[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Notices]
[Pages 4553-4555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1961]


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DEPARTMENT OF EDUCATION

[CFDA Number: 84.368; Docket ID ED-2012-OESE-0002]


Proposed Revision to Selection Criteria--Enhanced Assessment 
Instruments

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Notice.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
proposes to amend the selection criteria under the Enhanced Assessment 
Instruments Grant program, also called the Enhanced Assessment Grant 
(EAG) program, as established in the notice of final priorities, 
requirements, definitions, and selection criteria (2011 NFP). The 2011 
NFP established specific priorities, requirements, definitions, and 
selection criteria that may be used for the EAG program. The changes 
proposed in this notice would provide the Secretary with additional 
flexibility with respect to selection criteria for EAG competitions in 
2012 that use fiscal year (FY) 2011 funds and for subsequent 
competitions. We believe that these proposed changes would enable the 
Department to administer this program more effectively, simplify the 
application and review processes, and better ensure that the strongest 
applications receive EAG funds.

DATES: We must receive your comments on or before February 29, 2012.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by email. To ensure that we do not receive 
duplicate copies, please submit your comments only once. In addition, 
please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed revisions to 
selection criteria, address them to Student Achievement and School 
Accountability Programs, Office of Elementary and Secondary Education 
(Attention: EAG Comments), U.S. Department of Education, 400 Maryland 
Avenue SW., mail stop 6132, Washington, DC 20202-[fill in last four 
digits of zip code].

    Privacy Note:  The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to 
include in their comments only information that they wish to make 
publicly available.


FOR FURTHER INFORMATION CONTACT: Collette Roney. Telephone: (202) 401-
5245 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service, toll free, at 1-(800) 877-8339.

SUPPLEMENTARY INFORMATION:
    Invitation To Comment: We invite you to submit comments regarding 
this notice. To ensure that your comments have maximum effect in 
developing the notice of final revisions to the selection criteria, we 
urge you to identify clearly the specific proposed revisions your 
comment addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed revisions to the selection criteria. Please let us know of any 
further ways we could reduce potential costs or increase potential 
benefits while preserving the effective and efficient administration of 
the program.
    During and after the comment period, you may inspect all public 
comments about this notice by accessing Regulations.gov. You may also 
inspect the comments in person, in room 3W226, 400 Maryland Avenue SW., 
Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Washington, 
DC time, Monday through Friday of each week except Federal holidays.
    Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record: On request we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this notice. If you want to schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Purpose of the Program: The purpose of the EAG program is to 
enhance the quality of assessment instruments and systems used by 
States for measuring the academic achievement of elementary and 
secondary school students.

    Program Authority:  20 U.S.C. 7301a.


[[Page 4554]]


    Summary of Proposed Changes: The changes we are proposing in this 
notice would provide the Secretary the flexibility, in establishing 
selection criteria used in grant competitions conducted under the EAG 
program using FY 2011 funds or funds from subsequent years to choose 
selection criteria and factors--(a) From those established in the 2011 
NFP for the EAG program, published in the Federal Register on April 19, 
2011 (76 FR 21986), (b) from the general selection criteria in the 
Education Department General Administrative Regulations (EDGAR) in 34 
CFR 75.210, (c) based on statutory provisions in accordance with 34 CFR 
75.209, or (d) from any combination of the selection criteria and 
factors in paragraphs (a) through (c).
    These proposed changes would allow the Department more flexibility 
to better achieve the program's purposes. Specifically, the Department 
would have the flexibility to use the most appropriate selection 
criteria in any year in which this program is in effect, ensuring that 
the EAG program can be adapted to address the evolving needs of the 
American education system with respect to the assessments used by 
States to hold schools and districts accountable for student 
performance.

Selection Criteria

Background

    The 2011 NFP established specific selection criteria for the EAG 
program that the Department can use to evaluate EAG applications.\1\ 
The Department may apply one or more of these selection criteria in any 
year in which a competition for program funds is held.
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    \1\ See 76 FR 21995-21996 [available at: http://edocket.access.gpo.gov/2011/pdf/2011-9479.pdf].
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    We have concluded that greater flexibility is desirable for 
choosing selection criteria, and the factors used to determine the 
degree to which an applicant meets the criteria, in order to enable the 
Department to align selection criteria with the assessment needs 
identified by the Department and the priorities established for a given 
competition. Such flexibility would also allow the Department to 
simplify the selection criteria, as appropriate, for a particular 
competition. Accordingly, we are proposing in this notice that, when 
establishing selection criteria for an EAG competition, the Secretary 
may choose one or more of the selection criteria and factors--(a) 
Established for the EAG program in the 2011 NFP, (b) from the general 
selection criteria in 34 CFR 75.210, (c) based on statutory provisions 
in accordance with 34 CFR 75.209, or (d) from any combination of these 
criteria and factors for the purpose of evaluating grant applications 
under the EAG program.\2\
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    \2\ The Department's regulations in EDGAR govern, among other 
things, the use of selection criteria to evaluate discretionary 
grant applications. Under 34 CFR 75.200, the Secretary may use 
selection criteria based on statutory provisions in accordance with 
34 CFR 75.209, selection criteria in program-specific regulations, 
selection criteria established under 34 CFR 75.210, or any 
combination of these. The Secretary may select from the menu one or 
more criteria that best enable the Department to select the highest-
quality applications, consistent with the program purpose, statutory 
requirements, and any priorities established for a competition. For 
additional information on 34 CFR 75.209 and 34 CFR 75.270, see 
http://www2.ed.gov/policy/fund/reg/edgarReg/edgar.html.
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    We believe that the proposed change will enable the Department to 
administer this program more effectively, simplify the application and 
review processes, and better ensure that the strongest applications 
receive EAG funds.

Proposed Revision to Selection Criteria

    The Assistant Secretary proposes that the Secretary may use one or 
more of the selection criteria listed in paragraphs (a) through (d) for 
evaluating an application under this program. This flexibility would 
include the authority to reduce the number of selection criteria. 
Within each criterion from these sources, in order to determine the 
degree to which an applicant meets a criterion, the Secretary would 
further define each criterion by selecting one or more specific factors 
within a criterion or assigning factors from one criterion, from any of 
those sources, to another criterion, in any of those sources. We may 
apply one or more of these criteria in any year in which this program 
is in effect. In the notice inviting applications or the application 
package or both we will announce the maximum possible points assigned 
to each criterion.
    (a) The selection criteria established in the 2011 NFP.
    (b) The selection criteria in 34 CFR 75.210.
    (c) Selection criteria based on the statutory requirements for the 
EAG program in accordance with 34 CFR 75.209.
    (d) Any combination of selection criteria and factors in paragraphs 
(a) through (c).

Final Revisions to Selection Criteria

    We will announce the final revisions in a notice in the Federal 
Register. We will determine the final revisions after considering 
responses to this notice and other information available to the 
Department. This notice does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

    Note:  This notice does not solicit applications. In any year in 
which we choose to use one or more of these selection criteria, we 
invite applications through a notice in the Federal Register.\3\

    \3\ Availability of funds for the EAG program for a given year 
is contingent upon an appropriation of funds for the program by the 
Congress.
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Executive Orders 12866 and 13563

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and, therefore, subject to 
the requirements of the Executive Order and subject to review by the 
Office of Management and Budget (OMB). Section 3(f) of Executive Order 
12866 defines a ``significant regulatory action'' as an action likely 
to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive Order.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    We have also reviewed this proposed regulatory action under 
Executive Order 13563, which supplements and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only on 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

[[Page 4555]]

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 taking this regulatory action only on a reasoned 
determination that its benefits justify its 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

    This proposed regulatory action affects only State educational 
agencies (SEAs) or consortia of SEAs applying for assistance under the 
EAG program. It creates flexibility for the Department, with respect to 
EAG competitions in 2012 for FY 2011 funds and for subsequent 
competitions, to select from among, or to combine, selection criteria 
that were established in the 2011 NFP criteria, selection criteria from 
34 CFR 75.210, and other selection criteria based on the statute under 
34 CFR 75.209. This flexibility would allow the Department to align 
selection criteria with program needs and ensure that the strongest 
applications are selected for funding under the program.
    We believe that adding this flexibility would not impose a 
financial burden that SEAs would not otherwise incur in the development 
and submission of a grant application under the EAG program. In 
addition, under some circumstances (for example, if the Department 
elected to use fewer criteria or factors in a given competition), the 
proposed changes could reduce the financial burden of preparing an EAG 
grant application by a modest amount. Moreover, the Department expects 
a small number of applicants, which further serves to mitigate any 
potential costs.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or computer diskette) 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.

    Dated: January 25, 2012.
Michael Yudin,
Acting Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2012-1961 Filed 1-27-12; 8:45 am]
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