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Proposed Rule

Magnet Schools Assistance Program

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Office of Innovation and Improvement, Department of Education.


Notice of proposed rulemaking.


The Secretary proposes to amend the regulations governing the Magnet Schools Assistance Program (MSAP) in 34 CFR part 280. These proposed amendments would allow the MSAP to use an approach similar to that in 34 CFR 75.200 for establishing selection criteria in grant competitions. Under this approach the MSAP would have the flexibility to use selection criteria from its program regulations, from the menu of general selection criteria in the Education Department General Administrative Regulations (EDGAR) in 34 CFR 75.210, based on statutory provisions in accordance with 34 CFR 75.209, or from any combination of these.


We must receive your comments on or before September 21, 2006.


Address all comments about these proposed regulations to Steven L. Brockhouse, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W229, Washington, DC 20202-5970. If you prefer to send your comments through the Internet, you may address them to us at the U.S. Government Web site:

Or you may send your Internet comments to us at the following address:

You must include the term “MSAP NPRM” in the subject line of your electronic message.

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Steven L. Brockhouse. Telephone: (202) 260-2476 or via Internet:

If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

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Invitation To Comment

We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations.

We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about these proposed regulations in room 4W229, 400 Maryland Avenue, SW., 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 supply an appropriate aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.


On March 6, 1997, the Secretary published final regulations (62 FR 10398) amending the provisions of EDGAR governing discretionary grant programs administered directly by us. These amendments established an approach by which the Secretary could use different types of selection criteria when evaluating a grant application. Specifically, § 75.200 was amended to permit the Secretary to use selection criteria based on statutory provisions in accordance with 34 CFR 75.209, selection criteria in program-specific regulations, selection criteria established under 34 CFR 75.210, or any combination of these. Section 75.210 provides a menu of selection criteria. For a competition, the Secretary selects from the menu one or more criteria that best enable us to identify the highest-quality applications consistent with the program purpose, statutory requirements, and any priorities established. Within each criterion, the Secretary may further define the criterion by selecting one or more specific factors.

At the time that these final regulations were published, we also amended, through notice and comment rulemaking, the regulations for a number of Department programs that contained program-specific selection criteria, so that these programs could use the criteria in 34 CFR 75.210, criteria based on statutory provisions, or the criteria in their program regulations for grant competitions. The MSAP regulations were not amended at that time.

This notice of proposed rulemaking would conform the MSAP regulations to those of the majority of other discretionary grant programs in the Department. We believe that by expanding the range of selection criteria that could be used in a specific grant competition, we will be able to administer the MSAP more effectively to best meet the program's statutory purposes and requirements and to better ensure that MSAP projects are effectively integrated with State and local reform activities.

We intend that the MSAP will use the selection criteria in 34 CFR 75.210 in conjunction with criteria based on the statute and in the program-specific Start Printed Page 48867regulations, not instead of them. In selecting a set of criteria and factors for a particular competition from among the selection criteria in the MSAP regulations and 34 CFR 75.210, or in establishing selection criteria based on statutory provisions governing the MSAP as described in 34 CFR 75.209, the Secretary would not solicit formal public comment but could draw on input from grantees and program beneficiaries; feedback from previous peer reviewers and program evaluators; discussions among Department employees, grantees, and program beneficiaries; and meetings, conferences, visits to grantees, and other forms of outreach and exchange with the relevant communities. We believe applicants would find that criteria selected in this manner for specific competitions would provide them with adequate guidance about review standards, and also with flexibility to design and propose the projects that they believe best serve their needs.

The Secretary is particularly interested in comments from potential grant applicants and intended program beneficiaries on this proposed approach. Do applicants or program beneficiaries support this approach? Are there any costs associated with shifting from using selection criteria tailored to individual programs to using a flexible menu of general selection criteria? If yes, what are those costs and does the benefit of the added flexibility of the proposed approach justify the costs? Would these proposed amendments have other effects?

Significant Proposed Regulations

We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.

Section 280.30 How does the Secretary Evaluate an Application?

Current Regulations: The current regulatory provisions in § 280.30 describe the way in which applications are evaluated by using the selection criteria in § 280.31 and the priorities described in § 280.32.

Proposed Regulations: Proposed § 280.30 would give the Secretary the flexibility to use selection criteria from § 280.31, from the approved menu of general selection criteria in 34 CFR 75.210 or from selection criteria based on statutory provisions governing the MSAP, established in accordance with 34 CFR 75.209. The Secretary also could use any combination of selection criteria from these sources. We would announce the selection criteria and the weighting factor for each criterion in the Federal Register notice announcing a grant competition for the MSAP.

Reasons: The Secretary believes that this change is necessary in order to provide the MSAP the same flexibility that is afforded many of the Department's discretionary grant programs in tailoring the selection criteria to be used to evaluate applications in a manner that helps to achieve results consistent with a program's statutory purpose. Additionally, this approach enables us to take into consideration current program needs, new research findings that relate to magnet schools, or other appropriate information in order to facilitate the selection of applications that show the greatest promise of effectively meeting the statutory purposes of the MSAP. Without this change, the MSAP would be limited to using only the selection criteria and factors in current § 280.31, whether or not their use continues to work well in the selection of new projects that are likely to be effective in achieving results.

An alternative approach would have been to propose specific changes to the selection criteria for the MSAP in § 280.31. We consider this approach less desirable because it would require new rulemaking every time that a change is made in the selection criteria, however modest that change might be. Such an approach would, of necessity, be time consuming and as a practical matter would restrict rather than enhance flexibility in considering input from sources such as school districts that are implementing magnet school programs, researchers, evaluators, policymakers, and others.

Section 280.31 What Selection Criteria does the Secretary Use?

Current Regulations: The current regulations assign specific, mandatory point values to the selection criteria.

Proposed Regulations: The proposed regulations would remove these mandatory point values from the selection criteria.

Reasons: Removing the mandatory point values provides the Secretary flexibility to select specific point values from year to year to address program requirements and is consistent with the Department's approach for other discretionary grant programs that use selection criteria from 34 CFR 75.210 and selection criteria based on the statute, as set forth in 34 CFR 75.209, as well as selection criteria from program regulations.

Executive Order 12866

1. Potential Costs and Benefits

Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the proposed regulations are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of this regulatory action, we have determined that the benefits would justify the costs.

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

Summary of Potential Costs and Benefits

These proposed regulations affect only local educational agencies (LEAs) that are applying for assistance under the MSAP. The proposed regulations create flexibility for us to use selection criteria other than those in § 280.31 for a MSAP grant competition. We believe that any criterion from 34 CFR 75.209 or 34 CFR 75.210 that would be used in a future grant competition would not impose a financial burden that LEAs would not otherwise incur in the development and submission of a grant application under the MSAP and, under some circumstances, could reduce the financial burden of preparing a MSAP grant application by a modest amount if, for example, the use of this flexibility resulted in fewer criteria or factors to be addressed in a grant application.

2. Clarity of the Regulations

Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

  • Are the requirements in the proposed regulations clearly stated?
  • Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
  • Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
  • Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol Start Printed Page 48868“§ ” and a numbered heading; for example, § 280.30 How does the Secretary evaluate an application?
  • Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?
  • What else could we do to make the proposed regulations easier to understand?

Send any comments that concern how the Department could make these proposed regulations easier to understand to the person listed in the ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities.

Small entities affected by these proposed regulations are small LEAs applying for Federal funds under this program. The changes will not have a significant economic impact on these LEAs in terms of the cost of applying for a MSAP grant.

Paperwork Reduction Act of 1995

These proposed regulations do not contain any information collection requirements.

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.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site:​news/​fedregister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

You may also view this document in text or PDF at the following site:​programs/​magnet/​applicant.html.


The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at:​nara/​index.html.

(Catalog of Federal Domestic Assistance Number 84.165A Magnet Schools Assistance Program.)

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List of Subjects in 34 CFR Part 280

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Dated: August 16, 2006.

Morgan S. Brown,

Assistant Deputy Secretary, for Innovation and Improvement.

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

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

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

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2. Section 280.30 is revised to read as follows:

How does the Secretary evaluate an application?

(a) The Secretary evaluates an application under the procedures in 34 CFR part 75 and this part.

(b) To evaluate an application for a new grant the Secretary may use—

(1) Selection criteria established under 34 CFR 75.209;

(2) Selection criteria in § 280.31;

(3) Selection criteria established under 34 CFR 75.210; or

(4) Any combination of criteria from paragraphs (b)(1), (b)(2), and (b)(3) of this section.

(c) The Secretary indicates in the application notice published in the Federal Register the specific criteria that the Secretary will use and how points for the selection criteria will be distributed.

(d) The Secretary evaluates an application submitted under this part on the basis of criteria described in paragraph (c) of this section and the priority factors in § 280.32.

(e) The Secretary awards up to 100 points for the extent to which an application meets the criteria described in paragraph (c) of this section.

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

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


3. Section 280.31 is amended:

A. In the introductory text, by removing the word “uses” and adding, in its place, the words “may use”.

B. In paragraph (a) introductory text, by removing the parenthetical “(25 points)”.

C. In paragraph (b) introductory text, by removing the parenthetical “(10 points)”.

D. In paragraph (c) introductory text, by removing the parenthetical “(35 points)”.

E. In paragraph (d) introductory text, by removing the parenthetical “(5 points)”.

F. In paragraph (e) introductory text, by removing the parenthetical “(15 points)”.

G. In paragraph (f) introductory text, by removing the parenthetical “(10 points)”.

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[FR Doc. E6-13795 Filed 8-21-06; 8:45 am]