[Federal Register Volume 81, Number 110 (Wednesday, June 8, 2016)]
[Proposed Rules]
[Pages 36833-36836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13456]


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DEPARTMENT OF EDUCATION

34 CFR Chapter I

[Docket ID ED-2016-OS-0002]
RIN 1875-AA11


Secretary's Proposed Supplemental Priority for Discretionary 
Grant Programs

AGENCY: Department of Education.

ACTION: Proposed priority.

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SUMMARY: The Secretary proposes an additional priority for use in any 
appropriate grant program for fiscal year (FY) 2016 and future years. 
The Secretary proposes to add this priority to the existing 
supplemental priorities and definitions for discretionary grant 
programs that were published in 2014. This priority reflects our 
current policy objectives and emerging needs in education.

DATES: We must receive your comments on or before July 8, 2016.

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 email, or those submitted after the 
comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to 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 regulations.gov.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about the proposed priority, address them 
to Ramin Taheri, U.S. Department of Education, 400 Maryland Avenue SW., 
Room 5E343, Washington, DC 20202-5930.

    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to

[[Page 36834]]

include in their comments only information that they wish to make 
publicly available.


FOR FURTHER INFORMATION CONTACT: Ramin Taheri, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 5E343, Washington, DC 20202. 
Telephone: (202) 453-5961 or by email: [email protected].
    If you use a telecommunications device for the deaf or a text 
telephone, call the Federal Relay Service, toll free, at 1-800-877-
8339.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
this notice. To ensure that your comments have maximum effect in 
developing the notice of final priority, we urge you to identify 
clearly the specific issues that each comment addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from this 
proposed priority. Please let us know of any further ways we could 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of our programs.
    During and after the comment period, you may inspect all public 
comments about this notice by accessing Regulations.gov. You may also 
inspect the comments in person in Room 4W335, 400 Maryland Avenue SW., 
Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., 
Washington, DC time, Monday through Friday of each week except Federal 
holidays.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this notice. If you want to schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.

    Program Authority:  20 U.S.C. 1221e-3.

    Proposed Priority: This notice contains one proposed priority.
    Background: Children living in concentrated poverty face 
significant barriers to learning that contribute to poor outcomes for 
such students in our public schools.\1\ In 2012, nearly one-quarter of 
our Nation's public school students attended schools where more than 75 
percent of students were eligible for free or reduced price lunch; in 
cities, 40 percent of all public school students attend high-poverty 
schools.\2\ Furthermore, most high-poverty schools are located in high-
poverty school districts. Students attending high-poverty schools 
continue to have unequal access to advanced coursework, the best 
teachers, and necessary funding and supports.\3\ Moreover, research 
shows that States with less socioeconomically diverse schools tend to 
have larger achievement gaps between low- and higher-income 
students.\4\ Some communities have begun to address these disparities 
by employing strategies to bring together students from varying 
socioeconomic backgrounds; for example, more than 90 school districts 
and charter-school operators currently use socioeconomic status as a 
consideration in student assignment.\5\
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    \1\ See, e.g., Coleman, James S., Ernest Q. Campbell, Carol J. 
Hobson, James McPartland, Alexander M. Mood, Frederic D. Weinfeld, 
and Robert York. ``Equality of educational opportunity.'' 
Washington, DC (1966): 1066-5684; Rumberger, Russell, and Gregory 
Palardy. ``Does segregation still matter? The impact of student 
composition on academic achievement in high school.'' The Teachers 
College Record 107, no. 9 (2005): 1999-2045; Mulligan, G.M., S. 
Hastedt, and J.C. McCarroll (2012). First-Time Kindergartners in 
2010-11: First Findings From the Kindergarten Rounds of the Early 
Childhood Longitudinal Study, Kindergarten Class of 2010-11 (ECLS-K: 
2011) (NCES 2012-049). U.S. Department of Education. Washington, DC: 
National Center for Education Statistics.
    \2\ National Center for Education Statistics. (2014). Digest of 
Education Statistics, Table 216.6. Available at: http://nces.ed.gov/programs/digest/d14/tables/dt14_216.60.asp.
    \3\ See, e.g., Gray, Lucinda, et al. Educational Technology in 
U.S. Public Schools: Fall 2008 (Apr. 2010) (NCES 2010-034). U.S. 
Department of Education, National Center for Education Statistics, 
available at: http://nces.ed.gov/pubs2010/2010034.pdf; Wells, John, 
and Laurie Lewis. Internet Access in U.S. Public Schools and 
Classrooms: 1994-2005 (November 2006). U.S. Department of Education, 
National Center for Education Statistics, available at: http://nces.ed.gov/pubs2007/2007020.pdf.
    \4\ Mantil, Ann, Anne G. Perkins, and Stephanie Aberger. ``The 
Challenge of High-Poverty Schools: How Feasible Is Socioeconomic 
School Integration?'' The Future of School Integration (2012): 155-
222.
    \5\ Potter, Halley, and Kimberly Quick, with Elizabeth Davies. A 
New Wave of School Integration: Districts and Charters Pursuing 
Socioeconomic Diversity. The Century Foundation, 2016.
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    In addition to the negative effects of concentrated poverty on 
education, many schools and communities continue to suffer the effects 
of racial segregation, and some of our Nation's largest school 
districts remain starkly segregated along both racial and economic 
lines. Accordingly, the Department believes that it is imperative for 
schools, school districts, States, and postsecondary institutions to 
take lawful steps to increase student-body diversity based on race and 
ethnicity. Using the Secretary's existing priority on Promoting 
Diversity, published in the Federal Register on December 10, 2014 (79 
FR 73425), we intend to continue our efforts to reduce racial isolation 
in public schools and to increase racial and ethnic diversity in 
education. In addition, however, given the growing body of research 
showing that socioeconomically diverse schools and communities are 
associated with improved outcomes for disadvantaged children and 
families,\6\ the Department plans to use this proposed priority to 
continue to focus on increasing diversity, including socioeconomic 
diversity, in educational settings.\7\
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    \6\ Schwartz, Heather. ``Housing Policy is School Policy: 
Economically Integrative Housing Promotes Academic Success in 
Montgomery County, Maryland.'' In The Future of School Integration: 
Socioeconomic Diversity as an Education Reform Strategy, edited by 
Richard D. Kahlenberg, 27-65. The Century Foundation, 2012; see also 
Chetty, Raj, Nathaniel Hendren, and Lawrence F. Katz. The Effects of 
Exposure to Better Neighborhoods on Children: New Evidence from the 
Moving to Opportunity Experiment. No. w21156. National Bureau of 
Economic Research, 2015.
    \7\ Increasing socioeconomic diversity, both independently and 
in pursuit of racial diversity, is consistent with guidance, issued 
in 2011 and reaffirmed in 2013 and 2014 by the Department, in 
conjunction with the U.S. Department of Justice, regarding the use 
of race and ethnicity to promote diversity and reduce racial 
isolation. See Guidance on the Voluntary Use of Race to Achieve 
Diversity and Avoid Racial Isolation in Elementary and Secondary 
Schools, available at: http://www.ed.gov/ocr/letters/colleague-201111.pdf; Guidance on Fisher v. University of Texas at Austin, 
available at: http://www.ed.gov/ocr/letters/colleague-201309.pdf; 
and Guidance on Schuette v. Coalition to Defend Affirmative Action, 
et al., available at: http://www.ed.gov/ocr/letters/colleague-201405-schuette-guidance.pdf.
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    Proposed Priority--Increasing Socioeconomic Diversity in Schools.
    Projects that are designed to increase socioeconomic diversity in 
educational settings by addressing one or more of the following:
    (a) Using established survey or data-collection methods to identify 
socioeconomic stratification and related barriers to socioeconomic 
diversity at the classroom, school, district, community, or regional 
level.
    (b) Developing, evaluating, or providing technical assistance on 
evidence-based policies or strategies designed to increase 
socioeconomic diversity in schools.
    (c) Designing or implementing, with community input, education 
funding strategies, such as the use of weighted per-pupil allocations 
of local, State, and eligible Federal funds, to provide incentives for 
schools and districts to increase socioeconomic diversity.
    (d) Developing or implementing policies or strategies to increase

[[Page 36835]]

socioeconomic diversity in schools that--
    (i) Are evidence-based;
    (ii) May be carried out on an intra-district, inter-district, 
community, or regional basis;
    (iii) Demonstrate ongoing, robust family and community involvement, 
including a process for intensive public engagement and consultation;
    (iv) Reflect coordination with other relevant government entities, 
including housing or transportation authorities, to the extent 
practicable;
    (v) May be based on an existing, public diversity plan or diversity 
needs assessment; and
    (vi) May include, for example--
    (A) Establishing school assignment or admissions policies that are 
designed to give preference to low-income students, students from low-
performing schools, or students residing in neighborhoods experiencing 
concentrated poverty to attend higher-performing schools;
    (B) Establishing or expanding schools that are designed to attract 
substantial numbers of students of different socioeconomic backgrounds, 
such as magnet or theme schools, charter schools, or other schools of 
choice.
    Types of Priorities: When inviting applications for a competition 
using one or more priorities, we designate the type of each priority as 
absolute, competitive preference, or invitational through a notice in 
the Federal Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).
    Final Priority: We will announce the final priority in a notice in 
the Federal Register. We will determine the final priority after 
considering responses to this notice and other information available to 
the Department. This notice does not preclude us from proposing 
additional priorities, requirements, definitions, or selection 
criteria, subject to meeting applicable rulemaking requirements.

    Note:  This notice does not solicit applications. In any year in 
which we choose to use this priority, we invite applications through 
a notice in the Federal Register.

Executive Orders 12866 and 13563

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 proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    We have also reviewed this proposed regulatory action 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 upon 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 this proposed priority only on a reasoned 
determination that its benefits would justify its costs. In choosing 
among alternative regulatory approaches, we selected the approach that 
would maximize net benefits. Based on the analysis that follows, the 
Department believes that this regulatory action is consistent with the 
principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from regulatory 
requirements and those we have determined as necessary for 
administering the Department's programs and activities.
    Discussion of Costs and Benefits: The proposed priority would not 
impose significant costs on entities that would receive assistance 
through the Department's discretionary grant programs. Additionally, 
the benefits of implementing the proposal contained in this notice 
outweigh any associated costs because it would result in the 
Department's discretionary grant programs selecting high-quality 
applications to implement activities that reflect the Administration's 
policy focus.
    Application submission and participation in a discretionary grant 
program are voluntary. The Secretary believes that the costs imposed on

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applicants by the proposed priority would be limited to paperwork 
burden related to preparing an application for a discretionary grant 
program that is using the priority in its competition. Because the 
costs of carrying out activities would be paid for with program funds, 
the costs of implementation would not be a burden for any eligible 
applicants, including small entities.
    Regulatory Flexibility Act Certification: For these reasons as 
well, the Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    Intergovernmental Review: Some of the programs affected by this 
proposed priority are 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 these programs.
    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.
    Electronic Access to This Document: 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 via the Federal Digital System 
at: www.gpo.gov/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 Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
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.

John B. King, Jr.,
Secretary of Education.
[FR Doc. 2016-13456 Filed 6-7-16; 8:45 am]
 BILLING CODE 4000-01-P