[Federal Register Volume 84, Number 65 (Thursday, April 4, 2019)]
[Proposed Rules]
[Pages 13204-13211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06584]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

RIN 1855-AA14
[Docket ID ED-2018-OII-0062]


Proposed Priorities, Requirements, Definitions, and Selection 
Criteria--Expanding Opportunity Through Quality Charter Schools 
Program; Grants to Charter School Developers for the Opening of New 
Charter Schools and for the Replication and Expansion of High-Quality 
Charter Schools

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Proposed priorities, requirements, definitions, and selection 
criteria.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
proposes priorities, requirements, definitions, and selection criteria 
for Grants to Charter School Developers for the Opening of New Charter 
Schools and for the Replication and Expansion of High-Quality Charter 
Schools (Developer grants) under the Expanding Opportunity Through 
Quality Charter Schools Program (CSP), Catalog of Federal Domestic 
Assistance (CFDA) numbers 84.282B and 84.282E, respectively. We may use 
one or more of these priorities, requirements, definitions, and 
selection criteria for competitions in fiscal year (FY) 2019 and later 
years. We take this action to support the opening of new charter 
schools (CFDA 84.282B) and the replication and expansion of high-
quality charter schools (CFDA 84.282E) throughout the Nation, 
particularly those that serve educationally disadvantaged students, 
such as students who are individuals from low-income families, and 
students who traditionally have been underserved by charter schools, 
such as Native American students and students in rural communities.

DATES: We must receive your comments on or before May 6, 2019.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted 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 ``Help.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments, address them to Katherine Cox, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3E207, 
Washington, DC 20202-5970.
    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 include 
in their comments only information that they wish to make publicly 
available.

FOR FURTHER INFORMATION CONTACT: Katherine Cox, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3E207, Washington, DC 20202-
5970. Telephone: (202) 453-6886. 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: 
    Invitation to Comment: We invite you to submit comments regarding 
the proposed priorities, requirements, definitions, and selection 
criteria. To ensure that your comments have maximum effect in 
developing the notice of final priorities, requirements, definitions, 
and selection criteria, we urge you to identify clearly the proposed 
priority, requirement, definition, or selection criterion that each 
comment addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866, 13563, and 13771 and their 
overall requirement of reducing regulatory burden that might result 
from these proposed priorities, requirements, definitions, and 
selection criteria. 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 this program.
    During and after the comment period, you may inspect all public 
comments about the proposed priorities, requirements, definitions, and 
selection criteria by accessing Regulations.gov. You may also inspect 
the comments in person at 400 Maryland Avenue SW, Room 3E207, 
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 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 the proposed priorities, requirements, 
definitions, and selection criteria. 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.
    Purpose of Program: The major purposes of the CSP are to expand 
opportunities for all students, particularly traditionally underserved 
students, to attend charter schools and meet challenging State academic 
standards; provide financial assistance for the planning, program 
design, and initial implementation of public charter schools; increase 
the number of high-quality charter schools available to students across 
the United States; evaluate the impact of charter schools on student 
achievement, families, and communities; share best practices between 
charter schools and other public schools; encourage States to provide 
facilities support to charter schools; and support efforts to 
strengthen the charter school authorizing process.
    Developer grants are intended to support charter schools that serve 
early childhood, elementary school, or secondary school students by 
providing grant funds to eligible applicants for the opening of new 
charter schools (CFDA number 84.282B) and for the replication and 
expansion of high-quality charter schools (CFDA number 84.282E).
    Program Authority: Title IV, part C of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA) (20 U.S.C. 7221-7221j).

Proposed Priorities

    This document contains seven proposed priorities.

[[Page 13205]]

Proposed Priority 1--Spurring Investment in Opportunity Zones

    Background: Created under the Tax Cuts and Jobs Act (Pub. L. 115-
97), opportunity zones are intended to promote economic development and 
job creation in distressed communities through preferential tax 
treatment for investors. Specifically, if an individual invests capital 
gains in an opportunity fund--i.e., a vehicle established for the 
purpose of investing in property in an opportunity zone--the taxes the 
individual owes on those gains can be deferred and reduced.
    Through this proposed priority, the Administration seeks to harness 
the power of opportunity zones to help increase the educational choices 
available to students in these communities. The Department would use 
this priority to encourage the opening of new charter schools and the 
replication and expansion of high-quality charter schools in 
opportunity zones and to reward charter school developers that are 
partnering with an opportunity fund, especially for the purpose of 
acquiring or constructing school facilities.
    The Department would have flexibility to use either the priority's 
first area only or both of the priority's areas in a given competition 
and, with respect to the second area, may give applicants additional 
time prior to making an award to provide evidence of receipt of 
financial assistance from an opportunity fund. The Department 
recognizes that such additional time may be needed to enable an 
applicant to formalize a relationship with an opportunity fund. We 
anticipate, however, that we would provide additional time for this 
purpose only if the priority area is used in an absolute priority.
    Proposed Priority: Under this priority, an applicant must address 
one or both of the following priority areas--
    (a) Propose to open a new charter school or to replicate or expand 
a high-quality charter school in a qualified opportunity zone as 
designated by the Secretary of the Treasury under section 1400Z-1 of 
the Internal Revenue Code, as amended by the Tax Cuts and Jobs Act 
(Pub. L. 115-97); and
    (b) Provide evidence in its application that it has received or 
will receive financial assistance from a qualified opportunity fund 
under section 1400Z-2 of the Internal Revenue Code, as amended by the 
Tax Cuts and Jobs Act, for one or more of the following, as needed to 
open or to replicate or expand the school:
    (1) The acquisition (by purchase, lease, donation, or otherwise) of 
an interest (including an interest held by a third party for the 
benefit of the school) in improved or unimproved real property;
    (2) The construction of new facilities, or the renovation, repair, 
or alteration of existing facilities;
    (3) The predevelopment costs required to assess sites for purposes 
of subparagraph (1) or (2); and
    (4) The acquisition of other tangible property.
    In addressing paragraph (a) of this priority, an applicant must 
provide the census tract number of the qualified opportunity zone in 
which it proposes to open a new charter school or replicate or expand a 
high-quality charter school. A list of qualified opportunity zones, 
with census tract numbers, is available at www.cdfifund.gov/Pages/Opportunity-Zones.aspx.
    In addressing paragraph (b) of this priority, an applicant must 
identify the qualified opportunity fund from which it has received or 
will receive financial assistance. The Department may, at its 
discretion, give applicants additional time to provide evidence of such 
assistance after the deadline for transmittal of applications. If the 
Department elects to give applicants additional time, we will announce 
in the notice inviting applications (NIA) the deadline by which such 
evidence must be provided.

Proposed Priority 2--Reopening Academically Poor-Performing Public 
Schools as Charter Schools

    Background: The CSP authorizing statute includes a priority under 
the CMO grant competition for eligible entities that demonstrate 
success in working with schools identified by the State for 
comprehensive support and improvement under section 1111(c)(4)(D)(i) of 
the ESEA. In 2018, the Department undertook rulemaking to develop a 
final priority under the CMO grant competition that is based on that 
grant competition's statutory priority but would require that, in order 
to meet the priority, the applicant also would be required to use grant 
funds to support school improvement efforts by restarting an 
academically poor-performing public school. The priority included in 
this competition is almost identical to the final priority under the 
CMO grant competition.
    We believe that the restart model (i.e., reopening a low-performing 
traditional public school under the management of a charter school 
developer, or reopening a low-performing public charter school under 
the management of a different charter school developer) holds promise 
as a school improvement strategy, but data suggest that it has been 
underutilized.\1\ Accordingly, the proposed priority is intended to 
help increase the frequency of implementation of the restart model. 
Like the CMO grant competition's final priority, the proposed priority 
also would require applicants to demonstrate past success through work 
with one or more academically poor-performing schools or schools 
previously designated as persistently lowest-achieving schools or 
priority schools (i.e., schools identified for interventions under the 
former School Improvement Grant program or in States that exercised 
``ESEA flexibility,'' respectively, under the ESEA, as amended by the 
No Child Left Behind Act of 2001 (NCLB)), including but not limited to 
direct experience reopening academically poor-performing public schools 
as charter schools.
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    \1\ Hurlburt, S., Therriault, S.B., and Le Floch, K.C. (2012). 
School Improvement Grants: Analyses of State Applications and 
Eligible and Awarded Schools (NCEE 2012-4060). Washington, DC: 
National Center for Education Evaluation and Regional Assistance, 
Institute of Education Sciences, U.S. Department of Education.
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    In future Developer grant competitions that include this priority, 
we would encourage applicants to review CSP technical assistance 
materials pertaining to how an applicant may design an admissions 
lottery for an academically poor-performing public school that the 
applicant is proposing to restart. Under the most recent version of the 
CSP nonregulatory guidance, for example, a charter school receiving CSP 
funds could, if permissible under applicable State law, exempt from its 
lottery students who are enrolled in the academically poor-performing 
public school at the time it is restarted.
    Proposed Priority: Under this priority, applicants must--
    (a) Demonstrate past success working with one or more academically 
poor-performing public schools or schools that previously were 
designated as persistently lowest-achieving schools or priority schools 
under the former School Improvement Grant program or in States that 
exercised ESEA flexibility, respectively, under the ESEA, as amended by 
NCLB, including but not limited to direct experience reopening 
academically poor-performing public schools as charter schools; and
    (b) Propose to use grant funds under this program to reopen an 
academically poor-performing public school as a charter school during 
the project period by--

[[Page 13206]]

    (1) Replicating a high-quality charter school based on a successful 
charter school model for which the applicant has provided evidence of 
success; and
    (2) Targeting a demographically similar student population in the 
replicated charter school as was served by the academically poor-
performing public school, consistent with nondiscrimination 
requirements contained in the U.S. Constitution and Federal civil 
rights laws.

Proposed Priority 3--High School Students

    Background: The CSP authorizing statute includes a priority under 
the CMO grant competition for eligible applicants that propose to 
expand or replicate high-quality charter schools that serve high school 
students. In addition, section 4310(2)(M) of the ESEA authorizes 
charter schools that serve postsecondary students to receive CSP funds. 
In 2018, the Department went through the rulemaking process to develop 
a final priority for the CMO grant competition based on that 
competition's statutory priority. The priority expanded upon that 
priority by also requiring that applicants replicate or expand charter 
high schools that offer programs and activities designed to prepare 
high school students for enrollment in postsecondary education 
institutions, which include those that offer one-year training programs 
that prepare students for gainful employment in a recognized occupation 
(as described in section 101(b)(1) of the Higher Education Act of 1965, 
as amended (HEA)) and support such students after high school 
graduation in persisting in college and attaining degrees and 
certificates.
    The proposed priority included in this notice is almost identical 
to the CMO grant competition priority, as the Department believes the 
priority would complement broader efforts to increase postsecondary 
participation, attendance, persistence, and degree attainment among our 
Nation's high school graduates. In order to meet the priority, an 
applicant must describe how it will prepare students for postsecondary 
education and, drawing from the authority provided in section 
4310(2)(M) of the ESEA, provide support for its graduates who enroll in 
institutions of higher education and certain one-year training programs 
that prepare students for gainful employment in a recognized 
occupation. In addition, applicants must establish one or more project-
specific performance measures that will provide reliable information 
about the grantee's progress in meeting the objectives of the project.
    Proposed Priority: (a) Under this priority, applicants must propose 
to--
    (1) Open a new charter school or replicate or expand a high-quality 
charter school to serve high school students, including educationally 
disadvantaged students;
    (2) Prepare students, including educationally disadvantaged 
students, in that school for enrollment in postsecondary education 
institutions through activities such as, but not limited to, 
accelerated learning programs (including Advanced Placement and 
International Baccalaureate courses and programs, dual or concurrent 
enrollment programs, and early college high schools), college 
counseling, career and technical education programs, career counseling, 
internships, work-based learning programs (such as apprenticeships), 
assisting students in the college admissions and financial aid 
application processes, and preparing students to take standardized 
college admissions tests; and
    (3) Provide support for students, including educationally 
disadvantaged students, who graduate from that school and enroll in 
postsecondary education institutions in persisting in, and attaining a 
degree or certificate from, such institutions, through activities such 
as, but not limited to, mentorships, ongoing assistance with the 
financial aid application process, and establishing or strengthening 
peer support systems for such students attending the same institution.
    (b) Applicants must propose one or more project-specific 
performance measures, including aligned leading indicators or other 
interim milestones, that will provide valid and reliable information 
about the applicant's progress in preparing students, including 
educationally disadvantaged students, for enrollment in postsecondary 
education institutions and in supporting those students in persisting 
in and attaining a degree or certificate from such institutions. An 
applicant addressing this priority and receiving a Developer grant must 
provide data that are responsive to the measure(s), including 
performance targets, in its annual performance reports to the 
Department.
    (c) For purposes of this priority, postsecondary education 
institutions include institutions of higher education, as defined in 
section 8101(29) of the ESEA, and one-year training programs that meet 
the requirements of section 101(b)(1) of the HEA.

Proposed Priority 4--Rural Community

    Background: We propose this priority to enable the Department to 
provide incentives for applicants to propose to open a new charter 
school or to replicate or expand a high-quality charter school in a 
rural community. There is too often a relative dearth of high-quality 
educational options for students in rural communities, and our 
experience implementing this and other discretionary grant programs has 
taught us that students in these communities often face unique 
obstacles to educational success. This proposed priority would allow 
the Department flexibility to provide an incentive for applicants 
proposing to open a new charter school or to replicate or expand a 
high-quality charter school in a rural community, including by 
evaluating such applications separately from applications proposing to 
open new charter schools or to replicate or expand high-quality charter 
schools in non-rural communities, thereby allowing for an ``apples-to-
apples'' comparison.
    To meet this priority, an applicant would need to propose to open a 
new charter school or to replicate or expand a high-quality charter 
school in a rural community or such a school in a non-rural community, 
depending on the Department's policy objectives in a given year and 
which prong of the priority the applicant is addressing.
    This proposed priority would help ensure that students in rural 
communities have access to a range of educational options similar to 
that available to their peers in suburban and urban areas, and from 
which parents can select an option that best meets their child's needs.
    Proposed Priority: Under this priority, applicants must propose to 
open a new charter school or to replicate or expand a high-quality 
charter school in--
    (a) A rural community; or
    (b) A community that is not a rural community.

Proposed Priority 5--Opening a New Charter School or Replicating or 
Expanding a High-Quality Charter School To Serve Native American 
Students

    Background: We propose this priority to enable the Department to 
provide an incentive for applicants that propose to open a new charter 
school or to replicate or expand a high-quality charter school by 
conducting targeted outreach and recruitment in order to serve a high 
proportion of Native American students. We propose to define ``high 
proportion'' in a way that would enable the Department to

[[Page 13207]]

determine whether a new, replicated, or expanded charter school serves 
a high proportion of Native American students on a case-by-case basis, 
taking into consideration the unique factual circumstances of that 
school. The priority would allow applicants to receive priority for 
proposing to open a new charter school, or to replicate or expand a 
high-quality charter school, that serves Native Hawaiian and Native 
American Pacific Islander students, as well as students who are Indians 
(including Alaska Natives).
    In order to meet the priority, an applicant would be required to 
provide a letter of support from one or more Indian Tribes or Native 
American organizations located within the area to be served by the new, 
replicated, or expanded charter school, and to meaningfully collaborate 
with the Indian Tribes or Native American organizations in a timely, 
active, and ongoing manner. In addition, the applicant would have to 
demonstrate that the new, replicated, or expanded charter school's 
mission and educational program will address the unique educational 
needs of students who are Native Americans, and that such school's 
governing board will have a substantial percentage of members who are 
members of Indian Tribes or Native American organizations located 
within the area to be served by the charter school. Generally, a school 
board with a percentage of members of Indian Tribes or Native American 
organizations that is comparable to the percentage of Native American 
students to be served would satisfy the substantial percentage 
requirement in this priority; however, there may be circumstances where 
a smaller or larger percentage of members from an Indian Tribe or 
Native American organization is appropriate.
    Proposed Priority: Under this priority, applicants must--
    (a) Propose to open a new charter school, or replicate or expand a 
high-quality charter school, that--
    (1) Utilizes targeted outreach and recruitment in order to serve a 
high proportion of Native American students, consistent with 
nondiscrimination requirements contained in the U.S. Constitution and 
Federal civil rights laws;
    (2) Has a mission and focus that will address the unique 
educational needs of Native American students, such as through the use 
of instructional programs and teaching methods that reflect and 
preserve Native American language, culture, and history; and
    (3) Has or will have a governing board with a substantial 
percentage of members who are members of Indian Tribes or Native 
American organizations located within the area to be served by the new, 
replicated, or expanded charter school;
    (b) Submit a letter of support from at least one Indian Tribe or 
Native American organization located within the area to be served by 
the new, replicated, or expanded charter school; and
    (c) Meaningfully collaborate with the Indian Tribe(s) or Native 
American organization(s) from which the applicant has received a letter 
of support in a timely, active, and ongoing manner with respect to the 
development and implementation of the educational program at the 
charter school.

Proposed Priority 6--Low-Income Demographic

    Background: This proposed priority is for applicants with 
experience serving concentrations of students who are individuals from 
low-income families and is intended to support efforts to increase the 
number of high-quality educational options available to such students, 
particularly in the Nation's high-poverty areas. We propose three 
subparts to this proposed priority, each of which would require that 
the schools the applicant operates or manages serve a specific minimum 
percentage of students who are individuals from low-income families 
over the course of the Developer grant project period. The Secretary 
would have flexibility to choose one or more of the subparts of this 
priority in a given competition. We believe such flexibility is 
necessary to enable the Secretary to accommodate the range of eligible 
applicants and schools that may need support in a given year.
    Under the proposed priority, a charter school proposed to be 
opened, replicated, or expanded by an applicant would serve, for the 
duration of the grant period, a percentage of students who are 
individuals from low-income families that is comparable to the minimum 
percentage of such students established under the priority for a given 
year. While the priority is written in a manner that gives the 
Department flexibility to apply one, two, or all three poverty 
standards in a single competition, we do not anticipate applying more 
than one poverty standard in a single competition.
    Proposed Priority: Under this priority, applicants must demonstrate 
one of the following--
    (a) That at least 40 percent of the students across all of the 
charter schools the applicant operates or manages are individuals from 
low-income families, and that the applicant will maintain the same, or 
a substantially similar, percentage of such students across all of its 
charter schools during the grant period;
    (b) That at least 50 percent of the students across all of the 
charter schools the applicant operates or manages are individuals from 
low-income families, and that the applicant will maintain the same, or 
a substantially similar, percentage of such students across all of its 
charter schools during the grant period; or
    (c) That at least 60 percent of the students across all of the 
charter schools the applicant operates or manages are individuals from 
low-income families, and that the applicant will maintain the same, or 
a substantially similar, percentage of such students across all of its 
charter schools during the grant period.

Proposed Priority 7--Single School Operators

    Background: Under this priority, we would give preference to 
applicants that currently operate a single charter school. We are 
including this priority to encourage applications from developers that 
currently operate a single charter school but seek to replicate or 
expand it. Through this priority, we hope to support successful single 
school operators to grow into charter management organizations that, in 
the future, can continue to replicate and expand their successful 
school models. This proposed priority also would allow the Department 
to evaluate applicants from single school operators separately from 
applicants that already operate more than one school, thereby allowing 
for an ``apples-to-apples'' comparison.
    Proposed Priority: Under this priority, applicants must provide 
evidence that--
    (a) The applicant currently operates one, and only one, charter 
school; or
    (b) The applicant currently operates more than one charter school.

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

[[Page 13208]]

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)).

Proposed Requirements

    Background: Section 4305(a)(2) of the ESEA includes specific 
requirements applicable to the Developer grant competition. In addition 
to those requirements, section 4305(c) of the ESEA requires grants 
awarded to Developers to have the ``same terms and conditions as grants 
awarded to State entities under section 4303.'' As applicable, we 
intend to apply the requirements in section 4303(f) of the ESEA to 
Developer grants, in addition to the proposed application requirements, 
eligibility restrictions, and funding restrictions.
    In general, the Department believes, based on past experience 
administering this program, that these proposed requirements are 
necessary for the proper consideration of applications for Developer 
grants and would increase the likelihood of success of applicants' 
proposed projects, thereby contributing to the efficient use of 
taxpayer dollars in expanding the high-quality educational options 
available to our Nation's students. In accordance with section 4305(c), 
these proposed requirements would not preclude the Department from 
applying other terms and conditions applicable to State entity grants 
to Developer grants in FY 2019 or future years.
    Proposed Requirements: We propose the following requirements for 
this program. We may apply one or more of these requirements in any 
year in which this program is in effect.
    Applicants for funds under this program must address one or more of 
the following application requirements:
    (a) Describe the applicant's objectives in running a quality 
charter school program and how the program will be carried out.
    (b) Describe the educational program that the applicant will 
implement in the charter school receiving funding under this program, 
including--
    (1) Information on how the program will enable all students to meet 
the challenging State academic standards;
    (2) The grade levels or ages of students who will be served; and
    (3) The instructional practices that will be used.
    (c) Describe how the applicant will ensure that the charter school 
that will receive funds will recruit, enroll, and retain students, 
including educationally disadvantaged students, which include children 
with disabilities and English learners, including the lottery and 
enrollment procedures that will be used for the charter school if more 
students apply for admission than can be accommodated, and, if the 
applicant proposes to use a weighted lottery, how the weighted lottery 
complies with section 4303(c)(3)(A) of the ESEA.
    (d) Provide a complete logic model (as defined in 34 CFR 77.1) for 
the grant project. The logic model must include the applicant's 
objectives for implementing a new charter school or replicating or 
expanding a high-quality charter school with funding under this 
competition.
    (e) Provide a budget narrative, aligned with the activities, target 
grant project outputs, and outcomes described in the logic model, that 
outlines how grant funds will be expended to carry out planned 
activities.
    (f) If the applicant proposes to open a new charter school (CFDA 
number 84.282B) or proposes to replicate or expand a charter school 
(CFDA number 84.282E) that provides a single-sex educational program, 
demonstrate that the proposed single-sex educational programs are in 
compliance with title IX of the Education Amendments of 1972 (20 U.S.C. 
1681, et seq.) (``Title IX'') and its implementing regulations, 
including 34 CFR 106.34.
    (g) Provide the applicant's most recent available independently 
audited financial statements prepared in accordance with generally 
accepted accounting principles.
    (h) For each charter school currently operated or managed by 
applicants under CFDA 84.282E for replication and expansion, provide--
    (1) Information that demonstrates that the school is treated as a 
separate school by its authorized public chartering agency and the 
State, including for purposes of accountability and reporting under 
title I, part A of the ESEA;
    (2) Student assessment results for all students and for each 
subgroup of students described in section 1111(c)(2) of the ESEA;
    (3) Attendance and student retention rates for the most recently 
completed school year and, if applicable, the most recent available 
four-year adjusted cohort graduation rates and extended-year adjusted 
cohort graduation rates; and
    (4) Information on any significant compliance and management issues 
encountered within the last three school years by the existing charter 
school being operated or managed by the eligible entity, including in 
the areas of student safety and finance.
    (i) Provide--
    (1) A request and justification for waivers of any Federal 
statutory or regulatory provisions that the eligible entity believes 
are necessary for the successful operation of the charter school to be 
opened or to be replicated or expanded; and
    (2) A description of any State or local rules, generally applicable 
to public schools, that will be waived or otherwise not apply to the 
school that will receive funds.
    (j) A description of how each school that will receive funds meets 
the definition of charter school under section 4310(2) of the ESEA.
    Eligibility: Eligibility for a grant under this competition is 
limited to charter school developers in States that do not currently 
have a CSP State Entity grant (CFDA number 84.282A) under the ESEA. 
Eligibility in a State with a CSP State Educational Agency (SEA) grant 
(CFDA 84.282A) under the ESEA, as amended by NCLB, is limited to grants 
for replication and expansion \2\ (CFDA 84.282E) and only if the 
Department has not approved an amendment to the SEA's approved grant 
application authorizing the SEA to make subgrants for replication and 
expansion.\3\
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    \2\ The list of eligible States will be included in the NIA for 
this competition and will be updated at the time of publication of 
that notice.
    \3\ The list of these States will be included in the NIA for 
this competition and will be updated at the time of publication of 
that notice.
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    Funding Restriction: An applicant may only propose to support one 
charter school per grant application.

Proposed Definitions

    We propose the following definitions for this program. We may apply 
one or more of these definitions in any year in which this program is 
in effect.
    Background: In order to ensure a common understanding of the 
proposed priorities, requirements, and selection criteria, we propose 
definitions that are critical to the policy and statutory purposes of 
the Developer grant program. We propose these definitions in order to 
clarify expectations for eligible entities applying for Developer 
grants and to ensure that the review process for applications for 
Developer grants remains as transparent as possible. The proposed 
definition for educationally disadvantaged students is based on section 
1115(c)(2) of the ESEA,

[[Page 13209]]

and the proposed definition for Indian Tribe is from section 6132(b)(2) 
of the ESEA. In addition, we are particularly interested in receiving 
feedback on the proposed definition of rural community.
    Academically poor-performing public school means:
    (a) A school identified by the State for comprehensive support and 
improvement under section 1111(c)(4)(D)(i) of the ESEA; or
    (b) A public school otherwise identified by the State or, in the 
case of a charter school, its authorized public chartering agency, as 
similarly academically poor-performing.
    Educationally disadvantaged student means a student in one or more 
of the categories described in section 1115(c)(2) of the ESEA, which 
include children who are economically disadvantaged, children with 
disabilities, migrant students, English learners, neglected or 
delinquent students, homeless students, and students who are in foster 
care.
    High proportion, when used to refer to Native American students, 
means a fact-specific, case-by-case determination based upon the unique 
circumstances of a particular charter school or proposed charter 
school. The Secretary considers ``high proportion'' to include a 
majority of Native American students. In addition, the Secretary may 
determine that less than a majority of Native American students 
constitutes a ``high proportion'' based on the unique circumstances of 
a particular charter school or proposed charter school, as described in 
the application for funds.
    Indian Tribe means a federally recognized or a State-recognized 
Tribe.
    Individual from a low-income family means an individual who is 
determined by a State educational agency or local educational agency to 
be a child from a low-income family on the basis of (a) data used by 
the Secretary to determine allocations under section 1124 of the ESEA, 
(b) data on children eligible for free or reduced-price lunches under 
the Richard B. Russell National School Lunch Act, (c) data on children 
in families receiving assistance under part A of title IV of the Social 
Security Act, (d) data on children eligible to receive medical 
assistance under the Medicaid program under title XIX of the Social 
Security Act, or (e) an alternate method that combines or extrapolates 
from the data in items (a) through (d) of this definition.
    Institution of higher education means an educational institution in 
any State that--
    (a) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate, or persons who meet the 
requirements of section 484(d) of the HEA;
    (b) Is legally authorized within such State to provide a program of 
education beyond secondary education;
    (c) Provides an educational program for which the institution 
awards a bachelor's degree or provides not less than a two-year program 
that is acceptable for full credit toward such a degree, or awards a 
degree that is acceptable for admission to a graduate or professional 
degree program, subject to review and approval by the Secretary;
    (d) Is a public or other nonprofit institution; and
    (e) Is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary for the granting of 
preaccreditation status, and the Secretary has determined that there is 
satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time.
    Native American means an Indian (including an Alaska Native), as 
defined in section 6132(b)(2) of the ESEA, Native Hawaiian, or Native 
American Pacific Islander.
    Native American language means the historical, traditional 
languages spoken by Native Americans.
    Native American organization means an organization that--
    (a) Is legally established--
    (1) By Tribal or inter-Tribal charter or in accordance with State 
or Tribal law; and
    (2) With appropriate constitution, by-laws, or articles of 
incorporation;
    (b) Includes in its purposes the promotion of the education of 
Native Americans;
    (c) Is controlled by a governing board, the majority of which is 
Native American;
    (d) If located on an Indian reservation, operates with the sanction 
or by charter of the governing body of that reservation;
    (e) Is neither an organization or subdivision of, nor under the 
direct control of, any institution of higher education; and
    (f) Is not an agency of State or local government.
    Rural community means a community that is served by a local 
educational agency that is eligible to apply for funds under the Small 
Rural School Achievement (SRSA) program or the Rural and Low-Income 
School (RLIS) program authorized under title V, part B of the ESEA. 
Applicants may determine whether a particular local educational agency 
is eligible for these programs by referring to information on the 
following Department websites. For the SRSA program: www2.ed.gov/programs/reapsrsa/eligible16/index.html. For the RLIS program: 
www2.ed.gov/programs/reaprlisp/eligibility.html.

Proposed Selection Criteria

    Background: Based on past experience implementing the Developer 
grant competition and its predecessor competition, we believe that 
these additional criteria will be valuable tools for peer reviewers to 
evaluate the quality of Developer applications in future years.
    Proposed selection criterion (a) ``Quality of the eligible 
applicant'' would only apply to applicants under CFDA number 84.282E 
for replication and expansion. Under this proposed selection criterion, 
the Department would consider the degree to which an applicant has 
demonstrated success in increasing student academic achievement, the 
degree to which the academic achievement results for educationally 
disadvantaged students served by the charter schools operated or 
managed by the applicant have exceeded the average academic achievement 
results for such students in the State, whether charter schools 
operated or managed by the applicant have been closed or have 
encountered statutory or regulatory compliance issues, and the strength 
of the applicant's non-academic results such as parent satisfaction, 
school climate, student mental health, civic engagement, and crime 
prevention and reduction. Further, we propose to incorporate into this 
criterion language from the ESEA definition of ``high-quality charter 
school'' that would enable reviewers also to consider any significant 
issues that an applicant's charter schools have encountered in the 
areas of financial or operational management and student safety. The 
Department believes that these proposed selection factors would align 
with the intent of the authorizing statute and would bolster our 
ability to select high-quality Developer applicants that propose to 
replicate or expand a high-quality charter school.
    Proposed selection criterion (b) ``Significance of contribution in 
assisting educationally disadvantaged students'' would focus on the 
contribution the proposed project would make in expanding educational 
opportunities for educationally disadvantaged students and enabling

[[Page 13210]]

those students to meet challenging State academic standards. This 
proposed criterion would allow the Department to assess the extent to 
which each proposed project aligns with a major statutory purpose of 
the CSP: To expand opportunities for educationally disadvantaged 
students. This criterion would encourage applicants to discuss their 
plans for opening a new charter school, or replicating or expanding a 
high-quality charter school, that will recruit and enroll educationally 
disadvantaged students.
    Proposed selection criterion (c) ``Quality of the continuation 
plan'' would focus on the applicant's plan for continuing to operate 
the charter school that would receive grant funds once those funds are 
no longer available. This criterion will enable reviewers to assess the 
strength of applicants' continuation plans and the extent to which the 
applicant is prepared to operate the charter school in a way that is 
consistent with the eligible applicant's application even after the 
grant performance period ends.
    Proposed Selection Criteria: We propose the following selection 
criteria for evaluating an application under this program. We may apply 
one or more of these criteria in any year in which this program is in 
effect. In the NIA, we will announce the maximum possible points 
assigned to each criterion.
    The Secretary will select eligible entities to receive grants under 
this program on the basis of the quality of such applications, after 
taking into consideration one or more of the following selection 
criteria:
    (a) Quality of the eligible applicant.
    In determining the quality of the eligible applicant, the Secretary 
considers the following factors:
    (1) The extent to which the academic achievement results (including 
annual student performance on statewide assessments and annual student 
attendance and retention rates and, where applicable and available, 
student academic growth, high school graduation rates, postsecondary 
enrollment and persistence rates, including in college or career 
training programs, employment rates, earnings, and other academic 
outcomes) for educationally disadvantaged students served by the 
charter school(s) operated or managed by the applicant have exceeded 
the average academic achievement results for such students served by 
other public schools in the State.
    (2) The extent to which one or more charter schools operated or 
managed by the applicant have closed; have had a charter revoked due to 
noncompliance with statutory or regulatory requirements; or have had 
their affiliation with the applicant revoked or terminated, including 
through voluntary disaffiliation.
    (3) The extent to which one or more charter schools operated or 
managed by the applicant have had any significant issues in the area of 
financial or operational management or student safety, or have 
otherwise experienced significant problems with statutory or regulatory 
compliance that could lead to revocation of the school's charter.
    (4) The extent to which the schools operated or managed by the 
applicant demonstrate strong results on measurable outcomes in non-
academic areas such as, but not limited to, parent satisfaction, school 
climate, student mental health, civic engagement, and crime prevention 
and reduction.
    (b) Significance of contribution in assisting educationally 
disadvantaged students.
    In determining the significance of the contribution the proposed 
project will make in expanding educational opportunity for 
educationally disadvantaged students and enabling those students to 
meet challenging State academic standards, the Secretary considers the 
quality of the plan to ensure that the charter school the applicant 
proposes to open, replicate, or expand will recruit, enroll, and 
effectively serve educationally disadvantaged students, which include 
children with disabilities and English learners.
    (c) Quality of the continuation plan.
    In determining the quality of the continuation plan, the Secretary 
considers the extent to which the eligible applicant is prepared to 
continue to operate the charter school that would receive grant funds 
in a manner consistent with the eligible applicant's application once 
the grant funds under this program are no longer available.
    Final Priorities, Requirements, Definitions, and Selection 
Criteria: We will announce the final priorities, requirements, 
definitions, and selection criteria in a document in the Federal 
Register. We will determine the final priorities, requirements, 
definitions, and selection criteria after considering public comments 
and other information available to the Department. This document does 
not preclude us from proposing additional priorities, requirements, 
definitions, or selection criteria, subject to meeting applicable 
rulemaking requirements.
    Note: This document does not solicit applications. In any year in 
which we choose to use one or more of these priorities, requirements, 
definitions, and selection criteria, we invite applications through a 
notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined 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.
    Under Executive Order 13771, for each new rule that the Department 
proposes for notice and comment or otherwise promulgates that is a 
significant regulatory action under Executive Order 12866, and that 
imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2019, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. Because the proposed 
regulatory action is not significant, the requirements of Executive 
Order 13771 do not apply.
    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

[[Page 13211]]

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 these proposed priorities, requirements, 
definitions, and selection criteria only on a reasoned determination 
that their benefits would justify their costs. In choosing among 
alternative regulatory approaches, we selected those approaches 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 are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.
    We believe that the benefits of this regulatory action outweigh any 
associated costs, which we believe would be minimal. While this action 
would impose cost-bearing requirements on participating Developers, we 
expect that Developer applicants would include requests for funds to 
cover such costs in their proposed project budgets. We believe this 
regulatory action would strengthen accountability for the use of 
Federal funds by helping to ensure that the Department awards CSP 
grants to Developers that are most capable of expanding the number of 
high-quality charter schools available to our Nation's students.

Paperwork Reduction Act of 1995

    The proposed priorities, requirements, and selection criteria 
contain information collection requirements that are approved by OMB 
under OMB control number 1894-0006; the proposed priorities, 
requirements, and selection criteria do not affect the currently 
approved data collection.
    Regulatory Flexibility Act Certification: The Secretary certifies 
that this proposed regulatory action would not have a significant 
economic impact on a substantial number of small entities. The U.S. 
Small Business Administration (SBA) Size Standards define proprietary 
institutions as small businesses if they are independently owned and 
operated, are not dominant in their field of operation, and have total 
annual revenue below $7,000,000. Nonprofit institutions are defined as 
small entities if they are independently owned and operated and not 
dominant in their field of operation. Public institutions are defined 
as small organizations if they are operated by a government overseeing 
a population below 50,000.
    Participation in this program is voluntary and limited to charter 
school developers seeking funds to help open a new charter school or 
replicate or expand a high-quality charter. The Department anticipates 
that approximately 50 developers will apply for Developer grants in a 
given year and estimates that approximately half of these developers 
will be small entities. For this limited number of small entities, any 
cost-bearing requirements imposed by this regulatory action can be 
defrayed with grant funds, as discussed in the Regulatory Impact 
Analysis.
    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.
    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. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. 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 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: April 1, 2019.
Frank T. Brogan,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2019-06584 Filed 4-3-19; 8:45 am]
 BILLING CODE 4000-01-P