The U.S. Education Department under Secretary Arne Duncan has for years been supportive of public charter schools, even requiring states that wanted Race to the Top money or federal waivers from No Child Left Behind to expand their numbers. Now the department is trying to figure out what requirements to attach to future federal grants for charter schools, and is seeking public comment on its proposed priorities as spelled out in the Federal Register (text of notice below).
The five priorities are revealing about the department’s thinking about the growth of charters and their place in the education system. Following is a list of the five and an analysis of each from Jan Resseger, who retired this year after 15 years as the (lay) Minister for Public Education and Witness in the United Church of Christ’s Justice and Witness Ministries, and is a public school advocate. This was part of a post on her blog.
By Jan Resseger
Improving Efficiency through Economies of Scale: “Compared to charter schools, traditional public schools tend to have higher student enrollment, which may result in lower average costs per student…” says the notice. Grant applicants are asked to join in consortia to design “projects of national significance and scope that promote shared systems for acquiring goods or services to achieve efficiencies….”
Improving Accountability: “While there are many high-performing charter schools across the nation, charter school performance varies significantly and too many persistently low-performing charter schools are not held accountable for their results.” Grant seekers would be expected to create “projects of national significance and scope to improve authorized public chartering agencies’ capacity to conduct rigorous application reviews, monitor and oversee charter schools… close underperforming schools, replicate and expand high-performing schools, maintain a portfolio of high-quality charter schools, and evaluate and communicate the performance of that portfolio…”
Serving Students with Disabilities: “As public schools, it is essential that charter schools provide equitable access and appropriate educational services to all students, regardless of disability, as set forth in the Individuals with Disabilities Education Act (IDEA)…” Grant seekers would propose “projects of national significance and scope that are designed to increase access to charter schools for students with disabilities…”
Serving English Learners: “From 2001 to 2010 the number of students identified as English Learners increased significantly, growing from approximately 3,700,000 to 4,660,275 nationwide…” “This proposed priority is for projects of national significance and scope that are designed to increase access to charter schools for English Learners….”
Personalized Technology-Enabled Learning: “Learning models that blend traditional, classroom-based teaching and learning with virtual, online, or digital delivery of personalized instructional content offer the potential to transform public education….” Grant applicants would be proposing “projects of national significance and scope that are designed to improve achievement and attainment outcomes for high-need students through the development and implementation in charter schools of technology-enabled instructional models….”
As I read all this, of course, my fist thought is about what I am not being asked to comment on. Is investing tax money in charter schools that are privately operated a good idea? Is the Department’s assumption correct that such schools are more innovative than traditional public schools? Despite this program’s goal of creating “projects of national significance and scope,” haven’t the larger “national” Charter Management Organizations been unable to demonstrate that they are on the whole better than traditional public schools?
And what might be my response to the five priorities, beginning with the first priority: creating economies of scale? One question comes to mind: instead of creating huge consortia of privatized charter schools, wouldn’t we be better able to realize such economies by returning our focus to improving traditional public schools in which economies of scale are a natural part of the system? Why create a whole other infrastructure when we have a relatively workable system already?
My experience here in Cleveland makes me wonder about the political feasibility of the second priority—granting money to encourage states and non-profits to regulate charters. Charters are usually created and operated in state law, and despite that our Cleveland mayor created just the sort of regulatory capacity the department is proposing in this priority—a Transformation Alliance to oversee charters and to close those that are failing our children or stealing the state’s money. But when it came time for the Ohio legislature to embed the Cleveland mayor’s regulatory plan into law, legislators beholden to charter management companies ensured that the the statute they passed lacked the teeth that would have enabled the Transformation Alliance to close the bad schools.
The third and fourth priorities are deeply troubling because they suggest that the Department of Education has somehow drifted from its important role as a protector of children’s civil rights. The federal role in education has historically been to expend opportunity and access to education for children in groups who have been under-served. Title I has provided federal dollars for schools serving a large number or high concentration of children in poverty. IDEA guarantees and funds services for children with disabilities. Other regulations and funding streams support the education of immigrant and migrant children and children learning English. That the Department of Education is proposing to make grants to develop programs to encourage charters to begin serving these children seems bizarre, when the same Department of Education has an Office of Civil Rights whose function is to enforce that all publicly funded schools will provide appropriate services for these children as their right. Why is the Department offering grant money to encourage provision of the services that the same Department is legally responsible for ensuring that these schools have already been providing?
This is not a new issue. In 2011, the Southern Poverty Law Center sued the Recovery School District in New Orleans, because the mass charterization of the schools after Hurricane Katrina left students with disabilities poorly served. According to SPLC:
The Individuals with Disabilities Education Improvement Act (IDEA), requires that New Orleans public school students with disabilities receive equal access to educational services and are not unlawfully barred from the classroom. This law applies to both charter schools and publicly operated schools. The law specifically requires that students with disabilities are identified so that they can receive needed services — including an individualized education plan and services to ensure that children with disabilities can transition productively into adulthood. These students have a federal right to receive counseling, social work and other related services that are necessary to ensure that these youth obtain an education… Despite this federal law, some students with disabilities in New Orleans public schools have been completely denied enrollment as a result of their disability, forced to attend schools lacking the resources necessary to serve them and punished with suspensions in record numbers. Still, other students’ disabilities are being completely overlooked due to a failure to identify them.
The fifth priority seeks to promote controversial on-line learning. We know that virtual charters have the worst academic record of any kind of school and that they are known to suck millions of dollars out of state public school budgets. And the idea of blended learning—larger classes, fewer teachers, and more computers—is being questioned as a pedagogical theory, while it is known to cut costs for personnel.
What we can confirm by reading the Federal Register is that Arne Duncan’s Department of Education is squarely behind charters. It is also fully engaged in the practice of competitive grant funding. I3 money—money for the Office of Innovation and Improvement—is proposed in the President’s 2014 budget at $150 million. I would prefer to see this money put into the long-underfunded, Title I Formula program to improve the public schools in the poorest communities where families struggle and state school funding lags across virtually all the states. These are the communities now subject to punitive sanctions like school closures.
Action: Proposed Priorities, Requirements, And Definitions.
Summary: The Assistant Deputy Secretary for Innovation and Improvement proposes priorities, requirements, and definitions for CSP [Charter School Program] Grants for National Leadership Activities and may use these priorities, requirements, and definitions for a competition in fiscal year (FY) 2013 and later years. The Assistant Deputy Secretary is taking this action to ensure that projects funded with CSP Grants for National Leadership Activities address key policy issues currently facing charter schools and impact stakeholders on a national scale.
Invitation to Comment: We invite you to submit comments regarding this document. To ensure that your comments have maximum effect in developing the final priorities, requirements, and definitions, we urge you to identify clearly the specific proposed priority, requirement, or definition that each comment addresses.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, and definitions. 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 the Department’s programs and activities.
During and after the comment period, you may inspect all public comments about this notice in room 4W224, 400 Maryland Avenue SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.
Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record. 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 purpose of the CSP is to increase national understanding of the charter school model by—
(1) Providing financial assistance for the planning, program design, and initial implementation of charter schools;
(2) Evaluating the effects of charter schools, including the effects on students, student achievement, student growth, staff, and parents;
(3) Expanding the number of high-quality charter schools available to students across the Nation; and
(4) Encouraging the States to provide support to charter schools for facilities financing in an amount more nearly commensurate to the amount the States have typically provided for traditional public schools.
The purpose of the CSP Grants for National Leadership Activities is to support efforts by eligible entities to improve the quality of charter schools by providing technical assistance and other types of support on issues of national significance and scope.
Proposed Priortities: This notice contains five proposed priorities.
Background: The Department most recently conducted competitions for CSP Grants for National Leadership Activities in FYs 2006 and 2010. In those competitions, we invited applications for projects designed to improve stakeholder capacity to support high-quality charter schools but did not require or give competitive preference to particular types of projects. As a result, applications submitted under the competition varied considerably in scope and content.
To ensure that projects funded with CSP Grants for National Leadership Activities in future years address key policy issues facing charter schools on a national scale, the Department proposes the priorities in this notice. These priorities take into consideration the continuing growth of charter schools across the nation and the increasing need to support the capacity and oversight of all charter schools. The priorities also recognize the important role that charter schools can play in improving educational outcomes for students with disabilities and English Learners and in creating personalized, technology-based learning environments for high-need students (as defined in this notice).
Proposed Priority 1—Improving Efficiency Through Economies of Scale
Traditional public school districts benefit from economies of scale across multiple aspects of school operations. Compared to charter schools, traditional public schools tend to have higher student enrollment, which may result in lower average costs per student for various activities or a wider variety of available support services. For example, traditional public school districts can make mass purchases of supplies, equipment, and non-academic services, including facilities maintenance, food, data systems, insurance, and transportation services. These districts can consolidate academic services across a large number of schools, including services such as curriculum development and alignment, student assessments, and professional development for teachers and school leaders. They can consolidate services for specific student populations, such as students with disabilities or English Learners. They can provide a range of arts and athletic opportunities for their students. They have the ability, through different funding structures, sustained economies of scale, and historical relationships with colleges, universities, and nonprofit organizations, to recruit teachers and leaders more broadly, and in a more structured way, than charter schools.
Charter schools are explicitly designed to have the autonomy to employ innovative, promising approaches to public education. This autonomy, however, can limit charter schools’ ability to take advantage of the economies of scale available to traditional public school districts, impeding the charter school sector’s ability to improve its performance and scale up high-quality charter school models.
As the charter school sector continues to grow, there is an increasing opportunity for charter schools to form consortia to achieve the benefits of economies of scale and, thus, improve performance and increase the number of high-quality charter schools nationwide. The Department proposes this priority to support such efforts.
This proposed priority is for projects of national significance and scope that promote shared systems for acquiring goods or services to achieve efficiencies in the use of time, staff, money, services for special populations, or other resources for the purpose of creating and sustaining high-quality charter schools (as defined in this notice).
An applicant addressing this priority is not required to apply as part of a partnership or consortium, but must include plans for developing a consortium, or consortia of charter schools that will share systems for acquiring goods or services. The plans must include detailed descriptions (including supporting documentation) of the following:
(1) The activities of the proposed consortium or consortia and demonstrate how and to what extent the activities will achieve efficiencies in the use of time, staff, money, services for special populations, or other areas related to operating high-quality charter schools;
(2) Proposed members of the consortium or consortia, how the composition of this consortium or consortia contributes to achieving efficiencies, the specific activities each member will carry out, and how specific activities will include entities outside of the network that the lead applicant currently manages;
(3) How proposed project activities will help create and sustain high-quality charter schools;
(4) How information about the proposed project’s activities will be disseminated primarily to charter schools as the primary stakeholder group, and secondarily to other stakeholders, such as charter school support organizations and authorized public chartering agencies, as appropriate, at the charter school national level (as defined in this notice);
(5) How the dissemination strategy will include assembling a community of practice (as defined in this notice) for the stakeholder group(s) served; and
(6) The national significance and scope of the proposed project.
Proposed Priority 2—Improving Accountability
While there are many high-performing charter schools across the nation, charter school performance varies significantly and too many persistently low-performing charter schools are not held accountable for their results. (For example, see the January 30, 2013 report from the Center for Research on Education Outcome’s entitled, “Charter School Growth and Replication”, which analyzes student performance and progress data from 25 States, and the District of Columbia, that have enacted charter school laws.) 
Despite 43 distinct sets of State laws governing charter schools, and almost 1,000 different entities authorizing charter schools, there are some common promising practices that provide the degree of oversight necessary to ensure that charter schools deliver on their promises. Over the lifespan of a charter school, authorizing practices will have a direct impact on the quality of the charter school sector. Authorizers are responsible for conducting rigorous application reviews to ensure new schools are of a high quality. Once schools are open, accountability practices for charter schools need to be strengthened within States. For example, charter school renewal should occur regularly enough to ensure accountability and provide an opportunity for amendment of the charter or closure of poor-performing schools. Authorizers should have clear policies to hold schools accountable more consistently for meeting their academic, financial, and operational performance goals, as well as for complying with all applicable laws, including civil rights laws requiring equal access.
Through the development, refinement, and dissemination of authorizers’ promising practices in areas such as charter school approval, performance monitoring, charter contract renewal, and charter school closure, the Department expects authorizers to hold charter schools more accountable and to increase the number of high-quality seats available to students. These promising practices will help ensure that new charter schools have demonstrated that they are positioned to succeed, poor-performing charter schools are closed, and high-quality charter schools are replicated and expanded to serve more students.
This proposed priority is for projects of national significance and scope that are designed to improve authorized public chartering agencies’ capacity to conduct rigorous application reviews, monitor and oversee charter schools using data and measurable performance goals, close underperforming schools, replicate and expand high-performing schools, maintain a portfolio of high-quality charter schools, and evaluate and communicate the performance of that portfolio.
Applicants addressing this priority must provide detailed descriptions (including supporting documentation) of the following:
(1) How the proposed project will improve, within a variety of communities in one or more States, authorized public chartering agencies’ capacity to:
i. Approve only high-quality charter schools that meet the standards of a rigorous application process and review;
ii. Monitor and oversee charter schools through the regular collection of data, including student performance and financial data, and measurable performance goals;
iii. Identify schools eligible for renewal and those that should be closed through clear renewal and revocation criteria;
iv. Maintain portfolios of high-quality charter schools by evaluating authorizer and portfolio performance and disseminating information on the performance of those portfolios;
(2) The applicant’s prior success in improving, within a variety of communities in one or more States, authorized public chartering agencies’ capacity to:
i. Approve only high-quality charter schools that meet the standards of a rigorous application process and review;
ii. Monitor and oversee charter schools through the regular collection of data, including student performance and financial data, and measurable performance goals;
iii. Identify schools eligible for renewal and those that should be closed through clear renewal and revocation criteria;
iv. Maintain portfolios of high-quality charter schools by evaluating authorizer and portfolio performance and disseminating information on the performance of those portfolios, and help improve the ability of other authorized public chartering agencies to produce similar results;
(3) How dissemination activities focus on authorized public chartering agencies as the primary stakeholder group, and secondarily on other stakeholders, such as charter school support organizations or charter schools, as appropriate, at the charter school national level;
(4) How the dissemination strategy will include assembling a community of practice for the stakeholder group(s) served; and
(5) The national significance and scope of the proposed project.
Proposed Priority 3—Students With Disabilities
As public schools, it is essential that charter schools provide equitable access and appropriate educational services to all students, regardless of disability, as set forth in the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 and the Department’s Section 504 regulations. A GAO report released in June, 2012 found that charter schools enrolled a lower percentage of students with disabilities than traditional public schools. This discrepancy may have many contributing factors that are likely to vary from school to school. Regardless, charter schools should have the capacity to serve all students with disabilities irrespective of severity or type of disability. The Department believes that charter schools are well-positioned to develop new approaches to meeting the needs of students with disabilities and improve educational outcomes for these students. The Department proposes a priority for projects designed to improve charter schools’ capacity, through a variety of methods, to recruit and serve students with disabilities more effectively.
This proposed priority is for projects of national significance and scope that are designed to increase access to charter schools for students with disabilities and increase the schools’ enrollment, as well as improve achievement (including student achievement and student growth) and attainment (including high school graduation rates and college enrollment rates) for students with disabilities in charter schools, through one or both of the following activities:
(1) Developing strategies and tools to increase access to charter schools for students with disabilities and increase the schools’ capacity to enroll students with disabilities, and improve student achievement, student growth, high school graduation rates, and college enrollment rates for students with disabilities.
(2) Disseminating promising practices that increase access to charter schools for students with disabilities and increase the schools’ capacity to enroll students with disabilities; and improve student achievement, student growth, high school graduation rates, and college enrollment rates for students with disabilities.
Proposed Priority 4—English Learners
From 2001 to 2010 the number of students identified as English Learners increased significantly, growing from approximately 3,700,000 to 4,660,275 nationwide. In 2011, the National Assessment of Educational Progress reports on mathematics, reading, and science showed a difference in scores between English Learners and non-English Learners of 49, 47, and 62 percent, respectively.  The Department believes that charter schools are well-positioned to develop new approaches to meeting the needs of English Learners and can play an integral role in closing the achievement and attainment gaps between English Learners and their peers. The Department proposes a priority for projects designed to improve charter schools’ capacity, through a variety of methods, to recruit and serve English Learners more effectively.
This proposed priority is for projects of national significance and scope that are designed to increase access to charter schools for English Learners and increase the schools’ enrollment, as well as improve achievement (including student achievement and student growth) and attainment (including English proficiency, high school graduation rates, and college enrollment rates) for English Learners in charter schools, through one or more of the following activities:
(1) Developing strategies and tools to increase access to charter schools for English Learners and increase the schools’ capacity to enroll English Learners, and improve student achievement, student growth, English proficiency, high school graduation rates, and college enrollment rates for English Learner students.
(2) Disseminating promising practices that increase access to charter schools for English Learners and increase the schools’ capacity to enroll English Learners, and improve student achievement, student growth, English proficiency, high school graduation rates, and college enrollment rates for English Learners.
Proposed Priority 5—Personalized Technology-Enabled Learning
Learning models that blend traditional, classroom-based teaching and learning with virtual, online, or digital delivery of personalized instructional content offer the potential to transform public education and create significant improvements in students’ achievement, growth, engagement, and non-cognitive skills. In order to achieve superior outcomes, the effective development and implementation of these models are essential.
In particular, technology-enabled learning tools must be functional, engaging, user-friendly, appropriate for students with diverse learning needs, and aligned with college-and-career-ready standards. Moreover, it is of great importance to ensure equitable access to and use of these tools and supports by high-need students.
In light of the operational autonomy that charter schools possess and the focus that many of these schools have on serving high-need students, charter schools are uniquely positioned to contribute to the development and implementation of instructional models that effectively incorporate technology-enabled personalized learning tools and supports for high-need students. The Department proposes this priority to stimulate and support such efforts.
This proposed priority is for projects of national significance and scope that are designed to improve achievement and attainment outcomes for high-need students through the development and implementation in charter schools of technology-enabled instructional models, tools, and supports that personalize instruction.
Types of Priorities
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:
Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).
Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).
Invitational priority: Under an invitational priority we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).
The Assistant Deputy Secretary for Innovation and Improvement proposes 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. By requiring that applicants provide a charter school logic model supporting their projects and restricting eligibility for grants to specific types of entities, the Department will ensure that grantees have the preparation and experience to be successful with a CSP Grant for National Leadership Activities.
Proposed Application Requirements
An applicant for a CSP Grant for National Leadership Activities must provide a charter school logic model (as defined in this notice) supporting its project.
Eligible applicants include (1) State educational agencies (SEAs) in States with a State statute specifically authorizing the establishment of charter schools; (2) authorized public chartering agencies; (3) public and private nonprofit organizations with a mission that explicitly includes supporting charter schools; and (4) public and private nonprofit organizations in partnership with an SEA, authorized public chartering agency, or a public or private nonprofit organization with a mission that explicitly includes supporting charter schools. Eligible applicants may apply as a group or consortium.
The Secretary invites comment on this eligibility requirement, particularly regarding whether public and private nonprofit organizations should be required to have a mission that explicitly includes supporting charter schools and the elements that should be required to confirm eligibility.
The Assistant Deputy Secretary for Innovation and Improvement proposes the following definitions for this program. We may apply one or more of these definitions in any year in which the program is in effect.
The proposed definitions for “high-quality charter school” and “significant compliance issue” are based on the definitions in the notice of final priorities, requirements, and definitions for the CSP Replication and Expansion grant program, published in the Federal Register on July 12, 2011 (76 FR 40898). The proposed definitions for “graduation rate” and “student achievement” are identical to the definitions in the Supplemental Priorities for Discretionary Grant Programs, published in the Federal Register on December 15, 2010 (75 FR 78510), and corrected on May 12, 2011 (76 FR 27637). The proposed definitions for “student growth” and “high-need students” are based on the definitions in the Supplemental Priorities for Discretionary Grant Programs, published in the Federal Register on December 15, 2010 (75 FR 78510), and corrected on May 12, 2011 (76 FR 27637). The proposed definition for “charter school logic model” is based on the definition of “logic model” in the Direct Grant Programs and Definitions That Apply to Department Regulations Notice of Proposed Rulemaking, published in the Federal Register on December 14, 2012 (77 FR 74392).
Charter school logic model means a well-specified conceptual framework that identifies key components of the proposed practice, strategy, or intervention (i.e., the active “ingredients” that are hypothesized to be critical to achieving the relevant outcomes) and describes the relationships among the key components and outcomes, theoretically and operationally.
Charter school national level means, with respect to an applicant’s dissemination strategy, that the strategy covers a wide variety of charter schools, authorized public chartering agencies, charter support organizations, and other stakeholder groups within multiple States across the country, including rural and urban areas.
Community of practice means a group of stakeholders that interacts regularly to solve a persistent problem or to improve practice in an area that is important to them and the success of the grant project.
Graduation rate means a four-year adjusted cohort graduation rate consistent with 34 CFR 200.19(b)(1) and may also include an extended-year adjusted cohort graduation rate consistent with 34 CFR 200.19(b)(1)(v) if the State in which the proposed project is implemented has been approved by the Secretary to use such a rate under Title I of the ESEA.
High-need students means children and students at risk of educational failure, such as children and students who are living in poverty, who are English Learners, who are far below grade level or who are not on track to becoming college- or career-ready by graduation, who have left school or college before receiving, respectively, a regular high school diploma or a college degree or certificate, who are at risk of not graduating with a diploma on time, who are homeless, who are in foster care, who are pregnant or parenting teenagers, who have been incarcerated, who are new immigrants, who are migrant, or who have disabilities.
High-quality charter school means a school that shows evidence of strong academic results for the past three years (or over the life of the school, if the school has been open for fewer than three years), based on the following factors:
(1) Increased student academic achievement and attainment for all students, including, as applicable, educationally disadvantaged students;
(2) Either (i) Demonstrated success in closing historic achievement gaps for the subgroups of students described in section 1111(b)(2)(C)(v)(II) of the ESEA; or
(ii) No significant achievement gaps between any of the subgroups of students described in section 1111 (b)(2)(C)(v)(II) of the ESEA and significant gains in student academic achievement have been made with all populations of students served by the charter school;
(3) Achieved results (including performance on statewide tests, annual high school graduation rates, college attendance rates, and college persistence rates where applicable and available) for low-income and other educationally disadvantaged students served by the charter school; and
(4) No significant compliance issues (as defined in this notice), particularly in the areas of student safety and financial management.
Significant compliance issue means a violation that did, will, or could lead to the revocation of a school’s charter.
Student achievement means—
(a) For tested grades and subjects—
(1) A student’s score on the State’s assessments under the ESEA; and, as appropriate,
(2) Other measures of student learning, such as those described in paragraph (b) of this definition, provided they are rigorous and comparable across schools.
(b) For non-tested grades and subjects: Alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools.
Student growth means the change in achievement data for an individual student between two or more points in time. Growth may also include other measures that are rigorous and comparable across classrooms.
Final Priorities, Requirements and Definitions
We will announce the final priorities, requirements, and definitions in a notice in the Federal Register. We will determine the final priorities, requirements, and definitions after considering responses to this notice and other information available to the Department. This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria subject to meeting applicable rulemaking requirements.
This notice does not solicit applications. In any year in which we choose to use one or more of these proposed priorities, requirements, 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 proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practical—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, and definitions only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. 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.
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and respondent burden, the Department conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that the public understands the Department’s collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
These proposed regulations contain information collection requirements that are approved by OMB under OMB control number 1894-0006; these proposed regulations do not affect the currently approved data collection.
We estimate that each applicant would spend approximately 176 hours of staff time to address the proposed requirements, prepare the application, and obtain necessary clearances. The total number of hours for all expected applicants is an estimated 7,040 hours. We estimate the total cost per hour of the applicant-level staff who will carry out this work to be $57 per hour. The total estimated cost for all applicants would be $401,280.
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 contact person listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.
Dated: November 26, 2013.
Nadya Chinoy Dabby,
Associate Assistant Deputy Secretary for the Office of Innovation and Improvement,delegated the authority to perform the functions and duties of the Assistant Deputy Secretary.