[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Proposed Rules]
[Pages 74392-74407]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29897]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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

[[Page 74392]]



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 ``Sec.  '' and a numbered heading; for example, 
Sec.  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

[[Page 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

[[Page 74394]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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). High-quality 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.
Sec.  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 Sec.  75.708(a) to allow subgrants when 
authorized by statute or as provided for by a new Sec.  75.708(b). 
Under this proposed new Sec.  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 Sec.  75.708(c) to provide that subgrants, if 
authorized under Sec.  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 Sec.  75.708(d), which would establish 
requirements grantees would have to follow in awarding subgrants 
authorized under Sec.  75.708(b). We would re-designate the current 
Sec.  75.708(b) as Sec.  75.708(e).
    Reasons: The revision of Sec.  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 project-related 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 Sec.  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 anti-discrimination 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 
Sec.  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 Sec.  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 Sec.  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 Sec.  75.210 (often referred to as the EDGAR 
selection criteria) to produce more focused selection criteria. Thus, 
Sec.  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 Sec.  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 Sec.  75.210.


Sec.  75.210  General Selection Criteria

    Current Regulations: Current Sec.  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 Sec.  75.210, add selection factors to the 
criteria in Sec.  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 Sec.  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'' (Sec.  75.210(a)) or ``Significance'' 
(Sec.  75.210(b)) in the factors that will be considered under the 
``Quality of the Project Design''

[[Page 74397]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  
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

[[Page 74398]]

evidence of promise about the grant-supported 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.
---------------------------------------------------------------------------

    \1\ See 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.
---------------------------------------------------------------------------

    Reasons: Although current Sec.  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.
---------------------------------------------------------------------------

    \2\ See 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.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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 Sec.  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 Sec.  75.261, which 
addresses the circumstances under which a grantee may request a no-cost 
extension of a project period.

[[Page 74399]]

    Proposed Regulations: We propose to amend Sec.  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 four-year 
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 Sec.  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 Sec.  75.251 to correspond to 
the proposed revisions to Sec.  75.250.
Section 75.253 Continuation of a Multi-Year Project After the First 
Budget Period
    Current Regulations: Under current Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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.

[[Page 74400]]

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 Sec.  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,'' ``quasi-experimental 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

[[Page 74401]]

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 ``Sec.  '' and a numbered heading; for example, 
Sec.  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 Sec.  
75.210 and statutory criteria that have been developed under the EDGAR 
procedures in Sec.  75.209.
    Regarding the burden imposed by the Generic Application Package, 
the Department proposes to add proposed Sec.  75.110 to the other 
sections already identified as creating burden related to that package. 
While Sec.  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 Sec.  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 Sec.  75.209 
and Sec.  75.210 under Sec.  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 
Sec.  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

[[Page 74402]]

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 Sec.  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 
program-specific 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 
program-specific 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 burden-hours 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 Sec.  75.110 to read as follows:


Sec.  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.

[[Page 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 Sec.  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 Sec.  75.209 to read as follows:


Sec.  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 Sec.  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 Sec.  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.


Sec.  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,

[[Page 74404]]

produce evidence about the project's effectiveness that would meet the 
What Works Clearinghouse Evidence Standards without reservations.\3\
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    (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\
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    (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 Sec.  75.266 to subpart D to read as follows:


Sec.  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 Sec.  75.250 to read as follows:


Sec.  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 Sec.  75.251 by adding a new paragraph (c) to read as 
follows:


Sec.  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 Sec.  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:


Sec.  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

[[Page 74405]]

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 Sec.  75.590 to read as follows.


Sec.  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 Sec.  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.


Sec.  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 anti-
discrimination 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 Sec.  77.1(c) by adding the following definitions in 
alphabetical order:


Sec.  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
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    (3) Randomized controlled trial that meets the What Works 
Clearinghouse Evidence Standards with or without reservations.\2\
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    (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

[[Page 74406]]

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.
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at the following link: http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?sid=19.
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    (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 multi-site sample 
requirements as long as each study meets the other requirements in this 
paragraph).
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* * * * *
    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).
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* * * * *
    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\
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at the following link: http://ies.ed.gov/ncee/wwc/DocumentSum.aspx?sid=19.
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* * * * *
    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 LEA-based 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).
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    (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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    \8\ See 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.
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[[Page 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