[Federal Register Volume 72, Number 46 (Friday, March 9, 2007)]
[Rules and Regulations]
[Pages 10605-10607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4270]


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DEPARTMENT OF EDUCATION

34 CFR Part 280


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 regulations governing the Magnet 
Schools Assistance Program (MSAP) in 34 CFR part 280. These amendments 
allow the MSAP to use an approach similar to that in Sec.  75.200 for 
establishing selection criteria in grant competitions. Under this 
approach the MSAP has 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 
Sec.  75.210, based on statutory provisions in accordance with Sec.  
75.209, or from any combination of these.

DATES: These regulations are effective April 9, 2007.

FOR FURTHER INFORMATION CONTACT: Steven L. Brockhouse, U.S. Department 
of Education, 400 Maryland Avenue, SW., room 4W229, Washington, DC 
20202-5970. Telephone: (202) 260-2476 or via Internet: 
[email protected].
    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 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: On August 22, 2006 the Secretary published a 
notice of proposed rulemaking (NPRM) for these amendments in the 
Federal Register (71 FR 48866).
    In the preamble to the NPRM, the Secretary discussed on pages 48866 
and 48867 the major changes proposed in that document to provide the 
MSAP with the flexibility to use different types of selection criteria 
when evaluating grant applications in a specific grant competition. 
These included the following:
     Amending Sec.  280.30 to give the Secretary the 
flexibility to use selection criteria from Sec.  280.31, from the 
approved menu of general selection criteria in Sec.  75.210 or from 
selection criteria based on statutory provisions governing the MSAP, 
established in accordance with Sec.  75.209.
     Amending Sec.  280.31 to remove the mandatory point values 
from the selection criteria in this section of the MSAP regulations.
    There are no differences between the NPRM and these final 
regulations.

Analysis of Comments

    In response to the Secretary's invitation in the NPRM, nine parties 
submitted comments on the proposed regulations. An analysis of the 
comments follows.
    We discuss substantive issues under the sections of the regulations 
to which they pertain. Generally, we do not address technical and other 
minor changes--and suggested changes the law does not authorize the 
Secretary to make.

Section 280.30 How Does the Secretary Evaluate an Application?

    Comment: Two commenters expressed the opinion that the current 
selection criteria work effectively to address the MSAP's statutory 
purpose and requirements, and consequently that a change in approach to 
permit the use of other selection criteria is not needed at this time.
    Discussion: The Department proposed these changes because we have 
been constrained in past MSAP competitions to using only the program 
selection criteria in Sec.  280.31, whether or not their use continues 
to work well in the

[[Page 10606]]

selection of new projects that are likely to be effective in achieving 
results. This approach limited our ability to tailor the selection 
criteria in a manner that allowed us to take into consideration current 
program needs, new research findings relating to magnet schools, or 
other appropriate information in order to facilitate the selection of 
applications that show the greatest promise of meeting the program's 
statutory purposes.
    The amended regulations provide the flexibility to make adjustments 
to the selection criteria that are used for a particular competition. 
Implementation of this change does not mean that existing selection 
criteria that continue to work effectively in the selection of high-
quality applications for awards will be disregarded or abandoned. In 
fact, it is unlikely that the use of this approach will result in major 
changes from one grant competition to the next. Nonetheless, the 
Department does believe that the flexibility gained in using this 
approach will enable us to more effectively tailor selection criteria 
to ensure projects best address the purpose and requirements of the 
MSAP statute.
    Change: None.
    Comment: Two commenters expressed concerns about the effects of 
different criteria, especially general criteria from EDGAR, and 
indicated that they believed that the use of such criteria would be 
detrimental to the quality of applications.
    Discussion: Any criterion or factor from the approved menu in Sec.  
75.210 must be considered in the context of the MSAP and in conjunction 
with applicable statutory provisions and program regulations. As a 
result, we do not believe that the use of selection criteria or factors 
from Sec.  75.210 will negatively affect program quality.
    Change: None.
    Comment: Two commenters criticized the approach in Sec.  280.30 
because they believed that it would provide too much flexibility to 
manipulate the MSAP's statutory purpose or disregard desegregation-
related factors.
    Discussion: Fears that this approach will allow the Secretary to 
supersede statutory provisions or program requirements are misplaced. 
The Secretary is bound by statutory provisions. In evaluating 
applications, the Department must adhere to selection criteria or other 
provisions related to the evaluation of applications that are required 
by statute and the regulations. In addition, the Department intends to 
use this approach to establish selection criteria in conjunction with 
the statute and program requirements in the MSAP regulations, not 
instead of them.
    Change: None.
    Comment: One commenter criticized the approach in Sec.  280.30 
because the public would not be afforded the opportunity to comment 
formally on the Department's choice of selection criteria for a 
particular competition and another commenter indicated that rulemaking 
for each proposed change or set of changes would be preferable.
    Discussion: The Magnet Schools Assistance Program (MSAP) 
Application for Grants is approved under OMB number 1855-0011. This 
information collection follows the streamlined grant application 
clearance procedures approved under OMB numbers 1890-0001 and 1890-
0006. For special information collection processes such as the use of 
generic grant applications using the EDGAR selection criteria, public 
comment on the information collection is generally solicited at three 
year intervals. The current approval for the MSAP application package 
expires April 30, 2007 and the Department will publish a Federal 
Register notice shortly to solicit comments on that application package 
(1855-0011).
    The Department welcomes comments and suggestions on selection 
criteria, and the application process generally, apart from formal 
opportunities to comment. Potential applicants, grantees, program 
beneficiaries, and others are encouraged to advise the Department about 
their experience with the selection criteria, and to provide 
recommendations for criteria for future competitions at any time, for 
the Department's use in designing selection criteria.
    Moreover, as discussed earlier in these comments, the Department 
believes that this approach provides flexibility to make adjustments to 
the selection criteria that are used for a particular competition and 
that the flexibility gained in using this approach will enable us to 
more effectively tailor selection criteria to help ensure the selection 
of projects that best address the purpose and requirements of the MSAP 
statute.
    Change: None.
    Comment: Other commenters expressed varying views regarding the 
approach in Sec.  280.30 that would give the Secretary the flexibility 
to use selection criteria from the approved menu of general selection 
criteria in Sec.  75.210 or from selection criteria based on statutory 
provisions governing the MSAP, in accordance with Sec.  75.209. One 
commenter indicated that the additional flexibility would be 
beneficial. Three others expressed reservations about this approach, 
but only in the context of whether there would be sufficient time 
available to adequately address any new selection criteria. One other 
commenter also expressed concern that the change would have a 
detrimental effect on planning prior to the announcement of selection 
criteria.
    Discussion: The Secretary does not believe that the new approach 
will prevent potential applicants from beginning to prepare 
applications in advance of an application announcement. Applicants may 
begin work on the basis of statutory purposes and requirements. 
Additionally, it is unlikely that there will be substantial changes in 
the selection criteria used in evaluating applications from one 
competition to the next in the absence of statutory changes that might 
otherwise require more significant revisions. Further, under the 
Paperwork Reduction Act of 1995, an agency must obtain OMB approval to 
require responses to an information collection in less than 30 days. As 
a result, under most circumstances respondents will have a minimum of 
30 days to prepare applications and in most instances an even longer 
period based on past practices. Over the previous four MSAP 
competitions, applicants have actually had a minimum of 42 days from 
the date of publication of the application notice to the application 
due date in which to prepare applications, and an average of more than 
60 days in which to prepare applications over the course of these four 
competitions.
    Change: None.

Section 280.31 What Selection Criteria Does the Secretary Use?

    Comment: Two commenters addressed the amendment to Sec.  280.31 
that removes the mandatory point values from the selection criteria in 
this section of the MSAP regulations. One commenter expressed the 
opinion that removing point values was not a good idea, however the 
commenter offered no explanation of this position. The other commenter 
sought clarification regarding whether a different set of point values 
for selection criteria would be used.
    Discussion: Removing the currently specified point values from the 
selection criteria in Sec.  280.31 does not mean that point values will 
not be used. As set forth in Sec.  280.30(e), there will continue to be 
100 points awarded for the selection criteria. Removing the mandatory 
point values merely provides the flexibility to assign specific point 
values based on the selection criteria actually used in a particular

[[Page 10607]]

competition, consistent with the Department's approach for other 
discretionary grant programs that use selection criteria from Sec.  
75.210 and selection criteria based on the statute, as set forth in 
Sec.  75.209, as well as selection criteria from program regulations.
    Change: None.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of the order we have assessed 
the potential costs and benefits of this regulatory action.
    The potential costs associated with the final 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 these final regulations, we have determined that 
the benefits of the regulations 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

    We summarized the potential costs and benefits of these final 
regulations in the preamble to the NPRM (71 FR 48867).

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 section of the regulations.

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. The objective of the 
Executive order is to foster an intergovernmental partnership and a 
strengthened federalism by relying on processes developed by State and 
local governments for coordination and review of proposed Federal 
financial assistance.
    In accordance with the order, we intend this document to provide 
early notification of the Department's 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: 
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.
    You may also view this document in text or PDF at the following 
site: http://www.ed.gov/programs/magnet/applicant.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.)

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: March 6, 2007.
Morgan S. Brown,
Assistant Deputy Secretary for Innovation and Improvement.


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For the reasons discussed in the preamble, the Assistant Deputy 
Secretary for Innovation and Improvement amends part 280 of title 34 of 
the Code of Federal Regulations as follows:

PART 280--MAGNET SCHOOLS ASSISTANCE PROGRAM

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

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


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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 
use--
    (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 
section.
    (f) The Secretary then awards up to 30 additional points based upon 
the priority factors in Sec.  280.32.

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

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


Sec.  280.31  [Amended]

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3. Section 280.31 is amended:
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A. In the introductory text, by removing the word ``uses'' and adding, 
in its place, the words ``may use''.
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B. In paragraph (a) introductory text, by removing the parenthetical 
``(25 points)''.
0
C. In paragraph (b) introductory text, by removing the parenthetical 
``(10 points)''.
0
D. In paragraph (c) introductory text, by removing the parenthetical 
``(35 points)''.
0
E. In paragraph (d) introductory text, by removing the parenthetical 
``(5 points)''.
0
F. In paragraph (e) introductory text, by removing the parenthetical 
``(15 points)''.
0
G. In paragraph (f) introductory text, by removing the parenthetical 
``(10 points)''.

[FR Doc. E7-4270 Filed 3-8-07; 8:45 am]
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