83 FR 18419 - Definitions and Selection Criteria That Apply to Direct Grant Programs

DEPARTMENT OF EDUCATION

Federal Register Volume 83, Issue 82 (April 27, 2018)

Page Range		18419-18421
FR Document		2018-08965

On July 31, 2017, the Department of Education (Department) issued a new rule in order to better align the Education Department General Administrative Regulations (EDGAR) with the definition of ``evidence-based'' in the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (ESEA). Through this document, we are adding a selection factor that was inadvertently omitted and removing an outdated definition.

Federal Register, Volume 83 Issue 82 (Friday, April 27, 2018)

[Federal Register Volume 83, Number 82 (Friday, April 27, 2018)]
[Rules and Regulations]
[Pages 18419-18421]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-08965]


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DEPARTMENT OF EDUCATION

34 CFR Parts 75 and 77

RIN 1855-AA13


Definitions and Selection Criteria That Apply to Direct Grant 
Programs

AGENCY: Department of Education.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On July 31, 2017, the Department of Education (Department) 
issued a new rule in order to better align the Education Department 
General Administrative Regulations (EDGAR) with the definition of 
``evidence-based'' in the Elementary and Secondary Education Act, as 
amended by the Every Student Succeeds Act (ESEA). Through this 
document, we are adding a selection factor that was inadvertently 
omitted and removing an outdated definition.

DATES: Effective date: These regulations are effective April 27, 2018.

FOR FURTHER INFORMATION CONTACT: Kelly Terpak, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 4W312, Washington, DC 20202-
5900. Telephone: (202) 205-5231 or by email: kelly.terpak@ed.gov.
    If you use a telecommunications device for the deaf (TDD) or text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:

Final Regulatory Changes

    Background: On July 31, 2017, the Department published in the 
Federal Register a final rule (82 FR 35445) (2017 Rule) revising 34 CFR 
parts 75 and 77 to better align the regulations with the definition of 
``evidence-based'' in the ESEA. In that rule, we inadvertently removed 
a selection factor and maintained an outdated definition. Therefore, 
the purpose of this document is to amend Sec. Sec.  75.210(h) and 
77.1(c) in order to correct those errors.

34 CFR Part 75

Section 75.210 General Selection Criteria
    Current Regulations: Section 75.210(h) includes 13 factors under 
the ``Quality of the Project Evaluation'' selection criterion.
    Final Regulations and Reasons: We are reinserting the selection 
factor under the ``Quality of the Project Evaluation'' criterion (Sec.  
75.210(h)) focused on the extent to which the methods of evaluation 
will provide valid and reliable performance data on relevant outcomes. 
This factor was inadvertently omitted from Sec.  77.210(h), and we are 
making this revision to add it back in. We believe this factor 
continues to be an important one to include in the menu of selection 
criteria and factors available for use in discretionary grant programs. 
As noted in the 2017 Rule, the final regulations do not change the way 
the Secretary uses selection criteria and factors. The Secretary will 
continue to use selection criteria that are consistent with the purpose 
of the program and permitted under the applicable statutes and 
regulations.

[[Page 18420]]

34 CFR Part 77

Section 77.1 Definitions That Apply to All Department Programs
    Current Regulations: Section 77.1(c) establishes definitions that, 
unless a statute or regulation provides otherwise, apply to the 
regulations in title 34 of the Code of Federal Regulations and can be 
used in Department grant competitions.
    Final Regulations and Reasons: We are removing the term 
``randomized controlled trial'' from Sec.  77.1(c). We are removing 
this definition because, as noted in the 2017 Rule, it was our intent 
to replace it with the term ``experimental study,'' to align with the 
definition of ``evidence-based,'' in section 8101(21), specifically 
with regard to ``strong evidence.'' In the new definition of ``strong 
evidence,'' we clarified the types of studies that can qualify as 
experimental studies--including, but not limited to, randomized 
controlled trials--as provided in the applicable What Works 
Clearinghouse (WWC) Handbook.

Waiver of Proposed Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, these regulations make 
technical changes only and do not establish substantive policy. The 
regulations are, therefore, exempt from notice and comment rulemaking 
under 5 U.S.C. 553(b)(3)(B).
    The APA also generally requires that regulations be published at 
least 30 days before their effective date, unless the agency has good 
cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, 
because these final regulations are merely technical, there is good 
cause to make them effective on the day they are published.

Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive order and subject to review by the 
Office of Management and Budget (OMB). Section 3(f) of Executive Order 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866 and 
that imposes total costs greater than zero, it must identify two 
deregulatory actions. For Fiscal Year 2018, any new incremental costs 
associated with a new regulation must be fully offset by the 
elimination of existing costs through deregulatory actions. However, 
Executive Order 13771 does not apply to ``transfer rules'' that cause 
only income transfers between taxpayers and program beneficiaries, such 
as those regarding discretionary grant programs. The final regulations 
pertain to the Department's discretionary grant programs and, 
therefore, Executive Order 13771 is not applicable.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on an analysis of anticipated costs 
and benefits, the Department believes that these final regulations are 
consistent with the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.

Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action and have determined that these 
regulations would not impose additional costs. We believe any 
additional costs imposed by these final regulations will be negligible, 
primarily because they reflect technical changes that do not impose 
additional burden. Moreover, we believe any costs will be significantly 
outweighed by the potential benefits of making necessary clarifications 
and ensuring consistency among the Education Department General 
Administrative Regulations and section 8101(21) of ESEA, as amended by 
the ESSA.

Regulatory Flexibility Act Certification

    The Secretary certifies that these regulations do not have a 
significant economic impact on a substantial number of small entities.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., Braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.

[[Page 18421]]

    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site, you can view this document, as well as all other 
documents of this Department published in the Federal Register, in text 
or Portable Document Format (PDF). To use PDF, you must have Adobe 
Acrobat Reader, which is available free at this site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects

34 CFR Part 75

    Accounting, Copyright, Education, Grant programs--education, 
Inventions and patents, Private schools, Reporting and recordkeeping 
requirements, Youth organizations.

34 CFR Part 77

    Education, Grant programs--education, Incorporation by reference.

    Dated: April 24, 2018.
Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
parts 75 and 77 of title 34 of the Code of Federal Regulations as 
follows:

PART 75--DIRECT GRANT PROGRAMS

0
1. The authority citation for part 75 continues to read as follows:

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


0
2. Section 75.210 is amended by adding paragraph (h)(2)(xiv) to read as 
follows:


Sec.  75.210   General selection criteria.

* * * * *
    (h) * * *
    (2) * * *
    (xiv) The extent to which the methods of evaluation will provide 
valid and reliable performance data on relevant outcomes.
* * * * *

PART 77--DEFINITIONS THAT APPLY TO DEPARTMENT REGULATIONS

0
3. The authority citation for part 77 continues to read as follows:

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


Sec.  77.1   [Amended]

0
4. Section 77.1(c) is amended by removing the definition of 
``randomized controlled trial.''

[FR Doc. 2018-08965 Filed 4-26-18; 8:45 am]
 BILLING CODE 4000-01-P

18420 Federal Register / Vol. 83, No. 82 / Friday, April 27, 2018 / Rules and Regulations

34 CFR Part 77 referred to as an ‘‘economically behavior or manner of compliance a
significant’’ rule); regulated entity must adopt; and
Section 77.1 Definitions That Apply to (5) Identify and assess available
(2) Create serious inconsistency or
All Department Programs alternatives to direct regulation,
otherwise interfere with an action taken
Current Regulations: Section 77.1(c) or planned by another agency; including economic incentives—such as
establishes definitions that, unless a (3) Materially alter the budgetary user fees or marketable permits—to
statute or regulation provides otherwise, impacts of entitlement grants, user fees, encourage the desired behavior, or
apply to the regulations in title 34 of the or loan programs or the rights and provide information that enables the
Code of Federal Regulations and can be obligations of recipients thereof; or public to make choices.
used in Department grant competitions. (4) Raise novel legal or policy issues Executive Order 13563 also requires
Final Regulations and Reasons: We arising out of legal mandates, the an agency ‘‘to use the best available
are removing the term ‘‘randomized President’s priorities, or the principles techniques to quantify anticipated
controlled trial’’ from § 77.1(c). We are stated in the Executive order. present and future benefits and costs as
removing this definition because, as This final regulatory action is not a accurately as possible.’’ The Office of
noted in the 2017 Rule, it was our intent significant regulatory action subject to Information and Regulatory Affairs of
to replace it with the term review by OMB under section 3(f) of OMB has emphasized that these
‘‘experimental study,’’ to align with the Executive Order 12866. techniques may include ‘‘identifying
definition of ‘‘evidence-based,’’ in Under Executive Order 13771, for changing future compliance costs that
section 8101(21), specifically with each new regulation that the might result from technological
regard to ‘‘strong evidence.’’ In the new Department proposes for notice and innovation or anticipated behavioral
definition of ‘‘strong evidence,’’ we comment or otherwise promulgates that changes.’’
clarified the types of studies that can is a significant regulatory action under We are issuing these final regulations
qualify as experimental studies— Executive Order 12866 and that imposes only on a reasoned determination that
including, but not limited to, total costs greater than zero, it must their benefits justify their costs. In
randomized controlled trials—as identify two deregulatory actions. For choosing among alternative regulatory
provided in the applicable What Works Fiscal Year 2018, any new incremental approaches, we selected those
Clearinghouse (WWC) Handbook. costs associated with a new regulation approaches that maximize net benefits.
must be fully offset by the elimination Based on an analysis of anticipated
Waiver of Proposed Rulemaking and
of existing costs through deregulatory costs and benefits, the Department
Delayed Effective Date
actions. However, Executive Order believes that these final regulations are
Under the Administrative Procedure consistent with the principles in
Act (APA) (5 U.S.C. 553), the 13771 does not apply to ‘‘transfer rules’’
that cause only income transfers Executive Order 13563.
Department generally offers interested We also have determined that this
parties the opportunity to comment on between taxpayers and program
beneficiaries, such as those regarding regulatory action does not unduly
proposed regulations. However, these interfere with State, local, and Tribal
regulations make technical changes only discretionary grant programs. The final
regulations pertain to the Department’s governments in the exercise of their
and do not establish substantive policy. governmental functions.
The regulations are, therefore, exempt discretionary grant programs and,
from notice and comment rulemaking therefore, Executive Order 13771 is not Potential Costs and Benefits
under 5 U.S.C. 553(b)(3)(B). applicable. Under Executive Order 12866, we
The APA also generally requires that We have also reviewed these have assessed the potential costs and
regulations be published at least 30 days regulations under Executive Order benefits of this regulatory action and
before their effective date, unless the 13563, which supplements and have determined that these regulations
agency has good cause to implement its explicitly reaffirms the principles, would not impose additional costs. We
regulations sooner (5 U.S.C. 553(d)(3)). structures, and definitions governing believe any additional costs imposed by
Again, because these final regulations regulatory review established in these final regulations will be negligible,
are merely technical, there is good cause Executive Order 12866. To the extent primarily because they reflect technical
to make them effective on the day they permitted by law, Executive Order changes that do not impose additional
are published. 13563 requires that an agency— burden. Moreover, we believe any costs
(1) Propose or adopt regulations only will be significantly outweighed by the
Executive Orders 12866, 13563, and on a reasoned determination that their potential benefits of making necessary
13771 Regulatory Impact Analysis benefits justify their costs (recognizing clarifications and ensuring consistency
Under Executive Order 12866, the that some benefits and costs are difficult among the Education Department
Secretary must determine whether this to quantify); General Administrative Regulations and
regulatory action is ‘‘significant’’ and, (2) Tailor its regulations to impose the section 8101(21) of ESEA, as amended
therefore, subject to the requirements of least burden on society, consistent with by the ESSA.
the Executive order and subject to obtaining regulatory objectives and
review by the Office of Management and taking into account—among other things Regulatory Flexibility Act Certification
Budget (OMB). Section 3(f) of Executive and to the extent practicable—the costs The Secretary certifies that these
Order 12866 defines a ‘‘significant of cumulative regulations; regulations do not have a significant
regulatory action’’ as an action likely to (3) In choosing among alternative economic impact on a substantial
result in a rule that may— regulatory approaches, select those number of small entities.
jstallworth on DSKBBY8HB2PROD with RULES

(1) Have an annual effect on the approaches that maximize net benefits Accessible Format: Individuals with
economy of $100 million or more, or (including potential economic, disabilities can obtain this document in
adversely affect a sector of the economy, environmental, public health and safety, an accessible format (e.g., Braille, large
productivity, competition, jobs, the and other advantages; distributive print, audiotape, or compact disc) on
environment, public health or safety, or impacts; and equity); request to the program contact person
State, local, or Tribal governments or (4) To the extent feasible, specify listed under FOR FURTHER INFORMATION
communities in a material way (also performance objectives, rather than the CONTACT.

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Document Created: 2018-04-27 01:44:46
Document Modified: 2018-04-27 01:44:46

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective date: These regulations are effective April 27, 2018.
Contact		Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W312, Washington, DC 20202- 5900. Telephone: (202) 205-5231 or by email: [email protected]
FR Citation		83 FR 18419
RIN Number		1855-AA13
CFR Citation		34 CFR 75 34 CFR 77
CFR Associated		Accounting; Copyright; Education; Grant Programs-Education; Inventions and Patents; Private Schools; Reporting and Recordkeeping Requirements; Youth Organizations and Incorporation by Reference