FR Doc E6-13795
[Federal Register: August 22, 2006 (Volume 71, Number 162)]
[Proposed Rules]               
[Page 48866-48868]
From the Federal Register Online via GPO Access []

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34 CFR Part 280

Magnet Schools Assistance Program

AGENCY: Office of Innovation and Improvement, Department of Education.

ACTION: Notice of proposed rulemaking.


SUMMARY: The Secretary proposes to amend the regulations governing the 
Magnet Schools Assistance Program (MSAP) in 34 CFR part 280. These 
proposed amendments would allow the MSAP to use an approach similar to 
that in 34 CFR 75.200 for establishing selection criteria in grant 
competitions. Under this approach the MSAP would have the flexibility 
to use selection criteria from its program regulations, from the menu 
of general selection criteria in the Education Department General 
Administrative Regulations (EDGAR) in 34 CFR 75.210, based on statutory 
provisions in accordance with 34 CFR 75.209, or from any combination of 

DATES: We must receive your comments on or before September 21, 2006.

ADDRESSES: Address all comments about these proposed regulations to 
Steven L. Brockhouse, U.S. Department of Education, 400 Maryland 
Avenue, SW., room 4W229, Washington, DC 20202-5970. If you prefer to 
send your comments through the Internet, you may address them to us at 
the U.S. Government Web site:

    Or you may send your Internet comments to us at the following 
    You must include the term ``MSAP NPRM'' in the subject line of your 
electronic message.

FOR FURTHER INFORMATION CONTACT: Steven L. Brockhouse. Telephone: (202) 
260-2476 or via Internet:
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may 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 


Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    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 these proposed 
regulations. 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 these proposed regulations in room 4W229, 400 Maryland 
Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 
p.m., Eastern time, Monday through Friday of each week except Federal 

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 

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


    On March 6, 1997, the Secretary published final regulations (62 FR 
10398) amending the provisions of EDGAR governing discretionary grant 
programs administered directly by us. These amendments established an 
approach by which the Secretary could use different types of selection 
criteria when evaluating a grant application. Specifically, Sec.  
75.200 was amended to permit the Secretary to use selection criteria 
based on statutory provisions in accordance with 34 CFR 75.209, 
selection criteria in program-specific regulations, selection criteria 
established under 34 CFR 75.210, or any combination of these. Section 
75.210 provides a menu of selection criteria. For a competition, the 
Secretary selects from the menu one or more criteria that best enable 
us to identify the highest-quality applications consistent with the 
program purpose, statutory requirements, and any priorities 
established. Within each criterion, the Secretary may further define 
the criterion by selecting one or more specific factors.
    At the time that these final regulations were published, we also 
amended, through notice and comment rulemaking, the regulations for a 
number of Department programs that contained program-specific selection 
criteria, so that these programs could use the criteria in 34 CFR 
75.210, criteria based on statutory provisions, or the criteria in 
their program regulations for grant competitions. The MSAP regulations 
were not amended at that time.
    This notice of proposed rulemaking would conform the MSAP 
regulations to those of the majority of other discretionary grant 
programs in the Department. We believe that by expanding the range of 
selection criteria that could be used in a specific grant competition, 
we will be able to administer the MSAP more effectively to best meet 
the program's statutory purposes and requirements and to better ensure 
that MSAP projects are effectively integrated with State and local 
reform activities.
    We intend that the MSAP will use the selection criteria in 34 CFR 
75.210 in conjunction with criteria based on the statute and in the 

[[Page 48867]]

regulations, not instead of them. In selecting a set of criteria and 
factors for a particular competition from among the selection criteria 
in the MSAP regulations and 34 CFR 75.210, or in establishing selection 
criteria based on statutory provisions governing the MSAP as described 
in 34 CFR 75.209, the Secretary would not solicit formal public comment 
but could draw on input from grantees and program beneficiaries; 
feedback from previous peer reviewers and program evaluators; 
discussions among Department employees, grantees, and program 
beneficiaries; and meetings, conferences, visits to grantees, and other 
forms of outreach and exchange with the relevant communities. We 
believe applicants would find that criteria selected in this manner for 
specific competitions would provide them with adequate guidance about 
review standards, and also with flexibility to design and propose the 
projects that they believe best serve their needs.
    The Secretary is particularly interested in comments from potential 
grant applicants and intended program beneficiaries on this proposed 
approach. Do applicants or program beneficiaries support this approach? 
Are there any costs associated with shifting from using selection 
criteria tailored to individual programs to using a flexible menu of 
general selection criteria? If yes, what are those costs and does the 
benefit of the added flexibility of the proposed approach justify the 
costs? Would these proposed amendments have other effects?

Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 

Section 280.30 How does the Secretary Evaluate an Application?

    Current Regulations: The current regulatory provisions in Sec.  
280.30 describe the way in which applications are evaluated by using 
the selection criteria in Sec.  280.31 and the priorities described in 
Sec.  280.32.
    Proposed Regulations: Proposed Sec.  280.30 would give the 
Secretary the flexibility to use selection criteria from Sec.  280.31, 
from the approved menu of general selection criteria in 34 CFR 75.210 
or from selection criteria based on statutory provisions governing the 
MSAP, established in accordance with 34 CFR 75.209. The Secretary also 
could use any combination of selection criteria from these sources. We 
would announce the selection criteria and the weighting factor for each 
criterion in the Federal Register notice announcing a grant competition 
for the MSAP.
    Reasons: The Secretary believes that this change is necessary in 
order to provide the MSAP the same flexibility that is afforded many of 
the Department's discretionary grant programs in tailoring the 
selection criteria to be used to evaluate applications in a manner that 
helps to achieve results consistent with a program's statutory purpose. 
Additionally, this approach enables us to take into consideration 
current program needs, new research findings that relate to magnet 
schools, or other appropriate information in order to facilitate the 
selection of applications that show the greatest promise of effectively 
meeting the statutory purposes of the MSAP. Without this change, the 
MSAP would be limited to using only the selection criteria and factors 
in current Sec.  280.31, whether or not their use continues to work 
well in the selection of new projects that are likely to be effective 
in achieving results.
    An alternative approach would have been to propose specific changes 
to the selection criteria for the MSAP in Sec.  280.31. We consider 
this approach less desirable because it would require new rulemaking 
every time that a change is made in the selection criteria, however 
modest that change might be. Such an approach would, of necessity, be 
time consuming and as a practical matter would restrict rather than 
enhance flexibility in considering input from sources such as school 
districts that are implementing magnet school programs, researchers, 
evaluators, policymakers, and others.

Section 280.31 What Selection Criteria does the Secretary Use?

    Current Regulations: The current regulations assign specific, 
mandatory point values to the selection criteria.
    Proposed Regulations: The proposed regulations would remove these 
mandatory point values from the selection criteria.
    Reasons: Removing the mandatory point values provides the Secretary 
flexibility to select specific point values from year to year to 
address program requirements and is consistent with the Department's 
approach for other discretionary grant programs that use selection 
criteria from 34 CFR 75.210 and selection criteria based on the 
statute, as set forth in 34 CFR 75.209, as well as selection criteria 
from program regulations.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for administering this program effectively 
and efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs.
    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.
Summary of Potential Costs and Benefits
    These proposed regulations affect only local educational agencies 
(LEAs) that are applying for assistance under the MSAP. The proposed 
regulations create flexibility for us to use selection criteria other 
than those in Sec.  280.31 for a MSAP grant competition. We believe 
that any criterion from 34 CFR 75.209 or 34 CFR 75.210 that would be 
used in a future grant competition would not impose a financial burden 
that LEAs would not otherwise incur in the development and submission 
of a grant application under the MSAP and, under some circumstances, 
could reduce the financial burden of preparing a MSAP grant application 
by a modest amount if, for example, the use of this flexibility 
resulted in fewer criteria or factors to be addressed in a grant 

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 these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol

[[Page 48868]]

``Sec.  '' and a numbered heading; for example, Sec.  280.30 How does 
the Secretary evaluate an application?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
    Small entities affected by these proposed regulations are small 
LEAs applying for Federal funds under this program. The changes will 
not have a significant economic impact on these LEAs in terms of the 
cost of applying for a MSAP grant.

Paperwork Reduction Act of 1995

    These proposed regulations do 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.

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:

    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.
    You may also view this document in text or PDF at the following 

    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:

(Catalog of Federal Domestic Assistance Number 84.165A Magnet 
Schools Assistance Program.)

List of Subjects in 34 CFR Part 280

    Civil rights, Desegregation, Education, Elementary and secondary 
education, Grant programs-education, Magnet schools, Reporting and 
recordkeeping requirements.

    Dated: August 16, 2006.
Morgan S. Brown,
Assistant Deputy Secretary, for Innovation and Improvement.
    For the reasons discussed in the preamble, the Assistant Deputy 
Secretary for Innovation and Improvement proposes to amend part 280 of 
title 34 of the Code of Federal Regulations as follows:


    1. The authority citation for part 280 continues to read as 

    Authority: 20 U.S.C. 7231-7231j, unless otherwise noted.

    2. Section 280.30 is revised to read as follows:

Sec.  280.30  How does the Secretary evaluate an application?

    (a) The Secretary evaluates an application under the procedures in 
34 CFR part 75 and this part.
    (b) To evaluate an application for a new grant the Secretary may 
    (1) Selection criteria established under 34 CFR 75.209;
    (2) Selection criteria in Sec.  280.31;
    (3) Selection criteria established under 34 CFR 75.210; or
    (4) Any combination of criteria from paragraphs (b)(1), (b)(2), and 
(b)(3) of this section.
    (c) The Secretary indicates in the application notice published in 
the Federal Register the specific criteria that the Secretary will use 
and how points for the selection criteria will be distributed.
    (d) The Secretary evaluates an application submitted under this 
part on the basis of criteria described in paragraph (c) of this 
section and the priority factors in Sec.  280.32.
    (e) The Secretary awards up to 100 points for the extent to which 
an application meets the criteria described in paragraph (c) of this 
    (f) The Secretary then awards up to 30 additional points based upon 
the priority factors in Sec.  280.32.

(Authority: 20 U.S.C. 7231-7231j)

Sec.  280.31  [Amended]

    3. Section 280.31 is amended:
    A. In the introductory text, by removing the word ``uses'' and 
adding, in its place, the words ``may use''.
    B. In paragraph (a) introductory text, by removing the 
parenthetical ``(25 points)''.
    C. In paragraph (b) introductory text, by removing the 
parenthetical ``(10 points)''.
    D. In paragraph (c) introductory text, by removing the 
parenthetical ``(35 points)''.
    E. In paragraph (d) introductory text, by removing the 
parenthetical ``(5 points)''.
    F. In paragraph (e) introductory text, by removing the 
parenthetical ``(15 points)''.
    G. In paragraph (f) introductory text, by removing the 
parenthetical ``(10 points)''.

 [FR Doc. E6-13795 Filed 8-21-06; 8:45 am]