This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

74392 

Vol. 77, No. 241 

Friday, December 14, 2012 

DEPARTMENT OF EDUCATION 

34 CFR Parts 75 and 77 

RIN 1890–AA14 

[Docket ID ED–2012–OII–0026] 

Direct Grant Programs and Definitions 

That Apply to Department Regulations 

AGENCY: Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

amend the regulations in 34 CFR parts 

75 and 77 of the Education Department 

General Administrative Regulations 

(EDGAR) in order to improve the 

Department’s ability to promote projects 

supported by evidence; evaluate the 

performance of discretionary grant 

programs and grantee projects; review 

grant applications using selection 

factors that promote reform objectives 

related to project evaluation, 

sustainability, productivity, and 

capacity to scale; and reduce burden on 

grantees in selecting implementation 

sites, implementation partners, or 

evaluation service providers for their 

proposed projects. These proposed 

changes would allow the Department to 

be more effective and efficient when 

selecting discretionary grantees, provide 

higher-quality data to Congress and the 

public, and better focus applicants on 

the particular goals and objectives of the 

programs to which they apply for grants. 

DATES: We must receive your comments 

on or before February 12, 2013. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by email. Please 

submit your comments only one time, in 

order to ensure that we do not receive 

duplicate copies. In addition, please 

include the Docket ID at the top of your 

comments. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov to submit 

your comments electronically. 

Information on using Regulations.gov, 

including instructions for accessing 

agency documents, submitting 

comments, and viewing the docket, is 

available on the site under ‘‘How To Use 

This Site.’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 

regulations, address them to Margo 

Anderson, U.S. Department of 

Education, 400 Maryland Avenue SW., 

Room 4W313, Washington, DC 20202– 

5900. 

Privacy Note: The Department’s policy for 

comments received from members of the 

public is to make these submissions 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: Erin 

McHugh, U.S. Department of Education, 

400 Maryland Avenue SW., Room 

4W319, Washington, DC 20202. 

Telephone: (202) 401–1304 or by email: 

erin.mchugh@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD) or text 

telephone (TTY), call the Federal Relay 

Service (FRS) toll free at 1–800–877– 

8339. 

SUPPLEMENTARY INFORMATION: 

Invitation to Comment on Proposed 

Regulations 

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 13563 and their overall requirement 

of reducing regulatory burden that 

might result from these proposed 

regulations. Please let us know of any 

ways we could reduce potential costs or 

increase potential benefits while 

preserving the effective and efficient 

administration of the Department’s 

programs and activities. 

Because Executive Order 12866 and 

the presidential memorandum on ‘‘Plain 

Language in Government Writing’’ 

require each agency to write regulations 

that are easy to understand, we invite 

you to comment 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 

‘‘§ ’’ and a numbered heading; for 

example, § 75.210 General selection 

criteria. 

• Could the description of the 

proposed regulations in 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? 

Retrospective Review of EDGAR 

On January 21, 2011, President 

Obama issued Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review’’ (76 FR 3821). The order 

requires all Federal agencies to 

‘‘consider how best to promote 

retrospective analysis of rules that may 

be outmoded, ineffective, insufficient, 

or excessively burdensome, and to 

modify, streamline, expand, or repeal 

them in accordance with what has been 

learned.’’ Accordingly, on August 22, 

2011, the Department issued its Plan for 

Retrospective Analysis of Existing 

Regulations. (See ed.gov/policy/gen/reg/ 

retrospective-analysis/index.html). 

Our plan identified a number of 

regulatory initiatives for retrospective 

review and analysis. One of those 

initiatives, already begun in 2010, was 

a review of the Department’s 

discretionary grants process. Part of that 

initiative was a close retrospective 

review of the Education Department 

General Administrative Regulations 

(EDGAR), which govern discretionary 

grantmaking and administration. 

As part of this retrospective review of 

EDGAR, we identified key provisions 

that required substantive changes to 

improve transparency and the efficiency 

and effectiveness of our grant-making 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74393 

functions. These included our 

regulations on establishing and 

collecting data on measures of grantee 

performance, the selection criteria that 

peer reviewers use to evaluate 

applications, and the procedures 

grantees must use to select research sites 

and evaluators. This notice is the result 

of the Department’s regulatory review of 

those provisions. 

On May 10, 2012, President Obama 

issued Executive Order 13610, 

‘‘Identifying and Reducing Regulatory 

Burdens.’’ (77 FR 28469). Among other 

things and as part of their retrospective 

review, this order requires Federal 

agencies to invite ‘‘public suggestions 

about regulations in need of 

retrospective review and about 

appropriate modifications to such 

regulations.’’ 

Therefore, in addition to your 

comments on the specific regulations 

proposed in this notice, we seek input 

on other regulations within EDGAR that 

may be in need of modification and 

amendments to those regulations that 

you would suggest. We are particularly 

interested in your feedback on the 

following questions: 

• Are the regulations achieving their 

intended outcomes, e.g., do they 

establish a fair and equitable process for 

selecting applications for funding while 

ensuring transparency in the selection 

process and enhancing accountability 

for funding decisions? 

• Have changes in the economy or 

other external factors led to an increase 

or decrease in costs imposed on 

applicants for, and recipients of, 

discretionary grants? 

• Are any of the regulations 

outmoded, unnecessary, or out of date? 

• Do the regulations cause confusion 

or create other questions? If so, how 

could we amend the regulations to 

address this problem? 

• What do relevant data show about 

the effectiveness and benefits of the 

regulations in comparison to their costs? 

Although the Department may or may 

not respond to comments that we 

receive on the retrospective review of 

these other provisions of EDGAR, we 

will use that feedback to further inform 

and plan our retrospective review 

efforts. 

During and after the comment period, 

you may inspect all public comments 

about these proposed regulations by 

accessing Regulations.gov. You may also 

inspect the comments, in person, in 

Room 4W335, 400 Maryland Avenue 

SW., Washington, DC, between the 

hours of 8:30 a.m. and 4:00 p.m., 

Washington, DC time, Monday through 

Friday of each week except Federal 

holidays. Please contact the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

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 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. 

Summary of Proposed Changes 

In this notice, the Secretary proposes 

amendments that would: 

1. Allow the Secretary, in an 

application notice for a competition, to 

establish performance measurement 

requirements; 

2. Revise requirements regarding 

project evaluations submitted to the 

Department by grantees; 

3. Authorize applicants to use 

simplified procurement procedures to 

select implementation sites and procure 

services from implementation and 

evaluation service providers, but only if 

the site or service provider is named in 

the grant application; 

4. Allow the Secretary, through an 

announcement in the Federal Register, 

to authorize grantees under particular 

programs to award subgrants to directly 

carry out programmatic activities. The 

subgrantees and programmatic activities 

must be identified and described in the 

grantees’ applications; 

5. Add one new selection criterion 

and revise two existing criteria that the 

Department could choose to use to 

evaluate applications. The new criterion 

would be used to assess the extent to 

which a proposed project could be 

brought to scale. We would add five 

new factors to the criterion ‘‘Quality of 

the Project Evaluation’’ that could be 

used to assess how well a proposed 

project evaluation would produce 

evidence about the project’s 

effectiveness. Finally, we would revise 

one factor and add five new factors to 

the criterion ‘‘Quality of the Project 

Design’’; 

6. Authorize program offices to 

consider the effectiveness of proposed 

projects under a new priority that could 

be used as either an absolute, 

competitive preference, or invitational 

priority; and 

7. Allow the Secretary to fund data 

collection periods after the end of the 

substantive work of a project so that 

project outcomes could be assessed 

using data from the entire project 

period. 

As discussed in more detail later in 

this notice, the proposed changes would 

strengthen the Secretary’s authority to: 

(a) Evaluate grantee performance; (b) 

provide applicants and grantees with 

greater flexibility in selecting 

implementation sites, implementation 

partners, and evaluation service 

providers; (c) allow the Secretary to 

authorize subgrants for particular 

programs; (d) improve the targeting of 

selection criteria and factors so that 

applicants are better informed and able 

to focus their application narratives on 

specific program objectives; and (e) 

allow consideration of the strength of 

evidence supporting the proposed 

project when evaluating grant 

applications. 

Significant Proposed Regulations 

We group major issues according to 

subject, with appropriate sections of the 

proposed regulations referenced in 

parentheses. We discuss other 

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. 

I. Performance Measurement 

Background 

Congress passed the Government 

Performance and Results Act of 1993 

(GPRA) (Pub. L. 103–62) in order to 

hold Federal agencies accountable for 

achieving program results. Under GPRA, 

agencies are required to report to 

Congress on the effectiveness of the 

programs they administer, based on 

performance measures established for 

those programs. 

The purposes of GPRA are to improve 

Federal program effectiveness and 

accountability to the public by: 

Focusing on results, service quality, and 

customer satisfaction; giving Federal 

program managers information about 

program results and service quality; and 

providing objective information to 

Congress and the public on the relative 

effectiveness and efficiency of Federal 

programs and spending. The GPRA 

Modernization Act of 2010 (Pub. L. 111– 

352) supports additional improvements 

in Federal agencies’ performance 

planning and reporting. Federal 

agencies are required to make their 

strategic and annual plans publicly 

available and post quarterly updates via 

a central, Government-wide Web site. 

The goal of the GPRA Modernization 

Act is to improve the use of data in 

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policy, budget, and management 

decision-making. 

GPRA requires Federal agencies to 

establish performance measures and 

targets for programs they administer and 

to report annually to the Office of 

Management and Budget (OMB) on the 

extent to which those programs are 

meeting their targets. For discretionary 

(non-formula) grant programs, the 

Department establishes performance 

measures to address the extent to which 

the program as a whole is effective in 

achieving its goals through the projects 

it funds. However, we have found that 

grantees’ performance data do not 

consistently correspond to overall 

program performance measures because 

grantees typically only report on and 

measure data related to project-specific 

outcomes. 

The Secretary therefore proposes the 

following amendments to improve the 

Department’s ability to collect reliable, 

valid, and meaningful data for 

evaluating the outcomes of Department 

programs and the performance of 

individual grantees. 

Proposed Regulatory Changes 

34 CFR Part 75 

Section 75.110 Information Regarding 

Performance Measurement 

Current Regulations: None. 

Proposed Regulations: Proposed 

§ 75.110 would allow the Secretary to 

establish performance measurement 

requirements in an application notice 

for a competition. These requirements 

could include performance measures, 

baseline data, performance targets, and 

performance data. This proposed 

section would also allow the Secretary 

to establish in an application notice a 

requirement that applicants propose 

performance measures for their projects, 

as well as the baseline data and 

performance targets for each proposed 

measure. 

Reasons: To improve the likelihood 

that grantees collect and report data that 

effectively measure the outcomes of 

each grant, the proposed amendments 

would allow the Secretary to require 

discretionary grant applicants to include 

program-level and project-specific 

performance measures, baseline data, 

and targets in their applications. 

Requiring this information improves the 

ability of the Department to measure 

program effectiveness under GPRA 

performance measures, clarifies that 

grantees will be required to report on 

their project-specific performance 

measures, and stresses that the extent to 

which grantees meet performance 

targets will be considered in making 

continuation grants. 

II. Procurement and Subgrant Processes 

for Entities Named in Applications 

Proposed Regulatory Changes 

34 CFR Part 75 

Background: 

From our experience, many 

applicants find it useful to describe 

elements of their proposed evaluations 

in their applications, including 

implementation sites or the provider 

that would conduct the project 

evaluation should the proposed project 

be funded. This information is often an 

important factor in the Department’s 

peer review of discretionary grant 

applications, particularly in instances 

when the quality of the project 

evaluation is a selection criterion. 

The Department’s procurement 

regulations in 34 CFR 74.43 and 34 CFR 

80.36(c) provide that a grantee must 

conduct its procurement transactions in 

a manner that provides, to the 

maximum extent practical, full and 

open competition. This requirement is 

intended to ensure that grantees 

consider contractor performance 

objectively and offer an opportunity for 

providers to compete for the contract. 

While the Department values full and 

open competition, the Department also 

recognizes that this requirement 

presents challenges for applicants 

whose applications would be 

strengthened by including details about 

the implementation sites and the 

evaluation service provider. The 

Secretary proposes to reduce this 

burden by simplifying the procurement 

process used to select implementation 

sites, implementation partners, and 

evaluation service providers. 

Section 75.135 Competition Exception 

for Implementation Sites, 

Implementation Partners, or Evaluation 

Service Providers 

Current Regulations: There is no 

current § 75.135. The Department’s 

procurement regulations in 34 CFR 

74.43 and 34 CFR 80.36(c) provide that 

a grantee must conduct its procurement 

transactions in a manner that provides 

full and open competition. In many 

cases, grantees must use formal 

competition procedures to select 

contractors. Under these current 

provisions, an applicant for a grant 

requiring an evaluation would need, in 

many cases, to conduct a formal bidding 

process to select implementation sites, 

implementation partners, or evaluation 

service providers before submitting its 

application to the Department or 

following award of the grant. These 

types of procurement requirements can 

be very costly and time consuming at a 

time when the applicant cannot be sure 

it will be selected for a grant. Because 

the selection of implementation sites or 

partners and evaluation service 

providers is often an important factor in 

designing a project and submitting a 

high-quality application, we propose an 

exception to the Department’s 

procurement regulations for entities 

named in a grant application. 

Proposed Regulations: The Secretary 

proposes to add a new § 75.135 that 

would exempt certain applicants from 

the full competitive contracting 

requirements in 34 CFR 74.43 and 

80.36(c). Specifically, an applicant for a 

grant that must be conducted at 

multiple sites or that requires an 

external evaluation would not be 

required to comply with the applicable 

formal competition requirements in 34 

CFR 74.43 and 80.36(c) when entering 

into a contract if— 

(1) The contract is with an entity that 

agrees to provide a site or sites where 

the applicant would conduct the project 

activities under the grant or the contract 

is with the evaluation service provider 

that would conduct the project 

evaluation; 

(2) The implementation sites, 

implementation partners, or evaluation 

service providers are identified in the 

application for the grant; and 

(3) The implementation sites, 

implementation partners, or evaluation 

service providers are included in the 

application in order to meet a 

regulatory, statutory, or priority 

requirement related to the competition. 

A successful applicant would need to 

certify that any employee, officer, or 

agent participating in the selection, 

award, or administration of a contract is 

free of any real or apparent conflict of 

interest. 

In the case of a contract for a provider 

to conduct the project evaluation, the 

proposed amendment would permit the 

applicant or grantee to use the informal 

competition requirements for small 

purchases that are currently applicable 

only to governments under 34 CFR 

80.36(d)(1), regardless of whether the 

applicant or grantee is a government 

entity and regardless of whether the 

purchase meets the small purchase 

threshold. 

During the course of the grant, a 

successful applicant would be required 

to obtain the Department’s permission 

to change any implementation site, 

implementation partner, or evaluation 

service provider that the applicant 

specified in the application and selected 

under proposed § 75.135. The exception 

also would not relieve an applicant of 

the obligation to conduct an informal 

review of evaluation service providers 

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in order to determine the best available 

provider or from its obligations under 

the Department’s other procurement 

requirements. 

A successful applicant that does not 

meet the three criteria above would not 

be exempt from complying with the 

applicable formal competition 

requirements in 34 CFR 74.43 and 

80.36(c) when entering into a contract. 

For example, an applicant that does not 

identify its implementation sites, 

implementation partners, or evaluation 

service provider in its application 

would be required to comply with the 

applicable formal competition 

requirements in 34 CFR 74.43 and 

80.36(c). 

Reasons: This proposed new section 

addresses a difficulty many applicants 

face when selecting implementation 

sites, partners, and evaluation service 

providers prior to submitting their 

applications. Requiring grantees to use 

formal competitive procedures to select 

implementation sites and partners could 

significantly diminish both the ability of 

many applicants to compete for grants 

and the quality of project evaluations. 

For example, without this proposed 

regulation, a successful applicant would 

be limited in its ability to select 

implementation sites that include 

specific populations that it proposed to 

serve through the project or to work 

with the evaluation service provider 

that assisted in designing the applicant’s 

evaluation plan. 

Formal competition requirements also 

inhibit the ability of many applicants to 

select evaluators who would work with 

the applicants to design project 

evaluation plans. Some of the best 

evaluations of projects may be 

conducted by evaluation service 

providers that are involved in the initial 

design of a project. Such work generally 

takes place during the development of 

an application, before the applicant 

knows whether it will receive a grant. 

Thus, requiring an applicant to hold a 

formal competition involving sealed 

bids or competitive proposals in order 

to select an evaluation service provider 

(either before or after it receives a grant) 

can have major negative consequences. 

For example, an evaluation service 

provider would be excluded from the 

competition to select the project 

evaluator under the procurement 

requirements in parts 74 and 80 if it 

helped prepare an application and 

helped the applicant set up the 

standards used to select an evaluation 

service provider or contractor (see 34 

CFR 74.42, 74.43, and 80.36). Highquality evaluation of a project funded by 

the Department may be hindered if an 

evaluation service provider that 

designed the evaluation strategy for an 

application is excluded from the 

evaluation procurement competition for 

that project. Given the uncertainty of the 

competitive process, the Secretary also 

believes that applicants should not be 

required to use formal competition 

procedures to select an evaluation 

service provider at the time they prepare 

their applications. 

While the Secretary proposes to 

remove the competition requirement for 

selecting sites and implementation 

partners and thus permit applicants and 

grantees to use informal procedures 

instead, the Secretary would continue to 

require all applicants to comply with 

the other procurement requirements in 

parts CFR 74 and 80, including the 

requirements for cost price analysis, 

standards of conduct, conflicts of 

interest, and the prohibition of 

contingent payment for services. 

Additionally, the proposed amendment 

does not supersede any State laws 

regarding procurement. 

Finally, based on the other 

procurement requirements in CFR parts 

74 and 80, these exceptions would not 

relieve an applicant of its responsibility 

to document that it made genuine efforts 

to select the best implementation sites, 

implementation partners, or evaluation 

service providers for the project, 

considering qualifications, capabilities, 

availability, price, and other important 

factors. 

§ 75.708 Prohibition on Subgrants. 

Current Regulations: Section 

75.708(a) prohibits grantees from 

awarding subgrants unless specifically 

authorized by statute. 

Proposed Regulations: The Secretary 

proposes to revise the prohibition on 

subgrants in § 75.708(a) to allow 

subgrants when authorized by statute or 

as provided for by a new § 75.708(b). 

Under this proposed new § 75.708(b), 

the Secretary could, through an 

announcement in the Federal Register, 

authorize subgrants when necessary to 

meet the purposes of a particular 

program. In addition, the Federal 

Register announcement would identify 

the types of entities (e.g., State or local 

educational agencies, institutions of 

higher education, or non-profit 

organizations) that could receive 

subgrants under the program. 

We would add § 75.708(c) to provide 

that subgrants, if authorized under 

§ 75.708(b), could be awarded to entities 

identified in a grantee’s application. The 

subgrant must be used to directly carry 

out activities described in the 

application. 

We would add a new § 75.708(d), 

which would establish requirements 

grantees would have to follow in 

awarding subgrants authorized under 

§ 75.708(b). We would re-designate the 

current § 75.708(b) as § 75.708(e). 

Reasons: The revision of § 75.708(a) is 

necessary to provide grantees with 

flexibility to work with partners or other 

entities to carry out project activities. 

The prohibition on subgrants, in 

conjunction with the requirement on 

full and open competition for 

procurement transactions in 34 CFR 

74.43 and 34 CFR 80.36(c), unduly 

restricts grantees from working with 

partners or other entities identified in 

their applications as being directly 

responsible for carrying out projectrelated activities. 

In order to ensure appropriate 

subgranting by Department grantees, our 

proposed revision authorizes subgrants 

only when approved by the Secretary 

for a particular program and only to the 

types of entities (e.g., State or local 

educational agencies, institutions of 

higher education, or non-profit 

organizations) designated by the 

Secretary. In addition the proposed 

revision would limit the entities that 

may receive subgrants to those that: (1) 

Are identified in a grantee’s application, 

or (2) are competitively selected using 

the grantee’s procedures for selecting 

subgrants and, (3) will use the subgrant 

directly to carry out project activities 

described in the grantee’s application. 

In all cases where a grantee is working 

with an organization or entity that is not 

identified in its application, not selected 

through a competitive process, or not an 

organization or entity directly 

responsible for carrying out an activity 

or activities described in the grantee’s 

application, the grantee would be 

required to follow the procurement 

procedures set out in 34 CFR Parts 74 

and 80. Additionally, the grantee—as 

the fiscal agent—would remain 

responsible to the Department for the 

proper use of all grant funds, including 

those subgranted to another entity. 

In addition, we would add a new 

§ 75.708(d) requiring grantees to ensure 

that: (1) Subgrants are awarded on the 

basis of an approved budget that is 

consistent with the grantee’s approved 

application and all applicable Federal 

statutory, regulatory, and other 

requirements; (2) subgrants include all 

conditions required by Federal law; and 

(3) subgrantees are aware of 

requirements imposed upon them by 

Federal law, including the Federal antidiscrimination laws enforced by the 

Department. 

This revision provides grantees, in 

programs and to entities designated by 

the Secretary, with the flexibility to 

award subgrants in specific 

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circumstances where necessary to 

ensure proper implementation of an 

approved project without diminishing 

accountability for Federal funds or 

project outcomes. 

III. Selection Criteria 

Background 

The regulations in subpart D of 34 

CFR part 75 set forth the general 

requirements that govern the 

Department’s selection of grantees for 

direct grant awards. For those direct 

grant programs that make discretionary 

grant awards, the Secretary uses 

selection criteria to evaluate 

applications submitted under those 

programs. The regulations specify 

certain selection criteria from which the 

Secretary may choose (general EDGAR 

criteria). They allow the Secretary to use 

program-specific selection criteria and 

the general EDGAR selection criteria, as 

well as to develop other criteria based 

on the statutory provisions for the 

funding program. However, some 

program regulations currently do not 

provide that the Secretary may use 

program-specific selection criteria in 

conjunction with EDGAR and statutory 

criteria. The regulations also describe 

how the Secretary determines which 

criteria and which factors within those 

criteria are used in a particular 

competition and how the Secretary may 

weight the criteria and factors. 

As we have managed competitions 

under the general regulations governing 

selection criteria, we have found that 

some of the regulations on the selection 

of grantees do not provide the 

Department the discretion it needs, 

absent a lengthy rulemaking process, to 

conduct grant competitions closely 

aligned with Department, legislative, 

and program objectives and priorities 

that can change from year to year in 

response to new and unanticipated 

circumstances. These proposed 

regulations, therefore, would provide 

the Department additional flexibility to 

establish criteria based on program 

regulations, in addition to the current 

authority to base criteria on statutory 

provisions. The proposed regulations 

would also specifically authorize 

program offices to establish additional 

selection criteria in § 75.210 based on 

statutory and regulatory provisions. 

These proposed regulations would 

also add new selection factors under the 

‘‘Quality of Project Design’’ criterion on 

organizational and programmatic 

sustainability and organizational 

productivity. The proposed regulations 

would also add to the ‘‘Quality of the 

Project Evaluation’’ criterion five new 

selection factors on the types of 

evidence the evaluation designs would 

produce on the performance and 

implementation of the project. Finally, 

the proposed regulations would 

establish a new criterion to evaluate the 

extent to which an applicant proposes a 

project that could be brought to scale. 

The addition of these selection factors 

would ensure that the Department’s 

discretionary grant programs would 

more effectively promote the 

development and implementation of 

effective and sustainable practices, and 

support adoption and implementation 

of necessary reforms. These proposed 

regulations would not change the way 

the Secretary uses the current and new 

selection criteria and factors. The 

Secretary would continue to use those 

selection criteria and factors that are 

consistent with the purpose of the 

program and permitted under the 

applicable statutes and regulations. 

Proposed Regulatory Changes 

34 CFR Part 75 

Section 75.209 Selection Criteria 

Based on Statutory or Regulatory 

Provisions 

Current Regulations: Current § 75.209 

provides that the Secretary may evaluate 

applications by establishing selection 

criteria based on the statutory 

provisions for the authorized program. 

These provisions include, but are not 

limited to, those related to specific 

statutory selection criteria, allowable 

activities, application content 

requirements, and other pre-award and 

post-award conditions. 

Proposed Regulations: We propose to 

revise § 75.209 to allow the Secretary to 

use selection criteria, the factors in 

program regulations, and those based on 

program statute, along with the 

selection criteria in § 75.210 (often 

referred to as the EDGAR selection 

criteria) to produce more focused 

selection criteria. Thus, § 75.209 would 

allow the Secretary to establish 

selection criteria, and factors for 

considering those criteria, based on 

statutory or regulatory provisions that 

apply to the authorized program, which 

may include, but are not limited to, 

criteria and factors that reflect: 

• Criteria contained in the program 

statute or regulations; 

• Criteria in § 75.210; 

• Allowable activities specified in the 

program statute or regulations; 

• Application content requirements 

specified in the program statute or 

regulations; 

• Program purposes, as described in 

the program statute or regulations; or 

• Other pre-award and post-award 

conditions specified in the program 

statute or regulations. 

Reasons: The Secretary proposes 

amending this section so that the 

Department can establish selection 

criteria based both on a program’s 

statute and regulations. Program 

regulations are used to help clarify and 

fill in the gaps of more general statutory 

requirements and provide further detail 

about authorized activities for a 

program. 

Under this proposed amendment, the 

Secretary would be able to use the more 

specific regulatory provisions to 

establish selection criteria that are 

focused more closely on the intended 

outcomes of the competition and, 

thereby, help applicants to structure 

their applications so as to more 

accurately and concisely describe how 

they will achieve those outcomes. In 

addition to providing for establishment 

of criteria based on program regulations, 

this amendment would allow the 

Secretary to use a combination of 

criteria from the program statute, its 

established regulations, or the general 

selection criteria in § 75.210. 

§ 75.210 General Selection Criteria 

Current Regulations: Current § 75.210 

contains a list of eight selection criteria: 

‘‘Need for Project’’ in paragraph (a); 

‘‘Significance’’ in paragraph (b); 

‘‘Quality of the Project Design’’ in 

paragraph (c); ‘‘Quality of Project 

Services’’ in paragraph (d); ‘‘Quality of 

Project Personnel’’ in paragraph (e); 

‘‘Adequacy of Resources’’ in paragraph 

(f); ‘‘Quality of the Management Plan’’ 

in paragraph (g); and ‘‘Quality of the 

Project Evaluation’’ in paragraph (h). 

Under each of these selection criteria, 

the Secretary may select from a number 

of factors to focus each criterion. 

Proposed Regulations: The Secretary 

proposes to revise the introductory 

paragraph of § 75.210, add selection 

factors to the criteria in § 75.210(c) and 

(h), and add a new criterion as 

paragraph (i) to address the ability of an 

applicant to bring a project to scale. 

Introductory Text: We propose to 

amend the introductory paragraph of 

§ 75.210 so that the Secretary may select 

factors that could be considered under 

a criterion both from the factors listed 

under that criterion and factors listed 

under other criteria. For example, the 

proposed amendment would allow the 

Secretary to establish ‘‘Quality of the 

Project Design’’ as a selection criterion 

and include selection factors from 

‘‘Need for Project’’ (§ 75.210(a)) or 

‘‘Significance’’ (§ 75.210(b)) in the 

factors that will be considered under the 

‘‘Quality of the Project Design’’ 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74397 

1See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?

sid=19. 

criterion. Currently, to use a single 

selection factor under the ‘‘Need for 

Project’’ criterion, the Department, in 

most cases, would need to include the 

‘‘Need for Project’’ criterion, even if the 

factor in question could be 

appropriately grouped with factors from 

another selection criterion, such as 

‘‘Significance.’’ 

Reasons: The purpose of this 

amendment is to provide the Secretary 

with the flexibility to choose and 

combine selection factors established in 

§ 75.210 under various selection criteria. 

This would enable the Department to 

align the selection criteria and factors 

with the goals and objectives of a 

particular discretionary grant 

competition in a more coherent and 

effective fashion than is currently 

permitted. Selection criteria and factors 

that are concise and are aligned as 

closely as possible with the goals and 

objectives of a particular grant 

competition would more effectively 

guide applicants in preparing clearer 

and more focused applications that in 

turn can be more effectively evaluated 

and rated by peer reviewers. The current 

regulations, by contrast, do not allow 

this close focus. Including a greater 

number of selection criteria in 

application notices, solely to include 

particular selection factors, makes it 

more likely that applications will be less 

focused and more difficult for peer 

reviewers to accurately evaluate and 

score. 

Current Regulations: Section 

75.210(c) establishes the selection 

criterion ‘‘Quality of the Project 

Design.’’ The Secretary may consider 

one or more of the 23 factors listed 

under this criterion in determining the 

quality of the project design, including 

the extent to which the project design 

will build capacity that extends beyond 

the project period and establish linkages 

to services provided by other programs. 

Proposed Regulations: The Secretary 

proposes to add new factors to the 

criterion in paragraph (c), (xxiv and xxv) 

relating to the sustainability of the 

proposed project after the end of the 

project period. 

Reasons: Adding these selection 

factors would help ensure that the 

Department’s discretionary grant 

programs effectively promote the 

development and implementation of 

effective and sustainable practices and 

support adoption and implementation 

of necessary reforms. By promoting the 

development of a multi-year plan for 

incorporation into the applicant’s 

ongoing work, the proposed factors 

would better encourage applicants to 

develop sustainability plans than do the 

related selection factors in current 

§ 75.210(c). The proposed factors also 

would allow the Secretary to consider a 

proposed project’s potential for 

sustainability over time, including the 

extent to which the project has the 

support of various stakeholders and 

adequate resources to continue the 

project after the grant period ends. 

Proposed Regulations: The Secretary 

proposes to revise § 75.210(c) to add a 

new selection factor (xxvi) regarding the 

extent to which the proposed project 

will increase efficiency in the use of 

time, staff, money, or other resources in 

order to improve results and increase 

productivity. 

Reasons: Current § 75.210(c) does not 

include a factor that promotes increased 

productivity. Considering the budget 

challenges that State and local 

educational agencies, institutions of 

higher education, non-profit 

organizations, and other entities 

working in education face during 

economic downturns, and given the 

potential for new knowledge and 

capabilities to improve efficiency, the 

Department believes that it is 

appropriate to consider the potential for 

increasing productivity, i.e., the extent 

to which a proposed project includes a 

strategy to make more efficient use of 

time, money, and staff, when assessing 

an application. 

Proposed Regulations: The Secretary 

proposes to revise § 75.210(c)(xvi) to 

read ‘‘The extent to which the proposed 

project will integrate with or build on 

similar or related efforts to improve 

relevant outcomes, using existing 

funding streams from other programs or 

policies supported by community, State, 

and Federal resources.’’ 

In addition, the Secretary proposes to 

add a new selection factor (xxvii) 

regarding the extent to which the 

proposed project will integrate with or 

build on similar or related efforts in 

order to improve relevant outcomes, 

using nonpublic funds or resources. 

Reasons: Given the budget challenges 

facing State and local educational 

agencies, institutions of higher 

education, and other entities working in 

education, there is a need for strategies 

and practices to improve relevant 

outcomes while controlling costs. 

Moreover, ‘‘silos’’ within and between 

agencies at the local, State, and Federal 

levels often impede program integration 

and result in less efficient and effective 

efforts. The purpose of revising this 

selection factor and adding a factor 

focused on nonpublic investments is to 

improve levels of program integration, 

to facilitate shared agendas for actions 

focused on common outcomes, and to 

leverage public and private sector 

investments in education. In addition, 

the Department believes that leveraging 

existing programs and policies that are 

supported by other funds, including 

other Federal, State, local, or private 

funds, increases the likelihood that 

selected projects will be sustained 

beyond the grant period. 

Proposed Regulations: The Secretary 

proposes to add two new selection 

factors (xxviii and xxix) regarding the 

extent to which the proposed project is 

supported by evidence of promise or 

strong theory. Later in this notice, we 

propose adding definitions to Part 77, 

including evidence of promise, strong 

theory, and other terms to ensure 

consistent understanding of the 

selection factors we propose in this 

notice. 

Reasons: The Department recognizes 

that at the various stages of a proposed 

project’s development, different types of 

evidence are available to assess the 

effectiveness of a project. The proposed 

selection factors would permit the 

Secretary to use strength of evidence as 

a selection factor in determining the 

projects the Department will fund while 

maintaining the flexibility to consider a 

wider variety of studies or data an 

applicant might present that is 

appropriate to the goals of the project. 

The flexibility provided by the proposed 

selection factor would be particularly 

beneficial for innovative areas where 

strong or moderate evidence of 

effectiveness is not yet available because 

it would allow the Secretary to consider 

strength of evidence appropriate to a 

project’s stage of development. 

Current Regulations: Section 

75.210(h) establishes the selection 

criterion ‘‘Quality of the Project 

Evaluation.’’ The Secretary may 

consider one or more of the seven 

factors listed under this criterion in 

determining the quality of the project 

evaluation design, such as the extent to 

which the project proposes feasible and 

appropriate evaluation methods, uses 

objective performance measures, and 

permits periodic assessment. 

Proposed Regulations: The Secretary 

proposes to revise § 75.210(h) to add 

five new selection factors. Two of the 

new selection factors address the extent 

to which the methods of evaluation will, 

if well-implemented, produce evidence 

about the project’s effectiveness that 

would meet the What Works 

Clearinghouse Evidence Standards.1

The other three proposed selection 

factors address the extent to which the 

methods of evaluation will produce 

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74398 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

2See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?

sid=19. 

evidence of promise about the grantsupported intervention, valid and 

reliable performance data on relevant 

outcomes of the project, and the extent 

to which the evaluation plan articulates 

key components as well as measureable 

thresholds for acceptable 

implementation of the project. 

Reasons: Although current § 75.210(h) 

includes selection factors regarding 

proposed evaluation methods, it does 

not include a selection factor that 

promotes use of the strongest possible 

study designs for estimating a program’s 

effect or a selection factor that assesses 

the extent to which the proposed 

evaluation will articulate information 

that can be used to assess whether the 

project was implemented with fidelity. 

Linking two of the proposed new 

selection factors to the What Works 

Clearinghouse Evidence Standards 2

reflects the predominant view among 

research experts that the randomized 

controlled trial (also referred to as an 

experimental design study) is the most 

rigorous and defensible method for 

producing unbiased evidence of project 

effectiveness. Random assignment of 

entities (students, teachers, schools, or 

other units of analysis) to a treatment or 

control group is the most effective way 

to eliminate plausible competing 

explanations for observed differences 

between treated and non-treated 

individuals or groups (i.e., the estimated 

treatment effect). Adding these selection 

factors will allow the Secretary to 

consider the extent to which applicants 

propose evaluations that will contribute 

to a strong body of evidence on the 

effectiveness of the proposed project. 

Additionally, the other three 

proposed selection factors allow the 

Secretary to consider evaluation 

methods that will produce data on a 

project’s evidence of promise, 

performance on relevant outcomes, and 

fidelity of implementation. Each of 

these factors would improve the 

Department’s ability to assess evaluation 

plans for projects at various stages of 

their development. 

Current Regulations: None. 

Proposed Regulations: The Secretary 

proposes to add selection criterion 

§ 75.210(i), ‘‘Strategy to Scale.’’ ‘‘Scale’’ 

refers to expanding the use or 

implementation of a proposed practice, 

strategy, or program to provide services 

at a State, regional, or national level 

while maintaining the demonstrated 

effectiveness of the approach. Under the 

proposed new criterion, the Secretary 

would consider the applicant’s strategy 

to scale the proposed project. In 

determining the applicant’s strategy to 

scale the proposed project, the Secretary 

would consider one or more factors, 

including the extent to which the 

applicant’s strategy to scale addresses a 

particular barrier or barriers that 

prevented the applicant, in the past, 

from reaching the level of scale that is 

proposed in the application; the 

applicant’s capacity (e.g., in terms of 

qualified personnel, financial resources, 

or management capacity) to bring the 

proposed project to scale; and the extent 

to which the applicant demonstrates 

there is unmet demand for the proposed 

project that will enable the applicant to 

reach the level of scale that is projected 

in the application. In addition, the 

Secretary could consider the feasibility 

of replicating the project and the 

mechanisms for broadly disseminating 

information on the project so as to 

support further development or 

replication. 

Reasons: It is important that 

successful best practices be shared and 

implemented more broadly. The 

addition of this selection criterion 

would allow the Secretary to consider 

the proposed scaling methodology and 

the feasibility of successfully replicating 

the proposed project in a variety of 

settings and with other populations. The 

proposed selection criterion would 

allow the Department to consider 

whether applicants have the potential to 

serve more groups in a variety of 

settings, which would be important in 

estimating the likelihood of a proposed 

project’s success at scale and in 

considering applications for activities 

that include broad sharing of best 

practices. Additionally, Department 

programs could use the proposed 

criterion, in conjunction with the 

proposed priority regarding evidence of 

effectiveness, to encourage the field to 

focus its attention and resources on 

projects that are effective. 

IV. Evidence of Effectiveness 

Background 

To support effective projects and 

provide incentives to the field for 

building an evidence base on the 

effectiveness of interventions, the 

Secretary proposes a priority for projects 

that can cite and build upon an existing 

base of strong or moderate evidence of 

effectiveness. This priority would be a 

critical part of the Department’s efforts 

to fund and increase the use of programs 

with evidence of effectiveness. 

Section 75.226 Consideration of 

Applications Supported by Strong or 

Moderate Evidence of Effectiveness 

Current Regulations: None. 

Proposed Regulations: The Secretary 

proposes to establish procedures for 

giving special consideration to 

applications supported by strong or 

moderate evidence of effectiveness. 

Proposed § 75.226 would establish that 

if the Secretary determines to give 

special consideration to applications 

supported by strong or moderate 

evidence of effectiveness for a particular 

grant competition, the Secretary could 

either establish a separate competition 

or give a competitive preference to 

applications supported by strong or 

moderate evidence of effectiveness 

under the procedures in 34 CFR 

75.105(c)(2). 

Reasons: By expanding the number of 

Department programs awarding grants 

to those projects supported by strong or 

moderate evidence of effectiveness, the 

Department could better ensure that 

discretionary grant funds are used to 

support effective interventions and 

activities. 

V. Program Budgets 

Background 

So that the Department can learn as 

much as possible from successful 

discretionary grants and its programs as 

a whole, we propose amendments 

regarding budget periods. We would: 

• Establish that a project may receive 

an extension of the funding period for 

the purpose of collecting, analyzing, and 

reporting performance data; 

• Clarify that a multi-year data 

collection may be funded through 

separate budget periods; and 

• Clarify that any information 

relevant to the grantee’s performance 

during the project period should be 

considered when determining whether a 

grantee receives a continuation award. 

Proposed Regulatory Changes 

34 CFR Part 75 

Section 75.250 Maximum Funding 

Period 

Current Regulations: Current § 75.250 

is titled ‘‘Project period can be up to 60 

months.’’ This section provides that the 

Secretary may approve a project period 

of up to 60 months, but it does not 

specifically authorize funding grants for 

periods longer than 60 months. Other 

regulations in part 75 prohibit the use 

of Federal funds for projects extending 

past 60 months. See current § 75.261, 

which addresses the circumstances 

under which a grantee may request a nocost extension of a project period. 

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Proposed Regulations: We propose to 

amend § 75.250 to provide that the 

Secretary may approve a data collection 

period of up to 72 months—if not 

inconsistent with any statutory limits on 

the grant award period—after the end of 

the project period and provide funding 

during this period for the sole purpose 

of collecting, analyzing, and reporting 

data regarding project performance. 

During a data collection period, a 

grantee could use the funds only for 

data collection, analysis, and reporting 

purposes. Section 75.250(b)(2) would 

give the Secretary discretion to notify 

applicants in the notice inviting 

applications for a competition or later, 

after grantees have started their projects 

of the intent to fund data collection 

periods. 

Given these proposed changes, the 

Secretary also proposes to change the 

title of this section to ‘‘Maximum 

funding period.’’ 

Reasons: It is the Department’s 

experience that the effectiveness of a 

project cannot always be determined on 

the date that the substantive work of the 

project is complete. For example, a fouryear project designed to increase the 

ability of certain high school students to 

successfully complete college may 

require data collection for up to six 

years after the date the substantive work 

of the project ends. With the discretion 

to approve a data collection period after 

the end of a project period and offer 

continued funding for data collection, 

the Department could ensure that 

performance data are collected and are 

used to evaluate both the project and 

program performance. The Secretary 

would expect to fund any data 

collection period of a grant at a much 

lower level than the original substantive 

work of the grant. 

Section 75.251 The Budget Period 

Current Regulations: Current § 75.251 

describes how the Secretary may fund 

multi-year projects through separate 

budget periods, generally of 12 months 

each. 

Proposed Regulations: The Secretary 

proposes to add a new paragraph (c) to 

this section to clarify that multi-year 

data collection periods may be funded 

through budget periods in the same 

manner as project periods are funded. 

Reasons: We are proposing to revise 

§ 75.251 to correspond to the proposed 

revisions to § 75.250. 

Section 75.253 Continuation of a 

Multi-Year Project After the First Budget 

Period 

Current Regulations: Under current 

§ 75.253(a), a grantee may only receive 

a continuation award if the grantee has 

met certain requirements, including the 

requirement that the grantee make 

substantial progress toward the 

objectives of the grant. If a grantee does 

not make substantial progress, it must 

obtain permission from the Department 

to make changes to the project that 

would help the grantee make substantial 

progress during the remainder of the 

project period. 

Proposed Regulations: The Secretary 

proposes to amend § 75.253 by adding a 

new paragraph (b) to clarify that in 

deciding whether to make a 

continuation grant, the Secretary could 

consider any information relevant to the 

grantee’s performance during the project 

period. This could include information 

relevant to the authorizing statute, a 

criterion, a priority, or a performance 

measure, or any financial or other 

requirement that applied to the 

selection of applications for new 

awards. While this proposed standard 

for granting continuation awards is 

implicit under the current regulations, 

the Secretary believes that this standard 

should be explicit so that grantees have 

a clearer understanding of how the 

Department decides to make a 

continuation award. 

In addition, we propose to amend 

paragraph (a)(2) so that in making 

continuation awards, the Secretary 

could consider not only the extent to 

which a grantee has made substantial 

progress in achieving the goals and 

objectives of the project, but also 

whether a grantee met the performance 

targets in the approved application, if 

the Secretary established performance 

measurement requirements for the grant 

in the application notice. If a grantee 

fails to meet these targets, proposed 

paragraph (a)(2) would require the 

grantee to obtain the Secretary’s 

approval for changes to the project that 

enable the grantee to achieve the 

project’s goals, objectives, and 

performance targets, if any, without 

changing the project scope or objectives. 

The Secretary would retain the 

requirement in the current regulation 

that any such changes may not increase 

the amount of funds obligated to the 

project by the Department. 

Reasons: Current § 75.253 does not 

describe the standards used to 

determine whether a grantee has made 

substantial progress on its grant. 

Therefore, we propose these 

amendments to clarify the standards 

that the Department considers when 

determining whether a grant will 

receive a continuation award. The 

proposed amendments would establish 

that the Secretary may also consider 

whether a grantee has met the 

performance targets in its approved 

application when making continuation 

awards. 

Section 75.590 Evaluation by the 

Grantee 

Current Regulation: Current § 75.590 

requires a grantee to submit 

performance reports to the Department 

that evaluate at least annually the 

grantee’s progress in achieving the 

objectives in its approved application, 

the effectiveness of the project in 

meeting the purposes of the program, 

and the effect of the project on 

participants being served by the project. 

This provision does not currently 

provide any standards for evaluating the 

progress in achieving performance 

targets. 

Proposed Regulation: The Secretary 

proposes to revise § 75.590 to add a new 

paragraph (a) to provide that if an 

application notice for a competition 

requires applicants to describe how they 

would evaluate their projects, any 

evaluation must meet the standards set 

in the approved application for the 

project. The performance measurement 

data collected by the grantee and used 

in the evaluation must meet the 

performance measurement requirements 

in the approved application. 

We also propose to designate the 

current regulatory text in § 75.590 as 

new paragraph (b) and revise that text 

to conform to the other changes we are 

proposing regarding performance 

measurement. Specifically, we propose 

that if the application notice for a 

competition did not require an 

applicant to submit an evaluation plan, 

the grantee must provide information in 

its performance report to the 

Department demonstrating (1) The 

progress made by the grantee in the 

most recent budget period; (2) the 

effectiveness of the project; and (3) the 

effect of the project on the participants 

served by the project. If the application 

notice required applicants to propose 

how they would meet performance 

requirements, the performance report 

would also need to address the extent to 

which the grantee met the project’s 

performance targets and other 

performance measurement requirements 

for the budget period addressed by the 

performance report. 

Reasons: The proposed revisions to 

§ 75.590 strengthen the Department’s 

authority to monitor the quality of 

grantees’ project evaluations. 

Additionally, these revisions 

complement other proposed regulations 

in this notice regarding performance 

measurement requirements. 

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74400 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

VI. Definitions 

Background 

These proposed regulations include 

references to terms that are not currently 

defined in EDGAR. To ensure a common 

understanding of these terms, we 

propose establishing the following 

definitions. 

Proposed Regulatory Changes 

34 CFR Part 77 

Section 77.1 Definitions That Apply to 

All Department Programs 

Current Regulations: Section 77.1(c) 

establishes definitions that unless a 

statute or regulation provides otherwise, 

apply to parts 34 CFR 74 and 80. 

Proposed Regulations: The Secretary 

proposes to incorporate the definitions 

for the following terms into § 77.1(c): 

‘‘ambitious,’’ ‘‘baseline data,’’ ‘‘evidence 

of promise,’’ ‘‘large sample,’’ ‘‘logic 

model,’’ ‘‘moderate evidence of 

effectiveness,’’ ‘‘multi-site sample,’’ 

‘‘national level,’’ ‘‘performance 

measure,’’ ‘‘performance target,’’ 

‘‘randomized controlled trial,’’ ‘‘regional 

level,’’ ‘‘relevant outcome,’’ ‘‘quasiexperimental study,’’ ‘‘strong evidence 

of effectiveness,’’ and ‘‘strong theory.’’ 

Reasons: The Secretary proposes 

establishing these definitions to ensure 

consistent understanding of the 

selection factors and priority we 

propose in this notice. 

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 a 

significant regulatory action subject to 

review by OMB under section 3(f) of 

Executive Order 12866. 

We have also reviewed these 

regulations under Executive Order 

13563, which supplements and 

explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, Executive Order 

13563 requires that an agency— 

(1) Propose or adopt regulations only 

upon a reasoned determination that 

their benefits justify their costs 

(recognizing that some benefits and 

costs are difficult to quantify); 

(2) Tailor its regulations to impose the 

least burden on society, consistent with 

obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 

(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ The Office of 

Information and Regulatory Affairs of 

OMB has emphasized that these 

techniques may include ‘‘identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes.’’ 

We are issuing these regulations 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. 

Based on the analysis that follows, the 

Department believes that these 

regulations are 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 of this 

regulatory action. The potential costs 

associated with this regulatory action 

are those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering the Department’s 

programs and activities. 

Summary of Potential Costs and 

Benefits 

Under the proposed regulations, 

applicants would have to use 

performance measures, baseline data, 

and performance targets established by 

the Department or establish their own 

performance measures, and determine 

baseline data performance targets for 

each performance measure. Although 

these proposed regulations would 

explicitly require such determinations 

and data collections, these requirements 

are implicit under the current 

regulations and grantees are already 

required to report on the extent to 

which they are meeting performance 

targets under the performance report ED 

524B, which is approved under OMB 

control number 1894–0003. Therefore, 

we do not expect an increase in 

reporting burden on grantees under the 

proposed amendments. 

The benefits of the proposed 

regulations would be that the 

Department would have explicit 

authority to collect meaningful data that 

we could use to assess the success of 

individual projects and report to 

Congress and OMB about the success of 

Department programs in achieving their 

legislative objectives. The ability to 

determine the success of Department 

programs could help improve the 

effectiveness of Department programs, 

without imposing additional costs on 

grantees or other parties. 

The proposed regulations would also 

permit the Department to provide an 

exception for certain applicants from 

the full competitive contracting 

requirements in 34 CFR 74.43 and 

80.36(c) for a grant that requires an 

external evaluation. Additionally, the 

proposed regulations would remove the 

prohibition on subgrants and allow for 

subgrants to any entity that is identified 

in a grantee’s application and uses the 

subgrant directly to carry out activities 

described in the application. This action 

would reduce costs and increase 

benefits. 

The benefits are that the proposed 

rule would remove a barrier for these 

grantees to contracting with the same 

evaluator both in the grant application 

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stage and after receiving a grant award 

(and similarly, to selecting evaluation 

sites and implementation partners both 

pre-grant award and post-award), and 

thereby potentially enhance the quality 

of these projects. At the same time the 

proposed regulations would relieve 

grantees of the costs of administering 

competitions without reducing 

accountability or increasing the risk of 

improper use of or accounting for grant 

expenditures. 

Additionally, under the proposed 

regulations, the Department would have 

greater flexibility in conducting grant 

competitions to use selection criteria 

that (1) are closely aligned with program 

objectives and priorities, and (2) 

promote reform objectives related to 

project evaluation, sustainability, 

productivity, and capacity to scale. This 

change would benefit applicants as well 

as the Department because it allows the 

Secretary to establish selection criteria 

that are concise and closely aligned 

with the goals and objectives of a 

particular grant competition and are 

focused more closely and coherently on 

the intended outcomes of the 

competition. The regulations would 

generate these benefits without 

increasing the costs for applicants, 

grantees, or the Department that already 

exist for creating and reviewing grant 

applications. 

Elsewhere in this section under the 

heading Paperwork Reduction Act of 

1995, we identify and explain burdens 

specifically associated with information 

collection requirements. 

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 

‘‘§ ’’ and a numbered heading; for 

example, § 75.210 General selection 

criteria.) 

• 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? 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section of this preamble. 

Regulatory Flexibility Act Certification 

Paperwork Reduction Act of 1995 

The Secretary certifies that these 

proposed regulations would not have a 

significant economic impact on a 

substantial number of small entities 

because the proposed regulations would 

affect only slightly the overall burden 

on applicants and grantees, as explained 

in the Paperwork Reduction Act of 1995 

discussion in this SUPPLEMENTARY

INFORMATION. 

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. 

Section 75.110 contains an 

information collection requirement. 

Under the PRA the Department has 

submitted a copy of this section to OMB 

for its review. 

A Federal agency may not conduct or 

sponsor a collection of information 

unless OMB approves the collection 

under the PRA and the corresponding 

information collection instrument 

displays a currently valid OMB control 

number. Notwithstanding any other 

provision of law, no person is required 

to comply with, or is subject to penalty 

for failure to comply with, a collection 

of information if the collection 

instrument does not display a currently 

valid OMB control number. 

In the final regulations we will 

display the control number assigned by 

OMB to any information collection 

requirement proposed in this NPRM and 

adopted in the final regulations. 

Collection of Information: The 

proposed regulations would affect 

applicants and grantees of the 

Department’s discretionary grant 

programs, including State, local, and 

tribal governments and non-profit 

organizations, such as institutions of 

higher education. 

Applications: OMB has approved the 

Department’s Generic Application 

Package under OMB Control number 

1894–0006, which applies to those 

competitions that use the current 

EDGAR selection criteria in § 75.210 

and statutory criteria that have been 

developed under the EDGAR procedures 

in § 75.209. 

Regarding the burden imposed by the 

Generic Application Package, the 

Department proposes to add proposed 

§ 75.110 to the other sections already 

identified as creating burden related to 

that package. While § 75.110 is new, it 

would not impose any new data 

collection requirements for the Generic 

Application Package because 

performance measurement burden for 

that package has already been calculated 

under the selection criteria in § 75.210. 

The amendments proposed in this 

NPRM would not increase the existing 

paperwork burdens under the Generic 

Application Package. The Secretary also 

proposes to cover the burden associated 

with the EDGAR selection criteria from 

§ 75.209 and § 75.210 under § 75.200, 

which fully details the sources that 

program offices can use to establish 

selection criteria under EDGAR. 

Each fiscal year, the Department 

receives over XX,000 applications under 

competitions covered by the Generic 

Application Package. Applicants that 

apply to programs that use the EDGAR 

criteria would be affected by the 

proposed changes to the selection 

criteria that would require applications 

to address evaluation and performance 

measurement more specifically. 

The Department already has selection 

criteria that ask applicants to describe 

the evaluation plans for their projects; 

the burden associated with the proposed 

regulations is currently covered under 

§ 75.210(h). However, an applicant for a 

discretionary grant would only have to 

respond once to provide the following 

information regarding the project: The 

performance baselines; the performance 

measures; the performance targets; and 

the methodology for collecting 

performance data. Thus, we do not 

expect greater burden under these 

proposed regulations and the Generic 

Application Package because that 

burden is already covered under 

existing criteria. Instead, we expect that 

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74402 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

as a result of these proposed regulations, 

applicants would provide greater clarity 

on the methodologies they would use to 

collect and report data. 

Because these proposed regulations 

would expand the number of programs 

that could use proposed § 75.209 to 

create criteria based on statutory and 

regulatory requirements, there is a 

potential under the proposed 

regulations that more program offices 

would use the EDGAR process to 

establish criteria for their competitions. 

If more competitions use the Generic 

Application Package, the overall hours 

of burden under the Generic 

Application Package and OMB Control 

number 1894–0006 would grow. 

However, any ‘‘new’’ burden covered by 

the Generic Application Package would 

result from fewer programs using 

program-specific application packages, 

so the total burden covered by programspecific application packages would be 

reduced in an amount equivalent to the 

burden increase associated with the 

Generic Application Package. If the 

amendments to the sections regarding 

the selection criteria become final, we 

would work closely with OMB to 

monitor the extent to which burden 

currently covered by separate programspecific application packages would 

shift to the Generic Application Package 

and request appropriate changes in the 

total burden covered by the Generic 

Application Package. 

The current Generic Application 

Package was approved by OMB based 

on an estimate of 9,861 responses over 

three years and an estimate of 447,089 

total hours required to prepare 

applications. 

Performance reports: OMB has also 

approved the U.S. Department of 

Education Grant Performance Report 

(ED 524B) under OMB Control number 

1894–0003. 

Over three years, the Department 

receives ED 524B performance reports 

from approximately 5,900 discretionary 

grantees. A grantee would have to 

respond on an annual basis to prepare 

performance reports throughout the 

course of the project period, including 

any no-cost extensions of the grant or 

funded data collection extensions, and 

respond once to prepare a final 

performance and financial report. These 

burdens have already been accounted 

for under the ED 524B. 

The number of reports estimated 

annually under the ED 524B is 5,900 

and the estimated reporting burdenhours for that report is 132,200. We do 

not expect any change in burden under 

these proposed regulations. However, 

there is some potential that more 

programs might be able to use the ED 

524B performance report as a result of 

more programs using the EDGAR 

selection criteria. We will monitor that 

potential and work with OMB to 

determine if the Department needs to 

revisit the total burden covered by the 

ED 524B performance report. 

Intergovernmental Review 

These proposed regulations affect 

Direct Grant programs of the 

Department that are subject to Executive 

Order 12372 and the regulations in 34 

CFR part 79. One of the objectives of the 

Executive order is to foster an 

intergovernmental partnership and a 

strengthened federalism. The Executive 

order relies on processes developed by 

State and local governments for 

coordination and review of proposed 

Federal financial assistance. 

This document provides early 

notification of our specific plans and 

actions for these programs. 

Assessment of Educational Impact 

In accordance with section 411 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, the Secretary 

particularly requests comments on 

whether these proposed regulations 

would require transmission of 

information that any other agency or 

authority of the United States gathers or 

makes available. 

Accessible Format: Individuals with 

disabilities can obtain this document in 

an accessible format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the program contact person 

listed under FOR FURTHER INFORMATION

CONTACT. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: www.gpo.gov/fdsys. At this site you 

can view this document, as well as all 

other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 

have Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

List of Subjects 

34 CFR Part 75 

Accounting, Copyright, Education, 

Grant programs-education. 

34 CFR Part 77 

Education, Grant programs-education. 

Dated: December 6, 2012. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary proposes to 

amend parts 75 and 77 of title 34 of the 

Code of Federal Regulations as follows: 

PART 75—DIRECT GRANT 

PROGRAMS 

1. The authority citation for part 75 

continues to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474, 

unless otherwise noted. 

2. Add a new § 75.110 to read as 

follows: 

§ 75.110 Information regarding 

performance measurement. 

(a) The Secretary may establish in an 

application notice for a competition one 

or more performance measurement 

requirements, including requirements 

for performance measures, baseline 

data, or performance targets, and a 

requirement that applicants propose in 

their applications one or more of their 

own performance measures, baseline 

data, or performance targets. 

(b) If an application notice requires 

applicants to propose project-specific 

performance measures, baseline data, or 

performance targets, the application 

must include the following, as required 

by the application notice: 

(1) Performance measures. How each 

proposed performance measure would 

accurately measure the performance of 

the project and how the proposed 

performance measure would be 

consistent with the performance 

measures established for the program 

funding the competition. 

(2) Baseline data. (i) Why each 

proposed baseline is valid; or 

(ii) If the applicant has determined 

that there are no established baseline 

data for a particular performance 

measure, an explanation of why there is 

no established baseline and of how and 

when, during the project period, the 

applicant would establish a valid 

baseline for the performance measure. 

(3) Performance targets. Why each 

proposed performance target is 

ambitious yet achievable compared to 

the baseline for the performance 

measure and when, during the project 

period, the applicant would meet the 

performance target. 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74403 

(c) If the application notice 

establishes performance measurement 

requirements, the applicant must also 

describe in the application— 

(1)(i) The data collection and 

reporting methods the applicant would 

use and why those methods are likely to 

yield reliable, valid, and meaningful 

performance data; and 

(ii) If the Secretary requires applicants 

to collect data after the substantive work 

of a project is complete regarding the 

attainment of certain performance 

targets, the data collection and reporting 

methods the applicant would use during 

the post-performance period and why 

those methods are likely to yield 

reliable, valid, and meaningful 

performance data. 

(2) The applicant’s capacity to collect 

and report reliable, valid, and 

meaningful performance data, as 

evidenced by high-quality data 

collection, analysis, and reporting in 

other projects or research. 

(Authority: 20 U.S.C. 1221e–3 and 3474) 

3. Add a new undesignated center 

heading ‘‘Competition Exceptions’’ in 

subpart C immediately before the 

undesignated center heading ‘‘State 

Comment Procedures’’. 

4. Add a new § 75.135 to subpart C 

under the undesignated center heading 

‘‘Competition Exceptions’’ to read as 

follows: 

S75.135 Competition exception for 

proposed implementation sites, 

implementation partners, or evaluation 

service providers. 

(a) When entering into a contract with 

implementation sites or partners, an 

applicant is not required to comply with 

the competition requirements in 34 CFR 

74.43 or 80.36(c), as applicable, if— 

(1) The contract is with an entity that 

agrees to provide a site or sites where 

the applicant would conduct the project 

activities under the grant; 

(2) The implementation sites or 

partner entities that the applicant 

proposes to use are identified in the 

application for the grant; and 

(3) The implementation sites or 

partner entities are included in the 

application in order to meet a 

regulatory, statutory, or priority 

requirement related to the competition. 

(b) When entering into a contract for 

data collection, data analysis, or 

evaluation services, an applicant may 

select a provider using the informal, 

small-purchase procurement procedures 

in 34 CFR 80.36(d)(1), regardless of 

whether that applicant would otherwise 

be subject to that part or whether the 

evaluation contract would meet the 

standards for a small purchase order, 

if— 

(1) The contract is with the data 

collection, data analysis, or evaluation 

service provider that would conduct the 

project services; 

(2) The evaluation service provider 

that the applicant proposes to use is 

identified in the application for the 

grant; and 

(3) The evaluation service provider is 

included in the application in order to 

meet a statutory, regulatory, or priority 

requirement related to the competition. 

(c) If the grantee relied on the 

exceptions under paragraph (a) or (b) of 

this section, the grantee must certify 

that any employee, officer, or agent 

participating in the selection, award, or 

administration of a contract is free of 

any real or apparent conflict of interest. 

(d) A grantee must obtain the 

Secretary’s prior approval for any 

change to an implementation site, 

implementation partner, or evaluation 

service provider, if the grantee relied on 

the exceptions under paragraph (a) or 

(b) of this section to select the entity or 

evaluator. 

(e) The exceptions in paragraphs (a) 

and (b) of this section do not extend to 

the other procurement requirements in 

34 CFR part 74 and 34 CFR part 80 

regarding contracting by grantees and 

subgrantees. 

(Authority: 20 U.S.C. 1221e–3 and 3474) 

5. Revise § 75.209 to read as follows: 

§ 75.209 Selection criteria based on 

statutory or regulatory provisions. 

The Secretary may establish selection 

criteria and factors based on statutory or 

regulatory provisions that apply to the 

authorized program, which may 

include, but are not limited to criteria 

and factors that reflect— 

(a) Criteria contained in the program 

statute or regulations; 

(b) Criteria in § 75.210; 

(c) Allowable activities specified in 

the program statute or regulations; 

(d) Application content requirements 

specified in the program statute or 

regulations; 

(e) Program purposes, as described in 

the program statute or regulations; or 

(f) Other pre-award and post-award 

conditions specified in the program 

statute or regulations. 

(Authority: 20 U.S.C. 1221e–3 and 3474) 

6. Amend § 75.210 by: 

A. Revising the introductory text. 

B. Revising paragraph (c)(2)(xvi). 

C. Adding paragraphs (c)(2)(xxiv) 

through (xxix). 

D. Adding paragraphs (h)(2)(viii) 

through (xii). 

And 

E. Adding a new paragraph (i). 

The revisions and additions read as 

follows. 

§ 75.210 General selection criteria. 

In determining the selection criteria to 

evaluate applications submitted in a 

grant competition, the Secretary may 

select one or more of the following 

criteria and may select from among the 

list of optional factors under each 

criterion. The Secretary may define a 

selection criterion by selecting one or 

more specific factors within a criterion 

or assigning factors from one criterion to 

another criterion. 

* * * * * 

(c) * * * 

(2) * * * 

(xvi) The extent to which the 

proposed project will integrate with or 

build on similar or related efforts to 

improve relevant outcomes (as defined 

in 34 CFR 77.1(c)), using existing 

funding streams from other programs or 

policies supported by community, State, 

and Federal resources. 

* * * 

(xxiv) The extent to which the 

applicant demonstrates that it has the 

resources to operate the project beyond 

the length of the grant, including a 

multi-year financial and operating 

model and accompanying plan; the 

demonstrated commitment of any 

partners; evidence of broad support 

from stakeholders (e.g., State 

educational agencies, teachers’ unions) 

critical to the project’s long-term 

success; or more than one of these types 

of evidence. 

(xxv) The potential and planning for 

the incorporation of project purposes, 

activities, or benefits into the ongoing 

work of the applicant beyond the end of 

the grant. 

(xxvi) The extent to which the 

proposed project will increase efficiency 

in the use of time, staff, money, or other 

resources in order to improve results 

and increase productivity. 

(xxvii) The extent to which the 

proposed project will integrate with or 

build on similar or related efforts in 

order to improve relevant outcomes (as 

defined in 34 CFR 77.1(c)), using 

nonpublic funds or resources. 

(xxviii) The extent to which the 

proposed project is supported by 

evidence of promise (as defined in 34 

CFR 77.1(c)). 

(xxix) The extent to which the 

proposed project is supported by strong 

theory (as defined in 34 CFR 77.1(c)). 

* * * * * 

(h) * * * 

(2) * * * 

(viii) The extent to which the methods 

of evaluation will, if well-implemented, 

mstockstill on DSK4VPTVN1PROD with 

74404 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

3See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

4See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

produce evidence about the project’s 

effectiveness that would meet the What 

Works Clearinghouse Evidence 

Standards without reservations.3

(ix) The extent to which the methods 

of evaluation will, if well-implemented, 

produce evidence about the project’s 

effectiveness that would meet the What 

Works Clearinghouse Evidence 

Standards with reservations.4

(x) The extent to which the methods 

of evaluation will, if well-implemented, 

produce evidence of promise (as defined 

in 34 CFR 77.1(c)). 

(xi) The extent to which the methods 

of evaluation will provide valid and 

reliable performance data on relevant 

outcomes. 

(xii) The extent to which the 

evaluation plan clearly articulates the 

key components, mediators, and 

outcomes of the grant-supported 

intervention, as well as a measurable 

threshold for acceptable 

implementation. 

(i) Strategy to Scale 

(1) The Secretary considers the 

applicant’s strategy to scale the 

proposed project. 

(2) In determining the applicant’s 

capacity to scale the proposed project, 

the Secretary considers one or more of 

the following factors: 

(i) The applicant’s capacity (e.g., in 

terms of qualified personnel, financial 

resources, or management capacity) to 

bring the proposed project to scale on a 

national or regional level (as defined in 

34 CFR 77.1(c)) working directly, or 

through partners, during the grant 

period. 

(ii) The applicant’s capacity (e.g., in 

terms of qualified personnel, financial 

resources, or management capacity) to 

further develop and bring to scale the 

proposed process, product, strategy, or 

practice, or to work with others to 

ensure that the proposed process, 

product, strategy, or practice can be 

further developed and brought to scale, 

based on the findings of the proposed 

project. 

(iii) The feasibility of successful 

replication of the proposed project, if 

favorable results are obtained, in a 

variety of settings and with a variety of 

populations. 

(iv) The mechanisms the applicant 

will use to broadly disseminate 

information on its project so as to 

support further development or 

replication. 

(v) The extent to which the applicant 

demonstrates there is unmet demand for 

the process, product, strategy, or 

practice that will enable the applicant to 

reach the level of scale that is proposed 

in the application. 

(vi) The extent to which the applicant 

identifies a specific strategy or strategies 

that address a particular barrier or 

barriers that prevented the applicant, in 

the past, from reaching the level of scale 

that is proposed in the application. 

7. Add § 75.266 to subpart D to read 

as follows: 

§ 75.266 What procedures does the 

Secretary use if the Secretary decides to 

give special consideration to applications 

supported by strong or moderate evidence 

of effectiveness? 

(a) As used in this section, ‘‘strong 

evidence of effectiveness’’ is defined in 

34 CFR 77.1(c); 

(b) As used in this section, ‘‘moderate 

evidence of effectiveness’’ is defined in 

34 CFR 77.1(c); and 

(c) If the Secretary determines that 

special consideration of applications 

supported by strong or moderate 

evidence of effectiveness is appropriate, 

the Secretary may establish a separate 

competition under the procedures in 34 

CFR 75.105(c)(3), or provide 

competitive preference under the 

procedures in 34 CFR 75.105(c)(2), for 

applications supported by: 

(1) Evidence of effectiveness that 

meets the conditions set out in 

paragraph (a) of the definition of ‘‘strong 

evidence of effectiveness’’ in 34 CFR 

77.1; 

(2) Evidence of effectiveness that 

meets the conditions set out in either 

paragraph (a) or (b) of the definition of 

‘‘strong evidence of effectiveness’’ in 34 

CFR 77.1; or 

(3) Evidence of effectiveness that 

meets the conditions set out in the 

definition of ‘‘moderate evidence of 

effectiveness.’’ 

(Authority: 20 U.S.C. 1221e–3 and 3474) 

8. Revise § 75.250 to read as follows: 

§ 75.250 Maximum funding period. 

(a) The Secretary may approve a 

project period to fund the substantive 

work of a grant and a data collection 

period to fund data collection, analysis, 

and reporting related to a grant after the 

end of the project period. 

(b) The Secretary may approve a 

project period of up to 60 months to 

perform the substantive work of a grant. 

(1) The Secretary may approve a data 

collection period for a grant for a period 

of up to 72 months after the end of the 

project period and provide funding for 

the data collection period for the sole 

purpose of collecting, analyzing, and 

reporting performance measurement 

data regarding the project. 

(2) The Secretary may inform 

applicants of the Secretary’s intent to 

approve data collection periods in the 

application notice published for a 

competition or may decide to fund data 

collection periods after grantees have 

started their project periods. 

(Authority: 20 U.S.C. 1221e–3 and 3474) 

9. Amend § 75.251 by adding a new 

paragraph (c) to read as follows: 

§ 75.251 Budget Periods. 

* * * * * 

(c) If the Secretary funds a multi-year 

data collection period, the Secretary 

may fund the data collection period 

through separate budget periods and 

fund those budget periods in the same 

manner as those periods are funded 

during the project period. 

10. Amend § 75.253 by— 

A. Revising paragraph (a)(2). 

B. Adding a new paragraph (a)(5). 

C. Re-designating paragraphs (b) 

through (e) as paragraphs (c) through (f). 

D. Adding a new paragraph (b). 

And 

E. Revising newly re-designated 

paragraph (f). 

The revisions and additions read as 

follows: 

§ 75.253 Continuation of a multi-year 

project after the first budget period. 

(a) * * * 

(2) The grantee has either— 

(i) Made substantial progress in 

achieving— 

(A) The goals and objectives of the 

project; and 

(B) If the Secretary established 

performance measurement requirements 

for the grant in the application notice, 

the performance targets in the grantee’s 

approved application; or 

(ii) Obtained the Secretary’s approval 

for changes to the project that— 

(A) Do not increase the amount of 

funds obligated to the project by the 

Secretary; and 

(B) Enable the grantee to achieve the 

goals and objectives of the project and 

meet the performance targets of the 

project, if any, without changing the 

scope or objectives of the project. 

* * * 

(5) The grantee has maintained 

financial and administrative 

management systems that meet the 

requirements in 34 CFR 74.21 or 80.20, 

as appropriate. 

(b) In deciding whether a grantee has 

made substantial progress, the Secretary 

mstockstill on DSK4VPTVN1PROD with 

Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74405 

1See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

2See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?sid

=19. 

may consider any information relevant 

to the authorizing statute, a criterion, a 

priority, or a performance measure, or to 

a financial or other requirement that 

applies to the selection of applications 

for new grants. 

* * * * * 

(f) Unless prohibited by the program 

statute or regulations, a grantee that is 

in the final budget period of its project 

period may seek continued assistance 

for the project as required under the 

procedures for selecting new projects for 

grants. 

11. Revise § 75.590 to read as follows. 

§ 75.590 Evaluation by the grantee. 

(a) If the application notice for a 

competition required applicants to 

describe how they would evaluate their 

projects, each grantee under that 

competition must demonstrate to the 

Department that— 

(1) The evaluation meets the 

standards of the evaluation in the 

approved application for the project; 

and 

(2) The performance measurement 

data collected by the grantee and used 

in the evaluation meet the performance 

measurement requirements of the 

approved application. 

(b) If the application notice for a 

competition did not require applicants 

to describe how they would evaluate 

their projects, each grantee must 

provide information in its performance 

report demonstrating— 

(1) The progress made by the grantee 

in the most recent budget period, 

including progress based on the 

performance measurement requirements 

for the grant, if any; 

(2) The effectiveness of the grant, 

including fulfilling the performance 

measurement requirements of the 

approved application, if any; and 

(3) The effect of the project on the 

participants served by the project, if 

any. 

(Authority: 20 U.S.C. 1221e–3 and 3474) 

12. Amend § 75.708 by: 

A. Revising paragraph (a). 

B. Re-designating paragraph (b) as 

paragraph (e); and 

C. Adding new paragraphs (b), (c) and 

(d). 

The revision and additions read as 

follows. 

§ 75.708 Subgrants. 

(a) A grantee may not make a subgrant 

under a program covered by this part 

unless authorized by statute or by 

paragraph (b) of this section. 

(b) The Secretary may, through an 

announcement in the Federal Register, 

authorize subgrants when necessary to 

meet the purposes of a program. In this 

announcement, the Secretary will— 

(1) Designate the types of entities, e.g., 

State educational agencies, local 

educational agencies, institutions of 

higher education, and non-profit 

organizations, to which subgrants can be 

awarded; and 

(2) Indicate whether subgrants can be 

made to entities identified in an 

approved application or, without regard 

to whether the entity is identified in an 

approved application, have to be 

selected through a competitive process 

set out in subgranting procedures 

established by the grantee. 

(c) If authorized under paragraph (b) 

of this section, a subgrant is allowed if 

it will be used by that entity to directly 

carry out project activities described in 

that application. 

(d) The grantee, in awarding subgrants 

under paragraph (b) of this section, 

must— 

(1) Ensure that subgrants are awarded 

on the basis of an approved budget that 

is consistent with the grantee’s 

approved application and all applicable 

Federal statutory, regulatory, and other 

requirements; 

(2) Ensure that every subgrant 

includes any conditions required by 

Federal statute and executive orders and 

their implementing regulations; and 

(3) Ensure that subgrantees are aware 

of requirements imposed upon them by 

Federal statute and regulation, 

including the Federal antidiscrimination laws enforced by the 

Department; and 

* * * * * 

PART 77—DEFINITIONS THAT APPLY 

TO DEPARTMENT REGULATIONS 

13. The authority citation for part 77 

continues to read as follows: 

Authority: 20 U.S.C. 1221e–3 and 3474, 

unless otherwise noted. 

14. Amend § 77.1(c) by adding the 

following definitions in alphabetical 

order: 

§ 77.1 Definitions that apply to all 

Department programs. 

* * * * * 

(c) * * * 

Ambitious means promoting 

continued, meaningful improvement for 

program participants or for other 

individuals or entities affected by the 

grant, or representing a significant 

advancement in the field of education 

research, practices, or methodologies. 

When used to describe a performance 

target, whether a performance target is 

ambitious depends upon the context of 

the relevant performance measure and 

the baseline for that measure. 

* * * * * 

Baseline means the starting point 

from which performance is measured 

and targets are set. 

* * * * * 

Evidence of promise means there is 

empirical evidence to support the 

theoretical linkage(s) between at least 

one critical component and at least one 

relevant outcome presented in the logic 

model for the proposed process, 

product, strategy, or practice. 

Specifically, evidence of promise means 

the conditions in paragraphs (a) and (b) 

are met: 

(a) There is at least one study that is 

a— 

(1) Correlational study with statistical 

controls for selection bias; 

(2) Quasi-experimental study that 

meets the What Works Clearinghouse 

Evidence Standards with reservations; 1

or 

(3) Randomized controlled trial that 

meets the What Works Clearinghouse 

Evidence Standards with or without 

reservations.2

(b) The study referenced in paragraph 

(a) found a statistically significant or 

substantively important (defined as a 

difference of 0.25 standard deviations or 

larger), favorable association between at 

least one critical component and one 

relevant outcome presented in the logic 

model for the proposed process, 

product, strategy, or practice. 

* * * * * 

Large sample means an analytic 

sample of 350 or more students (or other 

single analysis units) who were 

randomly assigned to a treatment or 

control group or 50 or more groups 

(such as classrooms or schools) that 

contain 10 or more students (or other 

single analysis units) and that were 

randomly assigned to a treatment or 

control group. 

* * * * * 

Logic model (also referred to as theory 

of action) means a well-specified 

conceptual framework that identifies 

key components of the proposed 

process, product, strategy, or practice 

(i.e., the active ‘‘ingredients’’ that are 

hypothesized to be critical to achieving 

the relevant outcomes) and describes 

the relationships among the key 

mstockstill on DSK4VPTVN1PROD with 

74406 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

3See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

4See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

5See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

6See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.

aspx?sid=19. 

7See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?

sid=19. 

8See What Works Clearinghouse Procedures and 

Standards Handbook (Version 2.1, September 2011), 

which can currently be found at the following link: 

http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?

sid=19. 

components and outcomes, theoretically 

and operationally. 

* * * * * 

Moderate evidence of effectiveness 

means one of the following conditions 

is met: 

(a) There is at least one study of the 

effectiveness of the process, product, 

strategy, or practice being proposed that 

meets the What Works Clearinghouse 

Evidence Standards without 

reservations,3 found a statistically 

significant favorable impact on a 

relevant outcome (with no statistically 

significant unfavorable impacts on that 

outcome for relevant populations in the 

study or in other studies of the 

intervention reviewed by and reported 

on by the What Works Clearinghouse), 

and includes a sample that overlaps 

with the populations or settings 

proposed to receive the process, 

product, strategy, or practice. 

(b) There is at least one study of the 

effectiveness of the process, product, 

strategy, or practice being proposed that 

meets the What Works Clearinghouse 

Evidence Standards with reservations,4

found a statistically significant favorable 

impact on a relevant outcome (with no 

statistically significant unfavorable 

impacts on that outcome for relevant 

populations in the study or in other 

studies of the intervention reviewed by 

and reported on by the What Works 

Clearinghouse), includes a sample that 

overlaps with the populations or 

settings proposed to receive the process, 

product, strategy, or practice, and 

includes a large sample and a multi-site 

sample (Note: multiple studies can 

cumulatively meet the large and multisite sample requirements as long as each 

study meets the other requirements in 

this paragraph). 

* * * * * 

Multi-site sample means more than 

one site, where site can be defined as an 

LEA, locality, or State. 

* * * * * 

National level describes the level of 

scope or effectiveness of a process, 

product, strategy, or practice that is able 

to be effective in a wide variety of 

communities, including rural and urban 

areas, as well as with different groups 

(e.g., economically disadvantaged, racial 

and ethnic groups, migrant populations, 

individuals with disabilities, English 

learners, and individuals of each 

gender). 

* * * * * 

Performance measure means any 

quantitative indicator, statistic, or 

metric used to gauge program or project 

performance. 

* * * * * 

Performance target means a level of 

performance that an applicant would 

seek to meet during the course of a 

project or as a result of a project. 

* * * * * 

Quasi-experimental design study 

means a study using a design that 

attempts to approximate an 

experimental design by identifying a 

comparison group that is similar to the 

treatment group in important respects. 

These studies, depending on design and 

implementation, can meet What Works 

Clearinghouse Evidence Standards with 

reservations 5 (they cannot meet What 

Works Clearinghouse Evidence 

Standards without reservations). 

* * * * * 

Randomized controlled trial means a 

study that employs random assignment 

of, for example, students, teachers, 

classrooms, schools, or districts to 

receive the intervention being evaluated 

(the treatment group) or not to receive 

the intervention (the control group). The 

estimated effectiveness of the 

intervention is the difference between 

the average outcome for the treatment 

group and for the control group. These 

studies, depending on design and 

implementation, can meet What Works 

Clearinghouse Evidence Standards 

without reservations.6

* * * * * 

Regional level describes the level of 

scope or effectiveness of a process, 

product, strategy, or practice that is able 

to serve a variety of communities within 

a State or multiple States, including 

rural and urban areas, as well as with 

different groups (e.g., economically 

disadvantaged, racial and ethnic groups, 

migrant populations, individuals with 

disabilities, English learners, and 

individuals of each gender). For an LEAbased project, to be considered a 

regional-level project, a process, 

product, strategy, or practice must serve 

students in more than one LEA, unless 

the process, product, strategy, or 

practice is implemented in a State in 

which the State educational agency is 

the sole educational agency for all 

schools. 

* * * * * 

Relevant outcome means the student 

outcome(s) (or the ultimate outcome if 

not related to students) the proposed 

process, product, strategy, or practice is 

designed to improve; consistent with 

the specific goals of a program. 

* * * * * 

Strong evidence of effectiveness 

means one of the following conditions 

is met: 

(a) There is at least one study of the 

effectiveness of the process, product, 

strategy, or practice being proposed that 

meets the What Works Clearinghouse 

Evidence Standards without 

reservations,7 found a statistically 

significant favorable impact on a 

relevant outcome (with no statistically 

significant unfavorable impacts on that 

outcome for relevant populations in the 

study or in other studies of the 

intervention reviewed by and reported 

on by the What Works Clearinghouse), 

includes a sample that overlaps with the 

populations and settings proposed to 

receive the process, product, strategy, or 

practice, and includes a large sample 

and a multi-site sample (Note: multiple 

studies can cumulatively meet the large 

and multi-site sample requirements as 

long as each study meets the other 

requirements in this paragraph). 

(b) There are at least two studies of 

the effectiveness of the process, product, 

strategy, or practice being proposed, 

each of which: Meets the What Works 

Clearinghouse Evidence Standards with 

reservations,8 found a statistically 

significant favorable impact on a 

relevant outcome (with no statistically 

significant unfavorable impacts on that 

outcome for relevant populations in the 

studies or in other studies of the 

intervention reviewed by and reported 

on by the What Works Clearinghouse), 

includes a sample that overlaps with the 

populations and settings proposed to 

receive the process, product, strategy, or 

practice, and includes a large sample 

and a multi-site sample. 

* * * * * 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74407 

Strong theory means a rationale for 

the proposed process, product, strategy, 

or practice that includes a logic model. 

[FR Doc. 2012–29897 Filed 12–13–12; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF EDUCATION 

34 CFR Subtitle A 

RIN 1855–AA09 

[Docket No. ED 2012–OII–0027] 

Proposed Priorities, Requirements, 

Definitions, and Selection Criteria— 

Investing in Innovation Fund 

Catalog of Federal Domestic Assistance 

(CFDA) Numbers: 84.411A, 84.411B, and 

84.411C 

AGENCY: Office of Innovation and 

Improvement, Department of Education. 

ACTION: Proposed priorities, 

requirements, definitions, and selection 

criteria. 

SUMMARY: The Assistant Deputy 

Secretary for Innovation and 

Improvement proposes priorities, 

requirements, definitions, and selection 

criteria under the Investing in 

Innovation Fund (i3). The Assistant 

Deputy Secretary may use these 

priorities, requirements, definitions, and 

selection criteria for competitions in 

fiscal year (FY) 2013 and later years. 

The U.S. Department of Education 

(Department) has conducted three 

competitions under the i3 program and 

awarded 92 i3 grants since the program 

was established under the American 

Recovery and Reinvestment Act of 2009 

(ARRA). These proposed priorities, 

requirements, definitions, and selection 

criteria maintain the overall purpose 

and structure of the i3 program, which 

is discussed later in this document, and 

incorporate changes based on specific 

lessons learned from the first three 

competitions. 

DATES: We must receive your comments 

on or before January 14, 2013. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by email. To ensure 

that we do not receive duplicate copies, 

please submit your comments only 

once. In addition, please include the 

Docket ID at the top of your comments. 

• Federal eRulemaking Portal: Go to 

www.regulations.gov to submit your 

comments electronically. Information 

on using Regulations.gov, including 

instructions for accessing agency 

documents, submitting comments, and 

viewing the docket, is available on the 

site under ‘‘How to Use This Site.’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery: If you mail or deliver 

your comments about these proposed 

regulations, address them to Carol 

Lyons, U.S. Department of Education, 

400 Maryland Avenue SW., room 

4W203, LBJ, Washington, DC 20202– 

5930. 

Privacy Note: The Department’s policy is 

to make all comments received from 

members of the public available for public 

viewing in their entirety on the Federal 

eRulemaking Portal at www.regulations.gov. 

Therefore, commenters should be careful to 

include in their comments only information 

that they wish to make publicly available. 

FOR FURTHER INFORMATION CONTACT: 

Carol Lyons. Telephone: (202) 453– 

7122. Or by email: i3@ed.gov. If you use 

a telecommunications device for the 

deaf (TDD) or 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 this notice. 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 specific 

proposed priority, requirement, 

definition, or selection criterion that 

each comment addresses. We make 

additional, specific requests for 

comment in the sections setting out the 

proposed priorities, requirements, 

definitions, and selection criteria 

elsewhere in this notice. 

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, 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 the 

program. 

During and after the comment period, 

you may inspect all public comments 

about this notice by accessing 

Regulations.gov. You may also inspect 

the comments in person in room 

4W335, LBJ, 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. 

Please contact the person listed under 

FOR FURTHER INFORMATION CONTACT. 

Assistance to Individuals with 

Disabilities in Reviewing the 

Rulemaking Record: On request we will 

provide an appropriate accommodation 

or auxiliary aid to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for this notice. If you want to 

schedule an appointment for this type of 

accommodation or auxiliary aid, please 

contact the person listed under FOR

FURTHER INFORMATION CONTACT. 

Purpose of Program: The i3 program 

addresses two related challenges. First, 

there are too few practices in education 

supported by rigorous evidence of 

effectiveness, despite national attention 

paid to finding practices that are 

effective at improving education 

outcomes in the decade since the 

establishment of the Department’s 

Institute of Education Sciences (IES). 

Second, there are limited incentives to 

expand effective practices substantially 

and to use those practices to serve more 

students across schools, districts, and 

States. Student achievement suffers as a 

result. 

The central innovation of the i3 

program, and how it addresses these 

two challenges, is its multi-tier structure 

that links the amount of funding that an 

applicant may receive to the quality of 

the evidence supporting the efficacy of 

the proposed project. Applicants 

proposing practices supported by 

limited evidence can receive small 

grants that support the development and 

initial evaluation of promising practices 

and help to identify new solutions to 

pressing challenges; applicants 

proposing practices supported by 

evidence from rigorous evaluations, 

such as large randomized controlled 

trials, can receive sizable grants to 

support expansion across the Nation. 

This structure provides incentives for 

applicants to build evidence of 

effectiveness of their proposed projects 

and to address the barriers to serving 

more students across schools, districts, 

and States so that applicants can 

compete for more sizeable grants. 

As importantly, all i3 projects are 

required to generate additional evidence 

of effectiveness. All i3 grantees must use 

part of their budgets to conduct 

independent evaluations (as defined in 

this notice) of their projects. This 

ensures that projects funded under the 

i3 program contribute significantly to 

improving the information available to 

practitioners and policymakers about 

which practices work, for which types 

of students, and in which contexts. 

Program Authority: American Recovery 

and Reinvestment Act of 2009 (ARRA), 

Division A, Section 14007, Pub. L. 111–5. 

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