of
money, or property in lieu of money, made under a grant by a grantee to
an eligible subgrantee. The term includes financial assistance when
provided by contractual or any other form of legal agreement, but does
not include procurement purchases, nor does it include any form of
assistance that is excluded from the definitions of ``Grant or Award''
in this part (See 2 CFR 200.1, ``Subaward'').
* * * * *
Strong evidence means a project component that demonstrates a
statistically significant effect on improving student outcomes or other
relevant outcomes based on at least one well-designed and well-
implemented experimental study (strong evidence as defined in 20 U.S.C.
7801(21)(A)(i)(I)).
* * * * *
PART 79--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF EDUCATION
PROGRAMS AND ACTIVITIES
0
46. Amend Sec. 79.3 in paragraph (a) by removing ``in the Federal
Register''.
0
47. Amend Sec. 79.6 in paragraph (a) by removing ``in the Federal
Register''.
0
48. Amend Sec. 79.8 in paragraph (b)(2) by removing ``in the Federal
Register''.
[FR Doc. 2026-17239 Filed 8-21-26; 8:45 am]
BILLING CODE 4000-01-P