[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)]
[Rules and Regulations]
[Pages 63099-63102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22104]


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DEPARTMENT OF EDUCATION

34 CFR Chapter I

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


Secretary's Final Supplemental Priority for Discretionary Grant 
Programs

AGENCY: Department of Education.

ACTION: Final priority.

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SUMMARY: To further support a comprehensive education agenda and to 
address concentrated poverty and related segregation in our Nation's 
schools, the Secretary of Education establishes an additional priority 
primarily for use in any discretionary grant program focused on 
elementary and secondary education, as appropriate, for fiscal year 
(FY) 2016 and future years. The Secretary adds this priority to the 
existing supplemental priorities and definitions for discretionary 
grant programs that were published in the Federal Register on December 
10, 2014 (2014 Supplemental Priorities). This priority reflects our 
efforts to address emerging needs in education.

DATES: This supplemental priority is effective October 14, 2016.

FOR FURTHER INFORMATION CONTACT: Ramin Taheri, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 5E343, Washington, DC 20202-
5930. Telephone: (202) 453-5961 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:

    Program Authority: 20 U.S.C. 1221e-3, 3474.

    We published a notice of proposed priority (NPP) in the Federal 
Register on June 8, 2016 (81 FR 36833). That document contained 
background information and our reasons for proposing the additional 
priority.
    Public Comment: In response to our invitation in the NPP, 13 
parties submitted comments on the proposed priority.
    Analysis of Comments and Changes: An analysis of the comments 
follows. We group our discussion according to the general issues 
raised. We do not address technical and other minor changes.
    Comment: Several commenters expressed concern that the proposed 
priority would adversely affect rural communities and students who 
reside within them, where the geographic isolation of students from one 
particular racial, ethnic, or socioeconomic group would render efforts 
to diversify schools difficult or impossible. Many of these commenters 
expressed support for the priority and the importance of addressing the 
growing segregation and inequality in our Nation's schools, but 
suggested that the Department use the priority as an invitational 
priority, as opposed to a competitive preference or absolute priority, 
to ensure that rural applicants are not unfairly disadvantaged in grant 
competitions.
    Discussion: We appreciate the commenters' concern that the priority 
may not be appropriate or beneficial for rural communities whose 
geographical constraints make increasing socioeconomic diversity 
infeasible. First, we note that increasing educational equity for rural 
students and communities is a focus area for the Department of 
Education (the Department); for example, Priority 4--Supporting High-
Need Students from the 2014 Supplemental Priorities includes language 
that allows the Department to prioritize projects designed to improve 
outcomes for students served by rural local educational agencies 
(LEAs).
    Second, we acknowledge that solutions to educational challenges are 
often different in rural, urban, and suburban communities. We note, 
however, that the Department has discretion in how and when it will use 
this priority (including whether to use it as an invitational or other 
type of priority), and does not intend to use this priority in a way 
that would disadvantage rural applicants. Rather, it is our intention 
to use this priority strategically to encourage diversity only in those 
situations where we believe such efforts are most appropriate and best 
support the possibility of increasing socioeconomic diversity in 
schools.
    Changes: None.
    Comment: In addition to concerns related to geographically 
isolated, rural communities, many commenters raised questions regarding 
the utility of the priority in Indian country. Specifically, these 
commenters expressed concerns about how the priority would affect 
American Indian or Alaska Native students who attend schools in rural 
areas, on tribal lands that are

[[Page 63100]]

geographically isolated, or in villages or communities that are not 
accessible, legally or physically, to students who are not members of a 
particular American Indian or Alaska Native tribe. One commenter 
suggested the Department can protect against unintended negative 
impacts on Native students by including a race-based preference 
whenever using the priority for socioeconomic diversity.
    Discussion: We understand and appreciate the concerns raised with 
respect to Native students and their communities. As with rural LEAs, 
however, the Department believes that the 2014 Supplemental Priorities 
include a priority to help address these concerns; specifically, 
Priority 4--Serving High-Need Students, which allows the Department to 
prioritize projects designed to serve students who are members of 
federally recognized Indian tribes, provides a sufficient basis for the 
Department to channel Federal resources toward improved outcomes for 
Native students. With respect to the comment suggesting that the 
Department include a race-based preference in tandem with the priority, 
we note that Priority 12--Promoting Diversity from the 2014 
Supplemental Priorities includes language that allows the Department to 
focus on projects designed to increase racial and ethnic diversity. 
Finally, as mentioned in the discussion of the comments regarding rural 
communities, while the Department declines to make any changes to the 
priority based on these comments, we reiterate our intention to use 
this priority strategically to encourage diversity only in those 
situations where we believe such efforts are most appropriate and we do 
not intend to use it in a way that would adversely affect Native 
students.
    Changes: None.
    Comment: Several commenters expressed support for increasing 
diversity in our Nation's public schools. One commenter suggested that 
a focus on diversity must be accompanied by concerted efforts to foster 
and maintain positive and supportive school climates. The commenter 
further urged the Department to issue guidance or other technical 
assistance documents related to school diversity. Finally, the 
commenter suggested that the Department ensure that potential grant 
applicants wishing to focus on diversity initiate and maintain 
communications with their local communities.
    Discussion: We appreciate the comments in support of the priority 
and the Department's focus on increasing diversity. The Department 
agrees that a focus on positive school climate is an important part of 
improving outcomes for all students. Moreover, a positive, supportive 
school climate may be essential to ensuring that a diverse student body 
achieves true cohesiveness. While we decline to make any changes to the 
priority based on this comment, the Department remains committed to 
exploring avenues to encourage safe, supportive, and positive school 
climates. For example, Priority 13--Improving School Climate, 
Behavioral Supports, and Correctional Education from the 2014 
Supplemental Priorities offers opportunities to direct Federal 
resources toward projects designed to improve school climate.
    We appreciate the comment suggesting that the Department issue 
guidance or technical assistance documents about school diversity. We 
agree that additional resources may be helpful in assisting LEAs and 
communities in undertaking efforts to diversify their schools. We note 
that there are existing resources, such as the Department's Equity 
Assistance Centers, that stand ready to offer technical assistance 
related to school climate issues based on race, national origin, sex, 
and religion. Moreover, the Department continues to explore all 
opportunities to develop and issue guidance materials in this and other 
important policy areas.
    Finally, the Department agrees with the recommendation that grant 
applicants collaborate and communicate with their local communities. 
Public engagement is an integral part of any comprehensive, successful 
school diversity strategy. In that regard, the priority includes 
language that contemplates community input, robust family and community 
involvement, and other forms of public engagement.
    Changes: None.
    Comment: None.
    Discussion: We are revising paragraph (d) to allow the Department 
more flexibility to tailor the priority for each competition in which 
the priority is used in order to narrow the focus on the strategies 
proving most effective in a specific context or on where the greatest 
needs are from year to year. We note that revisions to paragraph (d) 
would still allow the Department to use the paragraph in its entirety, 
as appropriate.
    Changes: In the introductory language, subparagraph (ii), and 
subparagraph (vi) of paragraph (d), we have revised the priority to 
provide the Department the flexibility described above. In addition, we 
have revised the wording in subparagraphs (ii), (v), and (vi) so that 
each will stand better on its own should it be used in isolation in a 
grant competition.
    Final Priority: The Secretary establishes the following priority 
for use primarily in any discretionary grant competition focused on 
elementary and secondary education, as appropriate, in FY 2016 and 
future years. This priority is in addition to the 2014 Supplemental 
Priorities.

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 
socioeconomic diversity in schools that are evidence-based; demonstrate 
ongoing, robust family and community involvement, including a process 
for intensive public engagement and consultation; and meet one or more 
of the following factors--
    (i) Are carried out on one or more of an intra-district, inter-
district, community, or regional basis;
    (ii) Reflect coordination with other relevant government entities, 
including housing or transportation authorities, to the extent 
practicable;
    (iii) Are based on an existing, public diversity plan or diversity 
needs assessment; and
    (iv) Include one or both of the following strategies--
    (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; or
    (B) Establishing or expanding schools that are designed to attract 
substantial numbers of students from 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

[[Page 63101]]

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)).
    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 one or more of these priorities and 
definitions, 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 final 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 final 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 final priority only on a reasoned determination 
that its benefits 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 final priority will not 
impose significant costs on entities that would receive assistance 
through the Department's discretionary grant programs. Additionally, 
the benefits of implementing the final priority outweigh any associated 
costs because it will allow the Department to focus discretionary grant 
competitions on this important area.
    Application submission and participation in a discretionary grant 
program are voluntary. The Secretary believes that the costs imposed on 
applicants by the final priority will 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 final regulations will not 
have a significant economic impact on a substantial number of small 
entities.
    Intergovernmental Review: Some of the programs affected by this 
final 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

[[Page 63102]]

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.

    Dated: September 9, 2016.
John B. King, Jr.,
Secretary of Education.
[FR Doc. 2016-22104 Filed 9-13-16; 8:45 am]
 BILLING CODE 4000-01-P