[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Proposed Rules]
[Pages 5337-5345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01567]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2012-OESE-0033]


Proposed Priorities, Requirements, Definitions, and Selection 
Criteria--Enhanced Assessment Instruments

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

ACTION: Proposed priorities, requirements, definitions, and selection 
criteria.

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    Catalog of Federal Domestic Assistance (CFDA) Number: 84.368
SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
proposes priorities, requirements, definitions, and selection criteria 
under the Enhanced Assessment Instruments Grant program, also called 
the Enhanced Assessment Grants (EAG) program. The Assistant Secretary 
may use one or more of these priorities, requirements, definitions, and 
selection criteria for competitions using funds from fiscal year (FY) 
2012 and later years. The Department takes these actions in order to 
establish priorities, requirements, definitions, and selection criteria 
that are likely to recognize high-quality proposals and to help focus 
Federal financial assistance on the pressing needs of, and promising 
developments in, developing or enhancing assessments under the 
Elementary and Secondary Education Act of 1965, as amended (ESEA).

DATES: We must receive your comments on or before February 25, 2013, 
and we encourage you to submit comments well in advance of this date.

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 we do not receive 
duplicate comments, please submit your comments only once. In addition, 
please include the Docket ID and the term ``Enhanced Assessment 
Grants--Comments'' 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 priorities, requirements, 
definitions, and selection criteria, address them to the Office of 
Elementary and Secondary Education (Attention: Enhanced Assessment 
Grants--Comments), U.S. Department of Education, 400 Maryland Avenue 
SW., room 3w110, Washington, DC 20202-6132.

    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: Erin Shackel. Telephone: (202) 453-
6423 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
this notice. To ensure that your comments have maximum effect in 
developing the notice of final priorities, requirements, definitions, 
and selection criteria, we urge you to identify clearly the specific 
proposed priority, requirement, definition, or selection criterion that 
each comment addresses.
    Please note that we have included existing requirements and 
selection criteria in this document to provide context and to make it 
easier to comment on the requirements and selection criteria we are 
proposing. We seek comment only on the proposed priorities, 
requirements, definitions, and selection criteria.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
priorities, requirements, definitions, and selection criteria. Please 
let us know of any further ways the Department 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 in room 3W110, 400 Maryland Avenue SW., 
Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., 
Washington, DC time, Monday through Friday of each week except Federal 
holidays.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request the Department will provide an 
appropriate accommodation or auxiliary to aid an individual with a 
disability who needs assistance to review the comments or other 
documents in the public rulemaking record for this notice. If you want 
to schedule an appointment for this type of accommodation or auxiliary 
aid, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Purpose of Program: The 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.


[[Page 5338]]


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

    Proposed Priorities:
    This notice contains two proposed priorities. The Department may 
apply one or more of these priorities in any year in which a 
competition for program funds is held.
    Background:
    Section 6112 of the ESEA authorizes the Department, through the EAG 
program, to make competitive grant awards to State educational agencies 
(SEAs) and consortia of SEAs to help them enhance the quality of their 
assessment instruments and assessment systems. The EAG program includes 
the following four statutory priorities:
    (a) Collaborating with institutions of higher education, other 
research institutions, or other organizations to improve the quality, 
validity, and reliability of State academic assessments beyond the 
requirements for such assessments described in section 1111(b)(3) of 
the ESEA;
    (b) Measuring student academic achievement using multiple measures 
of student academic achievement from multiple sources;
    (c) Charting student progress over time; and
    (d) Evaluating student academic achievement through the development 
of comprehensive academic assessment instruments, such as performance- 
and technology-based academic assessments.
    An applicant for EAG funds must address one or more of these 
statutory priorities to be eligible for an award.
    Through this notice, the Department proposes two additional 
priorities that are designed to support States' assessment work in 
early learning. The Department believes that a high-quality State early 
learning system involves several key components. These include, among 
other elements, early learning and development standards (as defined in 
this notice) that reflect the essential domains of school readiness (as 
defined in this notice) and a comprehensive early learning assessment 
system (as defined in this notice). Such an assessment system, when 
well-designed and properly implemented, can inform teaching and program 
improvement and contribute to better outcomes for children.\1\
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    \1\ National Research Council (2008). Early Childhood 
Assessment: Why, What, and How. Committee on Developmental Outcomes 
and Assessments for Young Children, C.E. Snow and S.B. Van Hemel, 
Editors. Board on Children, Youth, and Families, Board on Testing 
and Assessment, Division of Behavioral and Social Sciences and 
Education. Washington, DC: The National Academies Press. Available 
at www.nap.edu/catalog.php?record_id=12446.
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    The priorities we propose in this notice focus on one piece of a 
comprehensive early learning assessment system--the kindergarten entry 
assessment (KEA). In particular, these priorities will support the 
development or enhancement of KEAs and promote collaboration among 
States in the development or enhancement of a common KEA.
    A KEA is a critical piece of a comprehensive early learning 
assessment system because it provides a snapshot of children's learning 
and development at kindergarten entry. A well-designed and properly 
implemented KEA also can provide data to suggest areas where children 
may need interventions or additional supports in order to be successful 
in the early grades. Over time, when included as part of a 
comprehensive early learning assessment system, a KEA can provide data 
that will inform State efforts to improve child learning outcomes and 
help close achievement gaps.
    Over the last decade, States have demonstrated an increased 
interest in understanding children's learning and development at 
kindergarten entry. Approximately half of States have instituted some 
form of early learning assessment.\2\ However, these assessments vary 
widely in their alignment with early learning and development 
standards, in the depth and scope of the domains they address, and in 
how the data generated are used.\3\
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    \2\ J. Stedron & A. Berger. 2010. NCSL Technical Report: State 
Approaches to School Readiness Assessment (updated August 2010). 
Denver, CO: National Conference of State Legislators. www.ncsl.org/documents/Educ/KindergartenAssessment.pdf.
    \3\ S. Daily, M. Burkhauser, & T. Halle. 2010. ``A Review of 
School Readiness Practices in the States: Early Learning Guidelines 
and Assessments.'' Early Childhood Highlights 1 (3). Available at 
www.childtrends.org/Files/Child_Trends-2010_06_18_ECH_SchoolReadiness.pdf.
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    The priorities proposed in this notice build on the Department's 
efforts to fund States collaborating to support children and youth 
across the cradle-through-college-to-career continuum. Grants under 
three Department programs, including the EAG program, currently support 
State-led efforts to develop common assessments among States. The 
Department has funded two EAG awards to support States collaborating to 
develop English language proficiency (ELP) assessment systems. The 
assessments in the systems developed under these EAG-ELP grants must be 
aligned with English language proficiency standards that correspond to 
a common set of college- and career-ready standards in English language 
arts and mathematics. The Department also is funding projects involving 
large consortia of States through the Race to the Top Assessment (RTTA) 
program and companion projects through the General Supervision 
Enhancement Grants (GSEG) program under the Individuals with 
Disabilities Education Act (IDEA) to develop both general and alternate 
assessments that are aligned with a common set of college- and career-
ready standards in English language arts and mathematics.
    In addition, the Department is maintaining support for the 
beginning of the cradle-through-college-to-career continuum through the 
Race to the Top--Early Learning Challenge (RTT-ELC) program. Jointly 
administered with the U.S. Department of Health and Human Services, 
RTT-ELC reflects the Departments' commitment to supporting America's 
youngest learners in developing the knowledge, skills, and dispositions 
toward learning they need to enter kindergarten ready to succeed in 
school and in life. To date, 14 States have been awarded RTT-ELC grants 
to fund education reform through developing or enhancing coordinated 
State systems of early learning. These RTT-ELC grants specifically 
support States' efforts to increase the number of children with high 
needs enrolled in high-quality early learning and development programs.
    Recipients of RTT-ELC grants are eligible to apply for grants under 
the EAG program, including competitions (if any) using the KEA 
priority. However, the Department expects that these applicants will 
propose activities that are consistent with but do not duplicate 
activities included in their RTT-ELC applications.

Proposed Priority 1--Kindergarten Entry Assessment

    Background: The Department believes that a high-quality KEA should 
provide critical information about children's learning and development 
across all the essential domains of school readiness (as defined in 
this notice), inform instruction at kindergarten entry and throughout 
the year, and support efforts to close the school-readiness gap. 
Families should be able to use this information to provide support for 
children at home. Teachers should be able to use this information to 
modify instruction at kindergarten entry and throughout the year, adapt 
curricula, and focus professional development needs. In addition, a 
high-quality KEA should provide information to support effective 
programmatic decisions and better target investments in the years 
before kindergarten. Proposed Priority 1

[[Page 5339]]

would support the development or enhancement of high-quality KEAs. 
These assessments would be integrated into States' student assessment 
systems and, if they exist, into the States' early learning assessment 
systems.
    Under the proposed priority a KEA would be administered to children 
soon enough after their enrollment in kindergarten so that results 
could be used to inform instruction at kindergarten entry and 
throughout the year, adapt curricula, and focus professional 
development to help close any educational gaps.
    The proposed priority also would require that the KEA be aligned 
with States' high-quality early learning and development standards (as 
defined in this notice), which are aligned with the States' K-3 
academic content standards in, at a minimum, early literacy and 
mathematics. In addition, KEAs developed under the proposed priority 
must measure each child's development across the full range of the 
essential domains of school readiness (as defined in this notice).
    A KEA developed or enhanced under this proposed priority must be of 
high technical quality and be consistent with the guidelines on early 
childhood assessments made by the National Research Council.\4\ We 
propose to require that these KEAs be consistent with the National 
Research Council guidelines in light of the direction we received from 
Congress for the RTT-ELC program that States receiving grants under 
that program provide an assurance that any use of early childhood 
assessments conform to National Research Council reports on early 
childhood.\5\ We believe that Congress would also expect that any early 
learning assessments developed under the EAG program would be similarly 
aligned with the National Research Council findings.
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    \4\ See www.nap.edu/catalog.php?record_id=12446.
    \5\ See Department of Defense and Full-Year Continuing 
Appropriations Act, 2011, Division B, Sec.  1832(b), Public Law 112-
10 (April 15, 2011).
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    Further, a KEA developed or enhanced under this proposed priority 
must not be used to prevent children's entry into kindergarten.
    In short, the proposed priority is intended to produce KEAs that 
provide a snapshot of information on children's learning and 
development across multiple domains and can be integrated into States' 
student assessment systems, and if they exist, included in a States' 
comprehensive early learning assessment systems. The data generated 
from a KEA developed or enhanced through this grant would inform and 
support educators in providing effective learning opportunities to 
every child, and prevent or close achievement gaps.
    Proposed Priority 1: Kindergarten Entry Assessment.
    To meet this priority, an applicant must propose a project that 
supports the development or enhancement of a KEA that meets the 
following requirements:
    (a) Purpose. The KEA must--
    (1) Yield information that enables State and local agencies to 
effectively target investments for early learning and development 
systems serving children in the years before kindergarten;
    (2) Yield information that enables programmatic decision-making at 
the school level, such as identifying individual children's needs and 
providing necessary supports to children and teachers in order to meet 
those needs at kindergarten entry and throughout the year;
    (3) Yield information to guide individualized instruction for 
children enrolled in kindergarten and throughout the school year;
    (4) Provide families with information about their children's 
learning and development based on the essential domains of school 
readiness (as defined in this notice); and
    (5) Not be used to prevent children's entry into kindergarten.
    (b) Design. The KEA must--
    (1) Be a component of a State's student assessment system, 
including, a State's comprehensive early learning assessment system (as 
defined in this notice) for each State included in an application in 
which a comprehensive early learning assessment system exists;
    (2) Be aligned with a set of early learning and development 
standards (as defined in this notice);
    (3) Measure the full range of learning and development across the 
essential domains of school readiness (as defined in this notice);
    (4) Measure children's learning and development against a set of 
levels of performance where the levels of performance encompass 
descriptors of what a child knows and is able to do for each level, are 
common statewide, and, if the applicant State applies on behalf of a 
consortium, are common across States in the consortium;
    (5) Provide a summative assessment of each child's learning and 
development at kindergarten entry across the essential domains of 
school readiness (as defined in this notice);
    (6) Be capable of assessing all children in the applicant State, 
and if the State applies as part of a consortium, all children in the 
consortium;
    (7) Be developed consistent with universal design principles to be 
accessible to all children, including children with disabilities or 
developmental delays and English learners (as defined in this notice);
    (8) As needed, provide appropriate accommodations and supports for 
children with disabilities or developmental delays and English learners 
(as defined in this notice) (e.g., augmentative communication devices 
and assistive technologies);
    (9) Be administered soon enough after a child's enrollment into 
kindergarten to achieve the purposes for which the assessment was 
developed, including the purposes specified in paragraph (a) of this 
priority;
    (10) Use multiple methods (e.g., performance tasks, selected 
responses, observational ratings) to measure children's performance and 
development;
    (11) Be administered by a trained assessor or assessors;
    (12) Be designed to incorporate technology in the collection of 
student data and in the process of assessing children's performance on 
learning and development tasks; and
    (13) Be cost-effective to administer, maintain, and enhance during 
and after the project period.
    (c) Technical Quality. The KEA must measure children's learning and 
development at kindergarten entry in ways that--
    (1) Are consistent with nationally recognized professional and 
technical standards for assessment;
    (2) Are consistent with the recommendations of the National 
Research Council report on early childhood assessments; \6\
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    \6\ National Research Council. (2008). Early Childhood 
Assessment: Why, What, and How. Committee on Developmental Outcomes 
and Assessments for Young Children, C.E. Snow and S.B. Van Hemel, 
Editors. Board on Children, Youth, and Families, Board on Testing 
and Assessment, Division of Behavioral and Social Sciences and 
Education. Washington, DC: The National Academies Press. Available 
at www.nap.edu/catalog.php?record_id=12446.
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    (3) Are valid, reliable, and appropriate for their intended 
purposes;
    (4) Provide a valid and reliable measure across the performance 
spectrum of each child's learning and development at kindergarten 
entry, including children with disabilities or developmental delays and 
English learners.
    (d) Data. The KEA must produce data and information that--
    (1) Allow, at kindergarten entry, for a valid and reliable 
interpretation of each child's learning and development across the 
essential domains of school readiness (as defined in this notice) with 
each domain making a significant

[[Page 5340]]

contribution to the overall comprehensive score;
    (2) Can be reported to and easily understood and used by various 
stakeholders, including families, teachers, administrators, early 
learning providers, and policy-makers, consistent with requirements of 
Federal, State, and local privacy laws; and
    (3) Can be incorporated into a State's longitudinal data system 
(SLDS) and a State's early learning data system (if it is separate from 
an SLDS), consistent with requirements of Federal, State, and local 
privacy laws.
    (e) Compatibility. The KEA must use approaches to assessment design 
and implementation (e.g., use of technology, assessment administration, 
scoring, and reporting) that facilitate the integration of the KEA with 
a State's student assessment system, including a State's comprehensive 
early learning assessment system (as defined in this notice) for each 
State included in an application in which a comprehensive early 
learning assessment system exists.

Proposed Priority 2--Early Learning Collaborative Efforts Among States

    Background: The Department values the benefits derived from States 
working together and, therefore, proposes collaborative efforts among 
States as a priority for the development or enhancement of KEAs. As 
noted earlier, States are working together in consortia under the RTTA 
program to develop new assessment systems that measure student 
knowledge and skills against a common set of college- and career-ready 
standards in English language arts and mathematics. States are also 
collaborating under the GSEG program to develop companion alternate 
assessments based on alternate achievement standards. With assistance 
from the EAG program, States also are working together to develop ELP 
assessments aligned with common ELP standards.
    Similarly, because of the complexity of developing or enhancing a 
KEA, States in collaboration may yield better results than those 
undertaking this effort alone. States working in collaboration can 
build on each State's expertise and experience and generate 
efficiencies in development, costs, implementation, and uses of 
results.
    In addition, data produced by a KEA administered across multiple 
States are more meaningful when the early learning and development 
standards (as defined in this notice) are the same across States, and 
can provide a common framework for understanding the level of 
children's learning and development at kindergarten entry.
    The Department is considering using this priority as a competitive 
preference priority in the FY 2013 competition. An applicant would 
receive a higher number of points based on the extent to which it 
includes a greater number of States in the consortium, with three to 
four States representing a low number of States, five to seven States 
representing an intermediate number of States, and eight or more States 
representing a high number of States.
    Proposed Priority 2: Early Learning Collaborative Efforts Among 
States.
    To meet this priority, an applicant must--
    (a) Include a minimum of three States in the consortium and propose 
developing or enhancing a common KEA for those States. An applicant 
will receive a greater number of points under this priority based on 
the extent to which it includes a greater number of States in its 
consortium;
    (b) Adopt or propose a plan for all States in the consortium to 
adopt a set of early learning and development standards (as defined in 
this notice) that, for at least the year prior to kindergarten entry, 
are substantially identical across all States in the consortium;
    (c) Adopt or propose a plan for all States in the consortium to 
adopt the common KEA; and
    (d) Provide in the memorandum of understanding or other binding 
agreement executed by each State in the consortium an assurance that, 
as a condition of remaining in the consortium, the State will, no later 
than the end of the project period, adopt the common KEA developed 
under this priority and the set of early learning and development 
standards (as defined in this notice) upon which the KEA is based.
    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, the Department 
considers 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)).
    Proposed Requirement:
    Background: The proposed requirement is designed to support the 
transition to ongoing operational administration of assessments 
developed under the EAG program.
    We would add this proposed requirement to the existing requirements 
for the EAG program established on April 19, 2011 (76 FR 21986). We 
list the existing requirements below to provide context and make 
commenting on the proposed requirement easier. We invite comment on the 
proposed requirement only. The existing requirements are that an 
eligible applicant awarded a grant under this program must:
    (a) Evaluate the validity, reliability, and fairness of any 
assessments or other assessment-related instruments developed under a 
grant from this competition, and make available documentation of 
evaluations of technical quality through formal mechanisms (e.g., peer-
reviewed journals) and informal mechanisms (e.g., newsletters), both in 
print and electronically;
    (b) Actively participate in any applicable technical assistance 
activities conducted or facilitated by the Department or its designees, 
coordinate with the RTTA program in the development of assessments 
under this program, and participate in other activities as determined 
by the Department;
    (c) Develop a strategy to make student-level data that result from 
any assessments or other assessment-related instruments developed under 
a grant from this competition available on an ongoing basis for 
research, including for prospective linking, validity, and program 
improvement studies; \7\
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    \7\ Eligible applicants awarded a grant under this program must 
comply with the Family Educational Rights and Privacy Act (FERPA) 
and 34 CFR Part 99, as well as State and local requirements 
regarding privacy.
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    (d) Ensure that any assessments or other assessment-related 
instruments developed under a grant from this competition will be 
operational (ready for large-scale administration) at the end of the 
project period;
    (e) Ensure that funds awarded under the EAG program are not used to 
support the development of standards,

[[Page 5341]]

such as under the English language proficiency assessment system 
priority or any other priority;
    (f) Maximize the interoperability of any assessments and other 
assessment-related instruments developed with funds from this 
competition across technology platforms and the ability for States to 
move their assessments from one technology platform to another by doing 
the following, as applicable, for any assessments developed with funds 
from this competition by--
    (1) Developing all assessment items in accordance with an industry-
recognized open-licensed interoperability standard that is approved by 
the Department during the grant period, without non-standard extensions 
or additions; and
    (2) Producing all student-level data in a manner consistent with an 
industry-recognized open-licensed interoperability standard that is 
approved by the Department during the grant period;
    (g) Unless otherwise protected by law or agreement as proprietary 
information, make any assessment content (i.e., assessments and 
assessment items) and other assessment-related instruments developed 
with funds from this competition freely available to States, technology 
platform providers, and others that request it for purposes of 
administering assessments, provided that those parties receiving 
assessment content comply with consortium or State requirements for 
test or item security; and
    (h) For any assessments and other assessment-related instruments 
developed with funds from this competition, use technology to the 
maximum extent appropriate to develop, administer, and score the 
assessments and report results.
    Proposed Requirement:
    The Assistant Secretary proposes the following requirement for this 
program. The Department may apply this requirement in any year in which 
this program is in effect:
    (i) Adopt and implement any assessments, other assessment-related 
instruments developed or enhanced under the proposed project, and any 
standards upon which they are based. In addition, if the applicant 
State applies as, or on behalf of a consortium of States, it must 
provide in any memorandum of understanding or other binding agreement 
executed by each State in the consortium an assurance that, to remain 
in the consortium, the State will adopt and implement any assessments 
or other assessment-related instruments developed or enhanced under the 
proposed project and any standards upon which they are based by the end 
of the project period.
    Proposed Definitions:
    Background:
    Several important terms associated with the priorities, 
requirements, definitions, and selection criteria proposed in this 
notice are not defined in the EAG statute. We would add the proposed 
definitions to the existing definitions for the EAG program established 
on April 19, 2011 (76 FR 21986), though we are proposing to modify the 
definition of ``English learner'' established in 2011 in order to 
broaden the definition to include young children.
    Proposed Definitions:
    The Assistant Secretary proposes definitions for the EAG program. 
The Department may apply one or more of these new definitions, and any 
previously established definitions, in any year in which this program 
is in effect.
    Comprehensive early learning assessment system means a coordinated 
and comprehensive system of multiple assessments, each of which is 
valid and reliable for its specified purpose and for the population 
with which it will be used, that organizes information about the 
process and context of young children's learning and development in 
order to help teachers make informed instructional and programmatic 
decisions and that conforms with the recommendations of the National 
Research Council report on early childhood assessments \8\ by 
including, at a minimum: (a) Screening measures (as defined in this 
notice); (b) formative assessments; (c) measures of environmental 
quality (as defined in this notice); (d) measures of the quality of 
adult-child interactions (as defined in this notice); and (e) a 
kindergarten entry assessment (KEA).
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    \8\ National Research Council (2008). Early Childhood 
Assessment: Why, What, and How. Committee on Developmental Outcomes 
and Assessments for Young Children, C.E. Snow and S.B. Van Hemel, 
Editors. Board on Children, Youth, and Families, Board on Testing 
and Assessment, Division of Behavioral and Social Sciences and 
Education. Washington, DC: The National Academies Press. Available 
at www.nap.edu/catalog.php?record_id=12446.
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    Early learning and development standards means a set of 
expectations, guidelines, or developmental milestones that--
    (a) Describe what all children from birth to kindergarten entry 
should know and be able to do and their dispositions toward learning;
    (b) Are appropriate for each age group (e.g., infants, toddlers, 
and preschoolers); for English learners; and for children with 
disabilities or developmental delays;
    (c) Cover all essential domains of school readiness (as defined in 
this notice);
    (d) Are universally designed and developmentally, culturally, and 
linguistically appropriate; and
    (e) Are aligned with the State's K-3 academic standards in, at a 
minimum, early literacy and mathematics.
    English learner means a child, including a child aged three and 
younger, who is an English learner consistent with the definition of a 
child who is ``limited English proficient,'' as applicable, in section 
9101(25) of the Elementary and Secondary Education Act of 1965, as 
amended.
    Essential domains of school readiness means the domains of language 
and literacy development, cognition and general knowledge (including 
early mathematics and early scientific development), approaches toward 
learning, physical well-being and motor development (including adaptive 
skills), and social and emotional development.
    Formative assessment (also known as a classroom-based or ongoing 
assessment) means assessment questions, tools, and processes--
    (a) That are--
    (1) Specifically designed to monitor children's progress;
    (2) Valid and reliable for their intended purposes and their target 
populations; and
    (3) Linked directly to the curriculum; and
    (b) The results of which are used to guide and improve 
instructional practices.
    Measures of environmental quality means valid and reliable 
indicators of the overall quality of the early learning environment.
    Measures of the quality of adult-child interactions means the 
measures obtained through valid and reliable processes for observing 
how teachers and caregivers interact with children, where such 
processes are designed to promote child learning and to identify 
strengths and areas for improvement for early learning professionals.
    Screening measures means age and developmentally appropriate, 
valid, and reliable instruments that are used to identify children who 
may need follow-up services to address developmental, learning, or 
health needs in, at a minimum, the areas of physical health, behavioral 
health, oral health, child development, vision, and hearing.
    Proposed Selection Criteria:
    Background: The Department intends that the selection criteria used 
for competitions for EAG funds will ensure

[[Page 5342]]

that EAG projects address the most critical needs of education. The 
Department also expects that the selection criteria used for 
competitions for EAG funds will ensure that any assessments funded 
under this program will be of high technical quality. We established 
selection criteria for the EAG program on April 19, 2011 (76 FR 21986), 
and April 30, 2012 (77 FR 25470). The 2011 selection criteria addressed 
the assessment design and the assessment development plan; however, 
those criteria are not appropriate for entry assessments within a KEA. 
Therefore, we are proposing two new selection criteria that address 
similar issues but with a focus on kindergarten children.
    The proposed selection criteria (h) and (i) would be used in 
combination with the selection criteria that have already been 
established. The Department notes that the 2011 assessment design 
selection criterion (b) is inconsistent with both the proposed 
kindergarten entry assessment design criterion (h) and the purposes of 
the proposed KEA priority, and the Department does not intend to use 
selection criterion (b) with the proposed KEA priority.
    The Department also notes that the 2011 assessment development plan 
selection criterion (c) is inconsistent with both the proposed 
kindergarten entry assessment development plan selection criterion (i) 
and the purposes of the proposed KEA priority, and the Department does 
not intend to use the 2011 selection criterion (c) with the proposed 
KEA priority.
    We list the existing selection criteria below to provide context 
and to make commenting on the proposed selection criteria easier. We 
invite comments on the proposed selection criteria only.
    The existing selection criteria are:
    (a) Theory of action. The Secretary reviews each application to 
determine the extent to which the eligible applicant's theory of action 
is logical, coherent, and credible, and will result in improved student 
outcomes. In determining the extent to which the theory of action has 
these attributes, we will consider the description of, and rationale 
for--
    (1) How the assessment results will be used (e.g., at the State, 
local educational agency, school, classroom, and student levels);
    (2) How the assessments and assessment results will be incorporated 
into coherent educational systems (i.e., systems that include 
standards, assessments, curriculum, instruction, and professional 
development) of the State(s) participating in the grant; and
    (3) How those educational systems as a whole will improve student 
achievement.
    (b) Assessment design. The Secretary reviews each application to 
determine the extent to which the design of the eligible applicant's 
proposed assessments is innovative, feasible, and consistent with the 
theory of action. In determining the extent to which the design has 
these attributes, we will consider--
    (1) The number and types of assessments, as appropriate (e.g., 
diagnostic assessments, summative assessments);
    (2) How the assessments will measure student knowledge and skills 
against the full range of the relevant standards, including the 
standards against which student achievement has traditionally been 
difficult to measure, provide an accurate measure of student 
proficiency on those standards, including for students who are high- 
and low-performing in academic areas, and provide an accurate measure 
of student progress in the relevant area over a full academic year;
    (3) How the assessments will produce the required student 
performance data, as described in the priority;
    (4) How and when during the academic year different types of 
student data will be available to inform and guide instruction, 
interventions, and professional development;
    (5) The types of data that will be produced by the assessments, 
which must include student achievement data and other data specified in 
the relevant priority;
    (6) The uses of the data that will be produced by the assessments, 
including (but not limited to)--
    (i) Determining individual student achievement and student 
progress; determining, as appropriate and as one of multiple measures, 
individual principal and teacher effectiveness, if applicable; and 
professional development and support needs;
    (ii) Informing teaching, learning, and program improvement; and
    (7) The frequency and timing of administration of the assessments, 
and the rationale for these;
    (8) The number and types of items (e.g., performance tasks, 
selected responses, observational rating, brief or extended constructed 
responses) and the distribution of item types within the assessments, 
including the extent to which the items will be varied and elicit 
complex student demonstrations or applications of knowledge, skills, 
and approaches to learning, as appropriate (descriptions should include 
a concrete example of each item type proposed); and the rationale for 
using these item types and their distributions;
    (9) The assessments' administration mode (e.g., paper-and-pencil, 
teacher rating, computer-based, or other electronic device), and the 
rationale for the mode;
    (10) The methods for scoring student performance on the 
assessments, the estimated turnaround times for scoring, and the 
rationale for these; and
    (11) The reports that will be produced based on the assessments, 
and for each report: the key data it will present; its intended use; 
target audience (e.g., students, parents, teachers, administrators, 
policymakers); and its presentation in an understandable and uniform 
format and, to the extent practicable, in a language that parents can 
understand.
    (c) Assessment development plan. The Secretary reviews each 
application to determine the extent to which the eligible applicant's 
plan for developing the proposed assessments will ensure that the 
assessments are ready by the end of the grant period for wide-scale 
administration in a manner that is timely, cost-effective, and 
consistent with the proposed design and incorporates a process for 
ongoing feedback and improvement. In determining the extent to which 
the assessment development plan has these attributes, the Department 
will consider--
    (1)(i) The approaches for developing assessment items (e.g., 
evidence-centered design, universal design) and the rationale for using 
those approaches; and the development phases and processes to be 
implemented consistent with the approaches; and
    (ii) The types of personnel (e.g., practitioners, content experts, 
assessment experts, experts in assessing English learners, linguists, 
experts in second language acquisition, experts in assessing students 
with disabilities, psychometricians, cognitive scientists, institution 
of higher education representatives, experts on career readiness 
standards, and other key stakeholders) involved in each development 
phase and process;
    (2) The approach and strategy for designing and developing 
accommodations, accommodation policies, and methods for standardizing 
the use of those accommodations for students with disabilities;
    (3) The approach and strategy for ensuring scalable, accurate, and 
consistent scoring of items, including the approach and moderation 
system for any human-scored items and the extent to which teachers are 
trained and

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involved in the administration and scoring of assessments;
    (4) The approach and strategy for developing the reporting system; 
and
    (5) The overall approach to quality control and the strategy for 
field-testing assessment items, accommodations, scoring systems, and 
reporting systems, including, with respect to assessment items and 
accommodations, the use of representative sampling of all types of 
student populations, taking into particular account high- and low-
performing students, different types of English learners (e.g., 
recently arrived English learners, former English learners, migratory 
English learners, and English learners with disabilities), and students 
with disabilities.
    (d) Research and evaluation. The Secretary reviews each application 
to determine the extent to which the eligible applicant's research and 
evaluation plan will ensure that the assessments developed are valid, 
reliable, and fair for their intended purposes. In determining the 
extent to which the research and evaluation plan has these attributes, 
we will consider--
    (1) The plan for identifying and employing psychometric techniques 
suitable for verifying, as appropriate to each assessment, its 
construct, consequential, and predictive validity; external validity; 
reliability; fairness; precision across the full performance continuum; 
and comparability within and across grade levels; and
    (2) The plan for determining whether the assessments are being 
implemented as designed and the theory of action is being realized, 
including whether the intended effects on individuals and institutions 
are being achieved.
    (e) Professional capacity and outreach. The Secretary reviews each 
application to determine the extent to which the eligible applicant's 
plan for implementing the proposed assessments is feasible, cost-
effective, and consistent with the theory of action. In determining the 
extent to which the implementation plan has these attributes, we will 
consider--
    (1) The plan for supporting teachers and administrators in 
implementing the assessments and for developing, in an ongoing manner, 
their professional capacity to use the assessments and results to 
inform and improve instructional practice; and
    (2) The strategy and plan for informing the public and key 
stakeholders (including teachers, administrators, families, 
legislators, and policymakers) in each State or in each member State 
within a consortium about the assessments and for building support from 
the public and those stakeholders.
    (f) Technology approach. The Secretary reviews each application to 
determine the extent to which the eligible applicant would use 
technology effectively to improve the quality, accessibility, cost-
effectiveness, and efficiency of the proposed assessments. In 
determining the extent to which the eligible applicant is using 
technology effectively, we will consider--
    (1) The description of, and rationale for, the ways in which 
technology will be used in assessment design, development, 
administration, scoring, and reporting; the types of technology to be 
used (including whether the technology is existing and commercially 
available or is being newly developed); and how other States or 
organizations can re-use in a cost-effective manner any technology 
platforms and technology components developed under this grant; and
    (2) How technology-related implementation or deployment barriers 
will be addressed (e.g., issues relating to local access to internet-
based assessments).
    (g) Project management. The Secretary reviews each application to 
determine the extent to which the eligible applicant's project 
management plan will result in implementation of the proposed 
assessments on time, within budget, and in a manner that is financially 
sustainable over time. In determining the extent to which the project 
management plan has these attributes, we will consider--
    (1) The project workplan and timeline, including, for each key 
deliverable (e.g., necessary procurements and any needed approvals for 
human subjects research, assessment, scoring and moderation system, 
professional development activities), the major milestones, deadlines, 
and entities responsible for execution;
    (2) The approach to identifying, managing, and mitigating risks 
associated with the project;
    (3) The extent to which the eligible applicant's budget is adequate 
to support the development of assessments that meet the requirements of 
the priority and includes costs that are reasonable in relation to the 
objectives, design, and significance of the proposed project and the 
number of students to be served;
    (4) For each applicant State or for each member State within a 
consortium, the estimated costs for the ongoing administration, 
maintenance, and enhancement of the operational assessments after the 
end of the project period for the grant and a plan for how the State 
will fund the assessments over time (including by allocating to the 
assessments funds for existing State or local assessments that will be 
replaced by the new assessments); and
    (5) The quality and commitment of the personnel who will carry out 
the proposed project, including the qualifications, relevant training, 
and experience of the project director and other key project personnel, 
and the extent to which the time commitments of the project director 
and other key project personnel are appropriate and adequate to meet 
the objectives of the proposed project.
    Proposed Selection Criteria:
    The Assistant Secretary proposes the following selection criteria 
for evaluating an application under this program. We may apply these 
criteria or any of the existing selection criteria in any year in which 
this program is in effect. In the notice inviting applications and the 
application package, the Department will announce the selection 
criteria to be applied and the maximum possible points assigned to each 
criterion.
    (h) Kindergarten entry assessment design.
    The Secretary reviews each application to determine the extent to 
which the design of the eligible applicant's proposed assessment is 
innovative, feasible, and consistent with the theory of action. In 
determining the extent to which the design has these attributes, the 
Department will consider--
    (1) How the assessment will measure child performance and 
development against early learning and development standards (as 
defined in this notice);
    (2) The steps proposed for ensuring that the assessment is aligned 
with the specific early learning and development standards on which the 
assessment is based;
    (3) The extent to which data from the assessment can be 
incorporated into a State's longitudinal data system (SLDS) and a 
State's early learning data system (if it is separate from an SLDS) 
through the use of or connection to common data elements and 
definitions, such as the Common Education Data Standards (https://ceds.ed.gov/), consistent with requirements of Federal, State, and 
local privacy laws;
    (4) The intended uses of the data to be generated by the 
assessment, which must include, but need not be limited to--
    (i) Determining the level of individual child learning and 
development;
    (ii) Identifying teacher professional development and support 
needs;

[[Page 5344]]

    (iii) Informing teaching, learning, and program improvement; and
    (iv) Engaging families in the early learning of their children;
    (5) The number and types of items (e.g., performance tasks, 
selected responses, observational ratings) and the distribution of item 
types within the assessment, including the variation of the items and 
the rationale for using these item types and their distributions;
    (6) The assessment's administration mode(s) (e.g., direct, 
observation, or administered using an electronic device), and the 
rationale for the mode(s);
    (7) The methods for scoring child performance on the assessments, 
the estimated turnaround times for scoring, and the rationale(s) for 
these;
    (8) The applicant's plan to set levels of performance for the 
assessment, where the levels of performance encompass descriptors of 
what a child knows and is able to do for each level, and for how the 
applicant will meaningfully engage and solicit stakeholder input on the 
development of levels of performance that are valid and reliable for 
children's learning and development; and
    (9) The reports and interpretation guides that will be produced 
based on the assessments, and for each report and interpretation guide: 
the key data it will present; its intended use; its target audience 
(e.g., families, teachers, administrators, policymakers, and other 
stakeholders); and how its presentation will be in an understandable 
and uniform format and, to the extent practicable, in a language that 
families can understand.
    (i) Kindergarten entry assessment development plan. The Secretary 
reviews each application to determine the extent to which the eligible 
applicant's plan for developing the proposed KEA will ensure that the 
assessments are ready by the end of the grant period for wide-scale 
administration in a manner that is timely, cost-effective, and 
consistent with the proposed design and incorporates a process for 
ongoing feedback and improvement. In determining the extent to which 
the assessment development plan has these attributes, the Department 
will consider--
    (1)(i) The approaches for developing assessment items (e.g., 
evidence-centered design, universal design), the rationale for using 
those approaches, and the development phases and processes to be 
implemented consistent with the approaches;
    (ii) The types of personnel involved in each development phase and 
process (e.g., practitioners, experts in early learning and 
development, experts in the assessment of young children, content 
experts, assessment experts, experts in assessing children with 
disabilities or developmental delays and English learners, 
psychometricians, cognitive scientists, and other key stakeholders);
    (2) The approach and strategy for designing and developing 
accommodations, accommodation policies, and methods for standardizing 
the use of those accommodations for children with disabilities or 
developmental delays and English learners (as defined in this notice);
    (3) The approach and strategy for ensuring scalable, accurate, and 
consistent scoring of items, including the approach and moderation 
system for any items not scored by machine and the extent to which 
teachers are trained and involved in the administration and scoring of 
assessments;
    (4) The approach and strategy for developing the reporting system; 
and
    (5) The overall approach to quality control, maintaining the 
integrity of the assessment process, field-testing assessment items, 
accommodations, scoring systems, and reporting systems, including, with 
respect to assessment items and accommodations, the use of 
representative sampling of all types of child populations, taking into 
particular account the full range of learning and development across 
the essential domains of school readiness (as defined in this notice), 
and including children with disabilities or developmental delays and 
English learners (as defined in this notice).
    Final Priorities, Requirements, Definitions, and Selection 
Criteria:
    We will announce the final priorities, requirements, definitions, 
and selection criteria in a notice in the Federal Register. We will 
determine the final priorities, requirements, definitions, and 
selection criteria 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 the Department chooses to use these priorities, requirements, 
definitions, or selection criteria, we invite applications through a 
notice in the Federal Register.

Executive Order 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 set forth in 
the Executive Order.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    We have also reviewed this proposed regulatory action under 
Executive Order 13563, which supplements and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent 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

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    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these proposed priorities, requirements, 
definitions, and selection criteria only on a reasoned determination 
that their benefits would justify their costs. In choosing among 
alternative regulatory approaches, the Department selected those 
approaches that would 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 would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.
    The proposed priority for KEAs and the other proposed priority, 
along with the associated proposed requirement, definitions, and 
selection criteria, would benefit individual children by supporting the 
development or enhancement of KEAs that would provide educators with 
timely and useful information to guide individualized instruction for 
children at kindergarten entry and throughout the year. In addition, 
the resulting assessments would benefit educators, administrators, and 
other stakeholders by yielding information that can be used to target 
investments for the education systems serving children in the years 
before kindergarten. A KEA would also support the implementation of 
State reform efforts in the area of early learning.
    The proposed priority for early learning collaborative efforts 
among States would encourage States to work together on developing a 
common KEA rather than developing or using separate KEAs, thus pooling 
expertise and experience while also creating efficiencies, including 
cost-efficiencies. The priority would also help ensure that a KEA 
developed by a consortium is made available for use by multiple States. 
It also would support the collection of comparable data regarding the 
level of children's learning and development at kindergarten entry.
    The proposed selection criteria would help ensure that the 
assessments developed by grantees are of high quality, meet relevant 
technical standards, and align with other assessment work funded by 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 
regarding this program.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the 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 22, 2013.
Deborah S. Delisle,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2013-01567 Filed 1-24-13; 8:45 am]
BILLING CODE 4000-01-P