[Federal Register Volume 69, Number 21 (Monday, February 2, 2004)]
[Rules and Regulations]
[Pages 4995-4998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1950]



  Federal Register / Vol. 69, No. 21 / Monday, February 2, 2004 / Rules 
and Regulations  

[[Page 4995]]


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DEPARTMENT OF EDUCATION

34 CFR Part 280

RIN 1855-AA01


Magnet Schools Assistance Program

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

ACTION: Final regulations.

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SUMMARY: The Secretary amends the Magnet Schools Assistance Program 
(MSAP) regulations to reflect changes made to the Elementary and 
Secondary Education Act of 1965 (ESEA), as amended by the No Child Left 
Behind Act of 2001 (NCLB).

DATES: These regulations are effective March 3, 2004.

FOR FURTHER INFORMATION CONTACT: Steven L. Brockhouse, U.S. Department 
of Education, 400 Maryland Avenue, SW., room 3E122, Washington, DC 
20202-6140. Telephone: (202) 260-2476 or via Internet: 
[email protected].
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) 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 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: These regulations implement changes to the 
MSAP made by the NCLB (Pub. L. 107-110), enacted January 8, 2002. The 
changes align the regulations for the MSAP with the changes made to the 
program when the MSAP was reauthorized as part of the NCLB.
    To reflect revisions to the MSAP's purposes made by section 5301(b) 
of the ESEA, in these final regulations, we make several changes to 
Sec. 280.1 regarding the purpose of the MSAP. First, in Sec. 280.1(a), 
(b) and (c), we clarify the purpose of the MSAP. We also add two new 
paragraphs, Sec. 280.1(e) and (f), regarding the purpose of the MSAP. 
These two paragraphs reflect the addition of support for efforts to 
improve local educational agencies' (LEAs') capacity to continue magnet 
programs at a high performance level after Federal funding ends and for 
efforts to ensure that all students enrolled in magnet schools have 
equitable access to high quality education.
    In accordance with section 5305(b) of the ESEA, we are making 
several changes to Sec. 280.20. Specifically, we revise the assurance 
in Sec. 280.20(b)(2) regarding teacher qualifications and clarify 
requirements in Sec. 280.20(i) concerning student academic achievement. 
In Sec. 280.20(b)(2), we change the assurance related to teachers who 
would be employed, from State-certified or licensed teachers, to 
teachers who are highly qualified in the courses of instruction 
assisted under a grant. Section 280.20(i)(4)(i) adds a requirement that 
an application must include a description of how student academic 
achievement will be improved for all students attending the magnet 
schools included in a project.
    Based on the language in section 5307(b) of the ESEA that describes 
the subject areas and types of skills that may be addressed using MSAP 
funds, we are making only one adjustment to the selection criteria in 
Sec. 280.31. In the ``Project design'' criterion, we have changed Sec. 
280.31(c)(2)(iii) to add ``technological'' and ``professional'' skills 
to the existing list of subjects and skills that may be addressed in a 
magnet program.
    Section 5306 of the ESEA includes only three priorities--addressing 
need for assistance, new or revised magnet schools, and selection of 
students. We remove from Sec. 280.32 two other priorities--one 
addressing innovative approaches and systemic reform (Sec. 280.32(e)) 
and one addressing collaborative efforts (Sec. 280.32(f)).
    Consistent with section 5307(a) and (b) of the ESEA, we are making 
several changes to Sec. 280.40. In Sec. 280.40(a), we clarify that 
professional development costs are not considered planning costs that 
are subject to the restrictions in Sec. 280.41(a). Further, both Sec. 
280.40(b) and (c) clarify that funds used for books, materials, 
equipment, and teachers must be directly related to improving student 
academic achievement based on the State's challenging academic content 
standards and student achievement standards. Additionally, we amend 
Sec. 280.40 by adding three new paragraphs, Sec. 280.40(f) through (h). 
These paragraphs specifically authorize activities to build capacity to 
operate the magnet programs after the grant ends, enable magnet schools 
to serve students who enrolled in the school but not in the magnet 
program at the school, and permit flexibility in designing magnet 
schools.
    Finally, in accordance with section 5309(b) of the ESEA, we revise 
Sec. 280.41 to adjust the amount of funds that may be used for planning 
in each year of a project and remove the prohibition against the use of 
funds for planning after the third year that had been in Sec. 
280.41(d).

Executive Order 12866

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 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 justify the costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Summary of Potential Costs and Benefits

    Because the Secretary has chosen to regulate only to the extent 
necessary to reflect changes made to the ESEA, as amended by the NCLB, 
LEAs have considerable flexibility in implementing the provisions of 
the MSAP. Consequently, the potential costs associated with the 
regulations are minimal. Benefits of the regulations include the 
addition of new uses of funds that provide LEAs greater latitude in the 
design of projects, the removal of restrictions on the amount of funds 
that may be used for professional development, greater flexibility in 
the use of funds for planning activities, and elimination of obsolete 
priorities.

Waiver of Proposed Rulemaking

    Under the Administrative Procedure Act (5 U.S.C. 553) the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, these regulations merely 
reflect statutory changes to the ESEA and remove obsolete regulatory 
provisions. The changes do not establish or affect substantive policy. 
Therefore, under 5 U.S.C. 553(b)(B) the Secretary has determined that 
proposed regulations are unnecessary and contrary to the public 
interest.

Regulatory Flexibility Act Certification

    The Secretary certifies that these regulations will not have a 
significant economic impact on a substantial number of small entities. 
The small entities that are affected by these regulations are small 
local educational agencies (LEAs) receiving Federal funds under this 
program. However, the regulations will not have a significant economic 
impact on the small LEAs

[[Page 4996]]

affected because the regulations do not impose excessive regulatory 
burdens or require unnecessary Federal supervision. The regulations 
impose minimal requirements to ensure the proper expenditure of program 
funds.

Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control number assigned to the 
collection of information in these final regulations at the end of the 
affected sections of the regulations.

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

    Based on our own review, we have determined that these regulations 
do not 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: 
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.
    You may also view this document in PDF at the following site: 
http://www.ed.gov/programs/magnet/index.html.

    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 Number 84.165A Magnet 
Schools Assistance Program.)

    The Secretary of Education has delegated authority to the Deputy 
Under Secretary for Innovation and Improvement to issue these 
amendments to 34 CFR chapter II.

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: January 27, 2004.
Nina Shokraii Rees,
Deputy Under Secretary for Innovation and Improvement.

0
For the reasons discussed in the preamble, the Secretary amends part 
280 of title 34 of the Code of Federal Regulations as follows:

PART 280--MAGNET SCHOOLS ASSISTANCE PROGRAM

0
1. The authority citation for part 280 is revised to read as follows:

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


0
2. Section 280.1 is amended by:
0
A. In the introductory text, removing the punctuation ``,:'' and 
adding, in its place, the punctuation ``--''.
0
B. In paragraph (a), adding the words ``, which shall include assisting 
in the efforts of the United States to achieve voluntary desegregation 
in public schools'' before the punctuation ``;''.
0
C. Revising paragraphs (b) and (c).
0
D. In paragraph (d), removing the word ``grasp'' and adding, in its 
place, the word ``attainment''; adding the words ``, technological, and 
professional'' after the word ``vocational''; and removing the period 
at the end of the paragraph and adding, in its place, the punctuation 
``;''.
0
E. Adding new paragraphs (e) and (f).
0
F. Revising the authority citation following paragraph (f).
    The revisions and additions read as follows:


Sec. 280.1  What is the Magnet Schools Assistance Program?

* * * * *
    (b) The development and implementation of magnet school projects 
that will assist LEAs in achieving systemic reforms and providing all 
students the opportunity to meet challenging State academic content 
standards and student academic achievement standards;
    (c) The development and design of innovative educational methods 
and practices that promote diversity and increase choices in public 
elementary schools and public secondary schools and public educational 
programs;
* * * * *
    (e) Improvement of the capacity of LEAs, including through 
professional development, to continue operating magnet schools at a 
high performance level after Federal funding for the magnet schools is 
terminated; and
    (f) Ensuring that all students enrolled in the magnet school 
programs have equitable access to high quality education that will 
enable the students to succeed academically and continue with 
postsecondary education or productive employment.

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


0
3. Section 280.2 is amended by revising the authority citation 
following paragraph (b) to read as follows:


Sec. 280.2  Who is eligible to apply for a grant?

* * * * *

(Authority: 20 U.S.C. 7231c)


0
4. Section 280.3 is amended by:
0
A. In paragraph (a), removing the words ``except that Sec. 75.253(c) 
(relating to reducing a subsequent year's award by the amount remaining 
available from the grantee's current award) does not apply to this 
program,''; and by removing the words ``(Uniform Administrative 
Requirements for State and Local Governments)'' and adding, in their 
place, the words ``(Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments)''.
0
B. Revising the authority citation following paragraph (b) to read as 
follows:


Sec. 280.3  What regulations apply to this program?

* * * * *

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


0
5. Section 280.4 is amended by:
0
A. In paragraph (a), removing the words ``Award'', ``Grant'', and 
``Supplies''.
0
B. In paragraph (b), revising the definitions of ``Act'' and ``Magnet 
school''.
0
C. Revising the authority citation following paragraph (b).
    The revisions read as follows:


Sec. 280.4  What definitions apply to this program?

* * * * *
    (b) * * *
    Act means the Elementary and Secondary Education Act of 1965 as 
amended by title V, Part C of the No

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Child Left Behind Act of 2001, Pub. L. 107-110 (20 U.S.C. 7231-7231j).
* * * * *
    Magnet school means a public elementary school, public secondary 
school, public elementary education center, or public secondary 
education center that offers a special curriculum capable of attracting 
substantial numbers of students of different racial backgrounds.
* * * * *

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


0
6. Section 280.20 is amended by:
0
A. In paragraph (b)(1), removing the figure ``5102'' and adding, in its 
place, the figure ``5301(b)''.
0
B. In paragraph (b)(2), adding the words ``highly qualified'' after the 
word ``employ'' and removing the words ``who are certified or licensed 
by the State to teach, or supervise others who are teaching, the 
subject matter of the courses of instruction''.
0
C. In paragraph (b)(7), removing the first occurrence of the word 
``projects'' and adding, in its place, the word ``program''; and 
removing the words ``those projects'', and adding, in their place, the 
words ``the program, consistent with desegregation guidelines and the 
capacity of the applicant to accommodate students''.
0
D. In paragraph (i)(1), removing the word ``project'' and adding, in 
its place, the word ``programs''.
0
E. In paragraph (i)(2), adding the word ``academic'' after the word 
``student''.
0
F. Revising paragraphs (i)(3) and (i)(4).
0
G. In paragraph (i)(5), removing the word ``projects'' and adding, in 
its place, the word ``program''.
0
H. Revising the OMB approval parenthetical and the authority citation 
following paragraph (i).
    The revisions read as follows:


Sec. 280.20  How does one apply for a grant?

* * * * *
    (i) * * *
    (3) How the LEA or consortium of LEAs will continue the magnet 
schools program after assistance under this part is no longer 
available, including, if applicable, why magnet schools previously 
established or supported with Magnet Schools Assistance Program grant 
funds cannot be continued without the use of funds under this part;
    (4) How assistance will be used to--
    (i) Improve student academic achievement for all students attending 
the magnet school programs; and
    (ii) Implement services and activities that are consistent with 
other programs under the Act and other statutes, as appropriate; and
* * * * *

(Approved by the Office of Management and Budget under control 
number 1855-0011)

(Authority: 20 U.S.C. 7231d)


0
7. Section 280.30 is amended by:
0
A. In paragraph (c), removing the figure ``45'' and adding, in its 
place, the figure ``30''.
0
B. Revising the authority citation following paragraph (c) to read as 
follows:


Sec. 280.30  How does the Secretary evaluate an application?

* * * * *

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


0
8. Section 280.31 is amended by:
0
A. In paragraph (c)(2)(iii), adding the words ``to improving'' after 
the second occurrence of the word ``or'' and adding the words ``, 
technological, and professional'' after the word ``vocational''.
0
B. Revising the OMB approval parenthetical and the authority citation 
following paragraph (f) to read as follows:


Sec. 280.31  What selection criteria does the Secretary use?

* * * * *

(Approved by the Office of Management and Budget under control 
number 1855-0011)

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


0
9. Section 280.32 is amended by:
0
A. In paragraph (a), removing the words ``through (f)'' and adding, in 
their place, the words ``through (d)''.
0
B. Removing paragraphs (e) and (f).
0
C. Revising the authority citation following paragraph (d) to read as 
follows:


Sec. 280.32  How is priority given to applicants?

* * * * *

(Authority: 20 U.S.C. 7231e)


0
10. Section 280.33 is amended by revising the authority citation 
following paragraph (b) to read as follows:


Sec. 280.33  How does the Secretary select applications for new grants 
with funds appropriated in excess of $75 million?

* * * * *

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


0
11. Section 280.40 is amended by:
0
A. In paragraph (a), removing the words ``and (d)'' and adding, in 
their place, the words ``and do not include activities described under 
paragraph (f) of this section''.
0
B. In the introductory text of paragraph (b), removing the word 
``thereof'' and adding, in its place, the words ``of materials, 
equipment and computers''.
0
C. In paragraph (b)(2), removing the word ``the'' and adding, in its 
place, the words ``student academic achievement based on the State's 
challenging academic content standards and student academic achievement 
standards or directly related to improving student''; and adding the 
words ``, technological, or professional'' after the word 
``vocational''.
0
D. In paragraph (c)(1), removing the words ``certified or licensed by 
the State'' and adding, in their place, the words ``highly qualified''.
0
E. In paragraph (c)(3), removing the word ``the'' and adding, in its 
place, the words ``student academic achievement based on the State's 
challenging academic content standards and student academic achievement 
standards or directly related to improving student''; and adding the 
words ``, technological, or professional'' after the word 
``vocational''.
0
F. Adding new paragraphs (f), (g), and (h).
0
G. Revising the authority citation following paragraph (h).
    The additions and revision read as follows:


Sec. 280.40  What costs are allowable?

* * * * *
    (f) Activities, which may include professional development, that 
will build the recipient's capacity to operate magnet school programs 
once the grant period has ended.
    (g) Activities to enable the LEA or consortium of LEAs to have more 
flexibility in the administration of a magnet school program in order 
to serve students attending a school who are not enrolled in a magnet 
school program.
    (h) Activities to enable the LEA or consortium of LEAs to have 
flexibility in designing magnet schools for students in all grades.

(Authority: 20 U.S.C. 7231f)


0
12. Section 280.41 is amended by:
0
A. Revising paragraph (a).
0
B. In paragraph (b), adding the word ``or'' after the punctuation 
``;''.
0
C. In paragraph (c), removing the word ``; or'' and adding, in its 
place, the punctuation ``.''.
0
D. Removing paragraph (d).
0
E. Revising the authority citation following paragraph (c).
    The revisions read as follows:


Sec. 280.41  What are the limitations on allowable costs?

    * * *
    (a) Expend for planning more than 50 percent of the funds received 
for the

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first fiscal year, and 15 percent of the funds received for the second 
or the third fiscal year;
* * * * *

(Authority: 20 U.S.C. 7231g, 7231h(b))

[FR Doc. 04-1950 Filed 1-30-04; 8:45 am]
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