Administrative Priorities for Discretionary Grant Programs

AGENCY:

Office of Planning, Evaluation, and Policy Development, Department of Education.

ACTION:

Final priorities.

SUMMARY:

The Secretary of Education announces six priorities for discretionary grant programs that the Secretary may use in fiscal year (FY) 2020 and later years that expand the Department of Education's (the Department's) flexibility to give priority to a broader range of applicants with varying experience in administering Federal education funds (Priorities 1 and 2), applicants proposing to serve rural communities (Priorities 3 and 4), applicants that demonstrate a rationale for their proposed projects (Priority 5), or applicants proposing to collect data after the grant's original project period (Priority 6).

DATES:

These priorities are effective April 8, 2020.

FOR FURTHER INFORMATION CONTACT:

Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W312, Washington, DC 20202. Telephone: (202) 205-5231. Email: kelly.terpak@ed.gov.

SUPPLEMENTARY INFORMATION:

Program Authority: 20 U.S.C. 1221e-3.

We published a notice of proposed priorities in the Federal Register on November 29, 2019 (84 FR 65734). That notice contained background information and our reasons for proposing the particular administrative priorities.

We have made minor revisions to Priorities 1, 2, and 6, which we fully explain in the Analysis of Comments and Changes section of this document.

Public Comment: In response to our invitation in the notice of proposed priorities, 11 parties submitted comments, which, in total, addressed all six of the proposed priorities.

We group major issues according to subject.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priorities since publication of the notice of proposed priorities follows.

Comments: A few commenters questioned the impact of the Department's grant programs, recommended not making any changes, and wanted to ensure all funds go to public schools.

Discussion: We administer grant programs authorized and funded by Congress, and program statutes define which entities are eligible to apply. We intend to use these priorities to even the playing field for entities that are eligible for grants, but may lack experience or resources relative to more seasoned applicants. Additionally, Priorities 5 and 6 are designed to ensure we award projects that are based on a logic model and research and are better supported to collect longitudinal data. We believe both priorities will help us to measure and improve the impact our grants have on student outcomes.

Changes: None.

Comments: Multiple commenters expressed concern with Priorities 1 through 4, specifically Priorities 1 and 3, which prioritize a wider variety of applicants that commenters stated could lack prior experience or capacity to administer Federal grants. These commenters stated that the use of these priorities does not necessarily inform the applicant's ability to propose innovative projects.

Discussion: We appreciate commenters' concerns about applicant capacity and the importance of experience and demonstrated results. The Department agrees that organizational capacity is critical to a successful grant and provides regular technical assistance to grantees to ensure proper internal controls and compliance with Federal grant policies and procedures. In addition, before awarding grants, we conduct a review of the risks posed by applicants, including risks related to financial and management systems. However, we do not believe that only organizations that have previously or recently had Federal grants or that are experienced in grant writing can effectively manage awards and, as such, seek to expand the applicant and grantee pool in order to stimulate innovation in education across the country. The intent of these priorities is to prioritize grant awards in areas of the country and with grantees not previously served under Department grants. In programs where we would propose to use any of Priorities 1-4, we would carefully consider what resources and assistance we could provide to applicants and grantees to ensure strong applications and grant performance.

Changes: None.

Comments: Multiple commenters highlighted issues in prioritizing new potential grantees in programs where there is statutory language that prioritizes prior experience or specific statutory requirements on how funding decisions are made.

Discussion: The Department carefully considers which priorities to include in a grant competition, taking into consideration the purpose of the program and applicable statutory requirements. We only intend to use these priorities in programs where doing so is consistent with the program's authorizing statute.

Changes: None.

Comments: None.

Discussion: The Department wishes to clarify that, for Priorities 1 and 2, the phrase “under the program” is intended to mean the program's specific Catalog of Federal Domestic Assistance (CFDA) number and alpha. In situations where programs are newly authorized or reauthorized, the Department will consider on a case-by-case basis whether previous renditions of a grant program are considered to be “under the program.” The Department may consider several factors, including: (a) Whether the notice inviting applications for the program included a waiver of rulemaking in a previous competition under section 437(d)(1) of the General Education Provisions Act for a first grant competition under a new or substantially revised program authority, (b) the extent of programmatic changes when reauthorized, or (c) whether the program is newly authorized in statute. For these situations, the Department will identify “the program” in the competition's notice inviting applications for the purposes of Priorities 1 and 2.

Changes: None.

Comments: A few commenters expressed concerns with prioritizing grants that would serve rural communities, noting that these projects may be more likely to serve a small number of students or have a limited scope, and have other funding mechanisms available to rural communities.

Discussion: We recognize the concern that, under Priority 3—Rural Applicants, applicants may propose projects that serve a smaller number of students than urban applicants; however, we believe that rural applicants may often lack resources more widely available to urban applicants to submit higher-quality applications and want to ensure an equal playing field for rural applicants whenever possible. We also recognize that while rural communities may receive other funding from the Department, such as through formula funds, non-rural communities also receive formula funds, and thus, these funds should not limit a community from applying for discretionary funds. Unless a program has specific statutory or regulatory requirements for the size and scope of a grant project, we do not believe that applicants should be penalized for proposing a project on a smaller scale. Moreover, we would carefully consider a program's purpose and design when determining when to use the Rural Applicant priority.

Changes: None.

Comments: Multiple commenters expressed support for Priorities 5 and 6 and the use of evidence and data to inform grantmaking, encouraging the Department to use these priorities where possible, including using Priority 5 as an absolute priority.

Discussion: We appreciate the comments in support of Priorities 5 and 6. The Department will carefully consider whether and how to include one or both these priorities in a competition, and whether to use these priorities as absolute, competitive preference, or invitational priorities, based on the program's purpose and design.

Changes: None.

Comments: None.

Discussion: As proposed, under paragraphs (iii), (iv), and (v) of Priority 1, programs would have had the discretion to establish the number of years that would have had to elapse since an applicant has had an active discretionary grant under that program, or an active discretionary grant or a contract from the Department, in order to qualify as a new potential grantee under those paragraphs of Priority 1. We proposed a similar formulation for qualifying as an applicant that is not a new potential grantee under Priority 2. Upon further review, rather than allowing a program broad discretion in establishing the number of years, we are revising paragraphs (iii), (iv), and (v) to provide a list of years—ranging from one year to seven—from which a program can choose. We believe these changes will more clearly convey the reasonable range of options that we intended in allowing programs the flexibility to determine what number of years, for a particular program, would result in giving priority to a broader range of applicants with varying experience in administering Federal education funds. We are establishing seven years as the outer bound because that period of time is sufficient to meet the goal of the priority—engaging a broader range of entities as grantees—without making it difficult for the Department to promptly and reliably ascertain whether a particular entity meets the priority's requirements.

Changes: We have added a list of years under paragraphs (iii), (iv), and (v) in Priorities 1 and 2.

Comments: None.

Discussion: In Priority 4, we are clarifying, in paragraph (d), that the applicant does not propose to serve a campus with a rural setting.

Changes: We have modified paragraph (d) in Priority 4 to say “does not.”

Comments: None.

Discussion: Upon further review, we are revising the title of Priority 5 to remove the reference to a logic model, in order to align the title with the defined term “demonstrates a rationale” in 34 CFR 77.1.

Changes: We have removed the reference to the “logic model” in the priority title for Priority 5.

Comments: None.

Discussion: Upon further review, we are revising Priority 6 to more clearly align with 34 CFR 75.250(b) and to clarify what information an applicant would need to provide in addressing this priority.

Changes: We have revised the priority to specifically reference 34 CFR 75.205(b), request a budget as well as a data collection period, and specify a maximum length of up to 72 months.

Final Priorities

Priority 1—Applications From New Potential Grantees

(a) Under this priority, an applicant must demonstrate one or more of the following:

(i) The applicant has never received a grant, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, under the program from which it seeks funds.

(ii) The applicant does not, as of the deadline date for submission of applications, have an active grant, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, under the program from which it seeks funds.

(iii) The applicant has not had an active discretionary grant under the program from which it seeks funds, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, in one of the following number of years before the deadline date for submission of applications under the program:

(1) One year;

(2) Two years;

(3) Three years;

(4) Four years;

(5) Five years;

(6) Six years; or

(7) Seven years.

(iv) The applicant has not had an active discretionary grant from the Department, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, in one of the following number of years before the deadline date for submission of applications under the program:

(1) One year;

(2) Two years;

(3) Three years;

(4) Four years;

(5) Five years;

(6) Six years; or

(7) Seven years.

(v) The applicant has not had an active contract from the Department in one of the following number of years before the deadline date for submission of applications under the program:

(1) One year;

(2) Two years;

(3) Three years;

(4) Four years;

(5) Five years;

(6) Six years; or

(7) Seven years.

(b) For the purpose of this priority, a grant or contract is active until the end of the grant's or contract's project or funding period, including any extensions of those periods that extend the grantee's or contractor's authority to obligate funds.

Priority 2—Applications From Grantees That Are Not New Potential Grantees

(a) Under this priority, an applicant must demonstrate one or more of the following:

(i) The applicant has received a grant, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, under the program from which it seeks funds.

(ii) The applicant has, as of the deadline date for submission of applications, an active grant, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, under the program from which it seeks funds.

(iii) The applicant has had an active discretionary grant under the program from which it seeks funds, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, in one of the following number of years before the deadline date for submission of applications under the program:

(1) One year;

(2) Two years;

(3) Three years;

(4) Four years;

(5) Five years;

(6) Six years; or

(7) Seven years.

(iv) The applicant has had an active discretionary grant from the Department, including through membership in a group application submitted in accordance with 34 CFR 75.127-75.129, in one of the following number of years before the deadline date for submission of applications under the program:

(1) One year;

(2) Two years;

(3) Three years;

(4) Four years;

(5) Five years;

(6) Six years; or

(7) Seven years.

(v) The applicant has had an active contract from the Department in one of the following number of years before the deadline date for submission of applications under the program:

(1) One year;

(2) Two years;

(3) Three years;

(4) Four years;

(5) Five years;

(6) Six years; or

(7) Seven years.

(b) For the purpose of this priority, a grant or contract is active until the end of the grant's or contract's project or funding period, including any extensions of those periods that extend the grantee's or contractor's authority to obligate funds.

(c) This priority can only be used in competitions where the priority for Applications from New Potential Grantees is used.

Priority 3—Rural Applicants

Under this priority, an applicant must demonstrate one or more of the following:

(a) The applicant proposes to serve a local educational agency (LEA) that is eligible under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under Title V, Part B of the Elementary and Secondary Education Act of 1965, as amended.

(b) The applicant proposes to serve a community that is served by one or more LEAs—

(i) With a locale code of 32, 33, 41, 42, or 43; or

(ii) With a locale code of 41, 42, or 43.

(c) The applicant proposes a project in which a majority of the schools served—

(i) Have a locale code of 32, 33, 41, 42, or 43; or

(ii) Have a locale code of 41, 42, or 43.

(d) The applicant is an institution of higher education (IHE) with a rural campus setting, or the applicant proposes to serve a campus with a rural setting. Rural settings include any of the following: Town-Fringe, Town-Distant, Town-Remote, Rural Fringe, Rural-Distant, Rural-Remote, as defined by the National Center for Education Statistics (NCES) College Navigator search tool.

Note:

To determine whether a particular LEA is eligible for SRSA or RLIS, refer to the Department's website at https://oese.ed.gov/offices/office-of-formula-grants/rural-insular-native-achievement-programs/rural-education-achievement-program/ . Applicants are encouraged to retrieve locale codes from the NCES School District search tool ( https://nces.ed.gov/ccd/districtsearch/ ), where LEAs can be looked up individually to retrieve locale codes, and Public School search tool ( https://nces.ed.gov/ccd/schoolsearch/ ), where individual schools can be looked up to retrieve locale codes. Applicants are encouraged to retrieve campus settings from the NCES College Navigator search tool ( https://nces.ed.gov/collegenavigator/ ) where IHEs can be looked up individually to determine the campus setting.

Priority 4—Non-Rural Applicants

Under this priority, an applicant must demonstrate one or more of the following:

(a) The applicant does not propose to serve a local educational agency (LEA) that is eligible under the Small Rural School Achievement (SRSA) program or the Rural and Low-Income School (RLIS) program authorized under Title V, Part B of the Elementary and Secondary Education Act of 1965, as amended.

(b) The applicant does not propose to serve a community that is served by one or more LEAs—

(i) With a locale code of 32, 33, 41, 42, or 43; or

(ii) With a locale code of 41, 42, or 43.

(c) The applicant does not propose a project in which a majority of the schools served—

(i) Have a locale code of 32, 33, 41, 42, or 43; or

(ii) Have a locale code of 41, 42, or 43.

(d) The applicant is not an institution of higher education (IHE) with a rural campus setting, or the applicant does not propose to serve a campus with a rural setting. Rural settings include any of the following: Town-Fringe, Town-Distant, Town-Remote, Rural Fringe, Rural-Distant, Rural-Remote, as defined by the National Center for Education Statistics (NCES) College Navigator search tool.

(e) This priority can only be used in competitions where the priority for Rural Applicants is used.

Note:

To determine whether a particular LEA is eligible for SRSA or RLIS, refer to the Department's website at https://oese.ed.gov/offices/office-of-formula-grants/rural-insular-native-achievement-programs/rural-education-achievement-program/ . Applicants are encouraged to retrieve locale codes from the NCES School District search tool ( https://nces.ed.gov/ccd/districtsearch/ ), where LEAs can be looked up individually to retrieve locale codes, and Public School search tool ( https://nces.ed.gov/ccd/schoolsearch/ ), where individual schools can be looked up to retrieve locale codes. Applicants are encouraged to retrieve campus settings from the NCES College Navigator search tool ( https://nces.ed.gov/collegenavigator/ ) where IHEs can be looked up individually to determine the campus setting.

Priority 5—Applications That Demonstrate a Rationale

Under this priority, an applicant proposes a project that demonstrates a rationale (as defined in 34 CFR 77.1).

Priority 6—Data Collection

Under this priority and consistent with 34 CFR 75.250(b), an applicant includes a budget for and description of a data collection period for a period of up to 72 months, as specified in the notice inviting applications, after the end of the project period.

Types of Priorities

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This notice does not solicit applications. In any year in which we choose to use one or more of these priorities, we invite applications through a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because this regulatory action is not a significant regulatory action, the requirements of Executive Order 13771 do not apply.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent 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 final priorities 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 this regulatory action is consistent with the principles in Executive Order 13563.

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

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Discussion of Potential Costs and Benefits

We have reviewed the priorities in accordance with Executive Orders 12866 and 13563 and do not believe that these priorities would generate a considerable increase in burden or cost. We believe that the combined benefit of Priorities 1, 2, 3, and 4 would be increased diversity among the Department's grantees. Priority 1 gives the Department the opportunity to prioritize a “new potential grantee” with greater flexibility than is currently available through the existing Education Department General Administrative Regulations provision allowing the Department to give special consideration to “novice applicants.” We believe that this priority could result in a number of changes in the behavior of both Department staff and applicants. We believe that the additional flexibility in the new definition would increase the number of competitions in which we prioritize a “new potential grantee,” resulting in additional applicants submitting applications for competitions that include such a priority. Using this priority could increase access to the Department's grants for eligible entities who have struggled to submit competitive applications in the past. However, because application submission and participation in our discretionary grant programs is voluntary, we do not think that it would be appropriate to characterize any increased participation in our grant competitions as costs associated with these priorities. Moreover, we believe any costs will be significantly outweighed by the potential benefits of more efficiently targeting funds and expanding the research base. In addition, participation in a discretionary grant program is entirely voluntary; as a result, these priorities do not impose any particular burden except when an entity voluntarily elects to apply for a grant.

Priority 2, as the inverse of Priority 1, similarly does not create costs or benefits, but may result in shifting some of the Department's grants among eligible entities. Again, since application submission and participation in our discretionary grant programs is voluntary, we do not think that it would be appropriate to characterize any increased participation or differences in which entities receive awards as costs associated with this priority.

Priority 3 gives the Department the opportunity to prioritize rural applicants. We believe that this priority could result in changes in the behavior of both Department staff and applicants similar to those described above with respect to Priority 1. First, we believe that a priority for supporting rural communities will increase the number of competitions in which we prioritize rural applicants. Second, we believe that it may result in additional applicants submitting applications for competitions that include such a priority, which could result in shifting some of the Department's grants among eligible entities. However, because application submission and participation in our discretionary grant programs is voluntary, we do not think that it would be appropriate to characterize any increased participation in our grant competitions as costs associated with this priority.

Similar to Priority 2, Priority 4, as the inverse of Priority 3, does not create costs or benefits. Instead, Priorities 3 and 4 may have the result of shifting at least some of the Department's grants among eligible entities. Again, since application submission and participation in our discretionary grant programs is voluntary, we do not think that it would be appropriate to characterize any increased participation or differences in which entities receive awards as costs associated with this priority.

To the extent a program directs additional resources to evidence-based strategies or helps build the evidence base on a particular action or approach, such as through Priorities 5 and 6, there may be a benefit in the form of more effective use of Federal funding and broadened information about the evidence on the grantee's approach in the grantee's setting. However, it is not possible to quantify the extent of such a benefit without knowing which programs will use these priorities and in what circumstances.

Priority 5 allows the Secretary to prioritize or require applicants to submit a logic model that is informed by research findings. This provision may result in qualitative benefits if grantees use the logic model to better plan their projects and more clearly communicate the intended outcomes. Many grant competitions already include a requirement similar to this priority and, to the extent it is included in additional competitions in the future, we do not believe that it would create a substantial burden for applicants, because we assume that applicants in those programs would likely already have conceptualized an implicit logic model for their applications and would, therefore, experience only minimal paperwork burden associated with explaining it in their applications. In addition, the Department has several publicly available resources on designing logic models and intends to provide pre-applicant technical assistance on this subject where appropriate.

Finally, Priority 6 allows the Department to give priority to applications that propose to collect data after the original project period. The priority would not require a grantee to fund the data collection period itself; rather, at the completion of a project period, the Department would provide additional funds for data collection under existing authority to do so. As with Priorities 1 and 2, because this priority would neither expand nor restrict the universe of eligible entities for any Department grant program, since application submission and participation in our discretionary grant programs is voluntary, and since the Department would provide the additional funding to support the data collection period, we do not think that using this priority in a competition would incur costs on the part of the applicant. However, it is possible that, in electing to provide data collection grants to a particular cohort of grantees, the Department would have fewer funds available to fund new awards in future years. For example, if a cohort of five-year grants was awarded in 2020, and those grantees received data collection extensions in 2026, funds that would have been available in 2026 for new awards would be used, instead, to support the data collection extensions. It is not possible to predict the specific costs related to shifts from new awards to data collection awards because each grant program is funded at different levels and awards different average amounts to its grantees. Further, we anticipate that funding provided to grantees for the purpose of extended data collection would vary considerably depending on the scope of the original grant project and the scope of the extended data collection proposal. Finally, we believe that longitudinal data are valuable as a resource for practitioners, researchers, and the Department, and providing resources for extended data collection would likely improve the quality of information available on promising approaches to improve education outcomes.

Regulatory Flexibility Act Certification: The Secretary certifies that the final priorities will not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration (SBA) Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.

Of the impacts we estimate accruing to grantees or eligible entities, all are voluntary and related mostly to an increase in the number of applications prepared and submitted annually for competitive grant competitions. Therefore, we do not believe that the final priorities will significantly impact small entities beyond the potential for increasing the likelihood of their applying for, and receiving, competitive grants from the Department.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

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