[Federal Register: November 25, 2008 (Volume 73, Number 228)]
[Proposed Rules]               
[Page 71572-71575]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no08-28]                         

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DEPARTMENT OF EDUCATION

34 CFR Part 385

RIN 1820-AB61
[Docket ID ED-2008-OSERS-0010]

 
Rehabilitation Training

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing the 
Rehabilitation Training Program. The amendment is needed to clarify the 
membership of advisory committees for projects funded under this 
program.

DATES: We must receive your comments on or before December 26, 2008.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to http://
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 ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about the proposed regulation, address 
them to Ruth Brannon, U.S. Department of Education, 400 Maryland 
Avenue, SW., room 5052, Potomac Center Plaza (PCP), Washington, DC 
20202-2800.

    Privacy Note: The Department's policy for comments received from 
members of the public (including those comments submitted by mail, 
commercial delivery, or hand

[[Page 71573]]

delivery) is to make these submissions available for public viewing 
in their entirety on the Federal eRulemaking Portal at http://
www.regulations.gov Therefore, commenters should be careful to 
include in their comments only information that they wish to make 
publicly available on the Internet.


FOR FURTHER INFORMATION CONTACT: Ruth Brannon. Telephone: (202) 245-
7278 or via Internet: ruth.brannon@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding the proposed regulation. 
We invite you to assist us in complying with the specific requirements 
of Executive Order 12866 and its overall requirement of reducing 
regulatory burden that might result from this proposed regulation. 
Please let us know of any further opportunities we should take to 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about the proposed regulation by accessing Regulations.gov You 
may also inspect the comments, in person, in room 5053, Potomac Center 
Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 
a.m. and 4 p.m., Eastern time, Monday through Friday of each week 
except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for the proposed regulation. If you want to schedule 
an appointment for this type of aid, please contact the person listed 
under FOR FURTHER INFORMATION CONTACT.

Background

    Current 34 CFR 385.40 lists members of minority groups as one of 
the categories of mandatory participants on advisory committees for 
projects funded under the Rehabilitation Training Program. We propose 
to amend Sec.  385.40 by removing the requirement that a grantee 
include members of minority groups on its project advisory committee 
and adding a requirement that a grantee include individuals who are 
knowledgeable about the needs of individuals with disabilities from 
diverse groups, including minority groups.
    These proposed changes would make 34 CFR 385.40 consistent with the 
Supreme Court ruling in Adarand Constructors, Inc. v. Pena, 515 U.S. 
200 (1995), in which the Court held that classifications based upon 
race or national origin are consistent with equal protection 
requirements of the Constitution only if they are narrowly tailored 
measures that further compelling governmental interests. The Secretary 
believes that current Sec.  385.40 is not consistent with the equal 
protection requirements because it constitutes a quota based upon race 
or national origin that is not narrowly tailored in a manner that 
furthers a compelling government interest.
    Thus, these proposed changes are necessary to ensure that grantees 
do not select individuals to serve on project advisory committees on 
the basis of their race or national origin. These changes also would 
add a new requirement that project advisory committees have members who 
are knowledgeable about the needs of individuals with disabilities from 
diverse groups, including minority groups. This new requirement would 
ensure that the committees have broader knowledge of the diverse range 
of needs of individuals with disabilities.

Significant Proposed Regulations

    We discuss here the substantive issues regarding the proposed 
changes. Generally, we do not address proposed regulatory provisions 
that are technical or otherwise minor in effect.

Section 385.40 What are the requirements pertaining to the membership 
of a project advisory committee?

    Statute: Section 302 of the Rehabilitation Act of 1973, as amended 
(29 U.S.C. 772), authorizes the Department to provide grants to 
eligible entities to increase the numbers and upgrade the skills of 
qualified rehabilitation personnel. Under this authority, the 
Department implements the Rehabilitation Training Program.
    Current Regulation: Current Sec.  385.40 requires that, if a 
project funded under 34 CFR parts 386 through 390 or part 396 (the 
Rehabilitation Training Program) establishes an advisory committee, its 
membership must include individuals with disabilities or parents, 
family members, guardians, advocates, or other authorized 
representatives of the individuals; members of minority groups; 
trainees; and providers of vocational rehabilitation and independent 
living rehabilitation services.
    Proposed Regulation: Proposed Sec.  385.40 would remove ``members 
of minority groups'' and add ``individuals who are knowledgeable about 
the needs of individuals with disabilities from diverse groups, 
including minority groups.''
    Reasons: The proposed changes would make clear that grantees cannot 
select project advisory committee members on the basis of their race or 
national origin. The proposed changes also would achieve the 
Department's objective for project advisory committees to include 
individuals who are knowledgeable about the needs of individuals with 
disabilities from diverse groups. Grantees would be able to select 
individuals, including individuals who are members of minority groups, 
as advisory committee members if they possess knowledge of the needs of 
individuals with disabilities from diverse groups or meet one of the 
other membership requirements in Sec.  385.40. By no longer 
constituting a quota based upon race or national origin, this 
requirement is consistent with the Adarand case and the equal 
protection requirements of the Constitution.

Executive Order 12866

    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 review by 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) create novel 
legal or policy issues

[[Page 71574]]

arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive order. The Secretary has 
determined that this regulatory action is not significant under the 
Executive order.

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action. The benefits accruing to the 
Rehabilitation Training Program resulting from this proposed amendment 
outweigh the costs of making the changes. The proposed regulation would 
benefit grantees by requiring advisory committees to have members who 
are knowledgeable about the needs of individuals with disabilities, 
thereby making the committee a more effective advisor to the grantee. 
The requirement to select committee members with knowledge of the needs 
of individuals with disabilities from diverse groups would not impose a 
cost the grantee would not otherwise incur in the process of creating 
an advisory committee.
    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.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make the proposed 
regulation easier to understand, including answers to questions such as 
the following:
     Are the requirements in the proposed regulation clearly 
stated?
     Does the proposed regulation contain technical terms or 
other wording that interferes with its clarity?
     Does the format of the proposed regulation (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
its clarity?
     Would the proposed regulation be easier to understand if 
we divided it into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  385.40.)
     Could the description of the proposed regulation in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulation easier to understand? If so, how?
     What else could we do to make the proposed regulation 
easier to understand?
    To send any comments that concern how the Department could make the 
proposed regulation easier to understand, see the instructions in the 
ADDRESSES section of this preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that the proposed regulation would not have 
a significant economic impact on a substantial number of small 
entities. The proposed regulation would affect States and public or 
nonprofit agencies and organizations, including Indian tribes and 
institutions of higher education, that are eligible to receive funding 
under the Rehabilitation Training Program. Some of these entities would 
be considered small entities according to the U.S. Small Business 
Administration Size Standards. However, the changes in the proposed 
regulation would not have a significant economic impact on applicants 
in terms of the cost of establishing a project advisory committee under 
this program.

Paperwork Reduction Act of 1995

    The proposed regulation does not contain any information collection 
requirements.

Intergovernmental Review

    This program is subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.

Assessment of Educational Impact

    In accordance with section 441 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether the proposed regulation would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC area at (202) 512-1530.


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/
nara/index.html.

    (Catalog of Federal Domestic Assistance Numbers: 84.129 Long 
Term Training; 84.275 Special Programs, National Clearinghouse of 
Rehabilitation Training Materials; 84.264 Rehabilitation Continuing 
Education Programs; 84.160 Training of Interpreters for Deaf 
Individuals; 84.265 In-Service Training; 84.246 Short Term Training; 
84.263 Experimental and Innovative Training; 84.246 Special 
Programs, Client Assistance Program Training; 84.315 Capacity 
Building Projects for Traditionally Underserved Populations.)

List of Subjects in 34 CFR Part 385

    Education, Grant programs--education, Reporting and recordkeeping 
requirements, Vocational rehabilitation.

    Dated: November 20, 2008.
Tracy R. Justesen,
Assistant Secretary for Special Education and Rehabilitative Services.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 385 of title 34 of the Code of Federal Regulations as 
follows:

PART 385--REHABILITATION TRAINING

    1. The authority citation for part 385 is revised to read as 
follows:

    Authority: 29 U.S.C. 709(c) and 772, unless otherwise noted.

    2. Section 385.40 is revised to read as follows:


Sec.  385.40  What are the requirements pertaining to the membership of 
a project advisory committee?

    If a project funded under 34 CFR parts 386 through 390 or 34 CFR 
part 396 establishes an advisory committee, its membership must include 
individuals with disabilities or parents, family members, guardians, 
advocates, or other authorized representatives of the individuals; 
individuals who are knowledgeable about the needs of individuals with 
disabilities from diverse groups, including minority groups; trainees; 
and providers of vocational rehabilitation and independent living 
rehabilitation services.


[[Page 71575]]


(Authority: Sec. 12(c) of the Act; 29 U.S.C. 709(c))
 [FR Doc. E8-28010 Filed 11-24-08; 8:45 am]

BILLING CODE 4000-01-P