[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Rules and Regulations]
[Pages 52341-52346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18530]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2016-OESE-0004; CFDA Number: 84.368A.]


Final Priorities--Enhanced Assessment Instruments

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

ACTION: Final priorities.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
announces priorities 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 for 
competitions using funds from fiscal year (FY) 2016 and later years. 
These priorities are designed to support projects to improve States' 
assessment systems.

DATES: These priorities are effective September 7, 2016.

FOR FURTHER INFORMATION CONTACT: Donald Peasley, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3E124, Washington, DC 20202. 
Telephone: (202) 453-7982 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: The purpose of the EAG program is to enhance 
the quality of assessment instruments and assessment systems used by 
States for measuring the academic achievement of elementary and 
secondary school students.
    Program Authority: Section 6112 of the Elementary and Secondary 
Education Act of 1965 (ESEA), as amended by the No Child Left Behind 
Act of 2001 (NCLB), and section 1203(b)(1) of the ESEA, as amended by 
the Every Student Succeeds Act (Pub. L. 114-95) (ESSA).
    We published a notice of proposed priorities for this program in 
the Federal Register on April 18, 2016 (81 FR 22550) (NPP). That notice 
contained background information and our reasons for proposing the 
particular priorities.
    Except for minor revisions, there are no differences between the 
proposed priorities and these final priorities.
    These priorities are for use in addition to those published in the 
2011 notice of final priorities, requirements, definitions, and 
selection criteria (76 FR 21985) (2011 NFP) and the 2013 notice of 
final priorities, requirement, definitions, and selection criteria for 
this program (78 FR 31343) (2013 NFP).
    Public Comment: In response to our invitation in the NPP, eight 
parties submitted comments on the proposed priorities.
    We group major issues according to subject. Generally, we do not 
address technical and other minor changes.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priorities since publication of the NPP follows.

General

    Comment: Five commenters expressed support for the proposed 
priorities and noted the potential for grants awarded under the EAG 
program to improve State assessment systems. Three commenters expressed 
views on how the Department should distribute awards across priorities 
under the EAG program. One commenter strongly recommended that Priority 
2 be designated as an absolute priority in the EAG competition.
    Discussion: We appreciate the support for these priorities and 
agree that projects funded under them will support States in 
continuously improving their assessment systems to measure college- and 
career-readiness. This notice establishes priorities that can be used 
in any future competition, but does not establish how those priorities 
are designated in any particular competition. For the competition 
funded with FY 2016 funds, as announced in the notice inviting 
applications published elsewhere in this issue of the Federal Register, 
Priorities 1, 2, and 3 will be competitive preference priorities. The 
grant application and competition process will determine the number and 
types of projects funded under each priority.
    Changes: None.
    Comment: One commenter encouraged the Department to consider 
requiring content developed under proposed projects to be made freely 
available to others. This commenter noted that, even if content is made 
publicly available, it is not always accessible due to the use of 
proprietary software or applications.
    Discussion: We recognize the benefit of sharing work developed 
under the EAG program to serve as models and resources for other 
States, which is why Priorities 1 and 2 require an applicant responding 
to them to provide a dissemination plan. Sharing resources and lessons 
learned from grantees is a key goal of the grant program.

[[Page 52342]]

    Additionally, the notice of final priorities, requirements, 
definitions, and selection criteria for this program published in the 
Federal Register on April 19, 2011 (76 FR 21985) (2011 NFP) includes a 
requirement that, unless otherwise protected by law or agreement as 
proprietary information, an eligible applicant awarded a grant under 
this program must 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 the purposes of 
administering assessments, provided that those parties receiving 
assessment content comply with consortium or State requirements for 
test or test item security.
    Further, as with any grant, and consistent with 2 CFR 200.315, the 
Department reserves a royalty-free, nonexclusive, and irrevocable right 
to reproduce, publish, or otherwise use, and to authorize others to 
use, for Federal government purposes, the copyright in any work 
developed under a grant (or contract under a grant) in this program, 
and any rights of copyright to which a grantee or contractor purchases 
ownership with grant support.
    As the Department has these tools available to require grantees to 
make publicly available work developed under the EAG program, we do not 
believe any related change to the priorities is necessary.
    Changes: None.
    Comment: One commenter encouraged the Department to explicitly 
advocate for innovative, efficient, accessible, and fair testing for 
English learners in each priority, including by: Including English 
language proficiency assessments in Priority 1; requiring grantees 
implementing projects under Priority 1 to include English learners and 
their families as a representative sample in any research and 
development activities and gather evidence that innovative item types 
are accessible to English learners; requiring projects under Priority 2 
to include representation from English learners, parents of English 
learners, and teachers of English learners. The commenter expressed 
support for the requirement in Priority 3 that SEAs ensure tests are 
fair for all students and particularly commended the reference to 
English learners. The commenter also recommended requiring States 
proposing projects under Priority 3 to ensure that tests are fully 
transparent to English learners and their parents and to solicit 
feedback on the usefulness of assessments from English learners and 
their parents.
    Discussion: The Department recognizes the unique needs of English 
learners and the importance of ensuring that they are included in State 
assessment systems and assessed fairly. Having an assessment system 
that validly, reliably, and fairly measures the academic achievement of 
all elementary and secondary school students is vital to providing 
necessary information to inform instructional decisions and program 
evaluation, and to improve outcomes for all students. These priorities 
are intended to benefit all students, including English learners and 
students with disabilities, by enhancing the quality of assessment 
instruments and systems used by States for measuring the academic 
achievement of all elementary and secondary school students.
    For example, paragraph (a)(2) of Priority 1 requires applicants to 
ensure the validity, reliability, and fairness of the assessments and 
the comparability of student data; to meet this requirement, applicants 
will need to address how they will evaluate the fairness of their 
innovative item types for all students, including English learners. The 
Department believes that strong assessment audits, as required under 
Priority 3, will ensure that tests are fully transparent to all 
students and their parents and will include mechanisms for soliciting 
feedback from all students and their parents, including English 
learners.
    Additionally, in the past, the Department has funded several 
projects that targeted improving the assessment of English language 
proficiency (see www2.ed.gov/programs/eag/awards.html for a complete 
listing of past awards made under this authority). Given that these 
grants are still active and the first English language proficiency 
assessments developed under these grants were administered for the 
first time in the 2015-2016 school year, the Department does not think 
it necessary to include a specific reference to English language 
proficiency assessments. Items for summative assessments in reading/
language arts, mathematics, and science are the focus of this 
competition.
    However, there is nothing that would preclude the submission of a 
proposal under these priorities that specifically addresses the 
assessment of English learners.
    Changes: None.
    Comment: None.
    Discussion: The Department recognizes the benefit of sharing work 
developed under the EAG program with other States, which is why 
Priorities 1 and 2 require an applicant responding to them to provide a 
dissemination plan. However, the NPP did not include information 
regarding the content of such a dissemination plan. The Department 
believes that it is important to clarify for applicants the 
expectations of such a dissemination plan.
    Changes: The Department added language to Priorities 1 and 2 to 
specify that applicants must propose dissemination plans to share 
lessons learned and best practices.

Priority 1--Developing Innovative Assessment Item Types and Design 
Approaches

    Comment: Two commenters proposed including additional innovative 
assessment item types in this priority. One commenter suggested that 
obtaining information on students' English language proficiency through 
a content assessment could be listed as an example of an innovation. 
Another commenter recommended that the Department include assessments 
that measure student behaviors and goals (e.g., persistence or 
dependability) in this priority, in addition to mastery of academic 
content.
    Discussion: While the Department included examples of new 
innovative item types, such as performance tasks, simulations, and 
interactive, multi-step, technology-rich items, applicants may propose 
projects to develop other kinds of innovative item types as long as 
they meet the requirements of the priority. As such, we do not include 
a comprehensive list of innovative item types or design approaches a 
State could choose to develop. The statutory authority for this program 
specifically references the assessment of academic achievement, and the 
assessment systems developed by States to meet the requirements under 
title I, part A of the ESEA must measure the academic achievement of 
students in, at a minimum, reading/language arts, mathematics, and 
science. As a result, the Department believes it would not be 
appropriate to exclusively focus on innovative assessments that focused 
on non-academic skills.
    Changes: None.
    Comment: One commenter suggested adding a requirement to this 
priority that applicants articulate a theory of action for how 
innovative assessment systems and design approaches will support deeper 
student learning.
    Discussion: The Department believes that innovative item types and 
modular assessment approaches allow students to gain valuable 
experience by demonstrating complex work and

[[Page 52343]]

critical thinking skills. Assessments can improve student learning by 
providing data that can support and inform instruction, particularly if 
the data are timely and targeted. However, the primary focus of the 
priority is developing new methods for measuring student knowledge and 
skills to determine college- and career-readiness. As such, the 
Department believes it is important for applicants to focus their 
proposals on the complex tasks of developing, evaluating, and 
implementing new, innovative item types or developing approaches to 
transforming traditional summative assessment forms into a series of 
modular assessment forms. The Department agrees with the commenter that 
developing a sound theory of action for any large research and 
development proposal in educational assessment is a good project 
planning tool, but does not believe it is necessary to explicitly make 
this a priority or requirement.
    Changes: None.
    Comment: One commenter recommended that the Department clarify the 
meaning of the term ``competency-based assessment'' to communicate that 
such an assessment supports competency-based determinations and is not 
a type of assessment.
    Discussion: The Department appreciates this recommendation, but 
believes that clarification of the term ``competency-based assessment'' 
is not needed in the priority itself. The priority indicates that 
innovative item types may include those item types that can support 
competency-based assessments. This term, also used in the President's 
Testing Action Plan (see www.ed.gov/news/press-releases/fact-sheet-testing-action-plan), is used to describe a system of assessments that 
allows students to demonstrate their learning throughout the school 
year and focuses on the application of skills and knowledge. The 
Department believes that innovative item types, including performance 
tasks, can be useful as part of a competency-based assessment. In 
addition, the Department believes that the term is recognized by 
experts in the field but that there may be variations in how it is 
applied and that proposals should define this type of assessment in the 
context of the proposed design and plan of work.
    Change: None.
    Comment: One commenter suggested that the design of technology-
based items, interactive tools, and user interfaces proposed in 
projects under this priority be based on a Principled Assessment Design 
framework that takes into account principles of universal design for 
learning.
    Discussion: The priority requires applicants to ensure the quality, 
validity, reliability, and fairness of the assessment or assessment 
items and comparability of student data. The Department acknowledges 
that universal design for learning is a nationally recognized method 
for taking into account the needs of all students when designing an 
assessment item, test, or system and that this method can help to 
promote fairness in assessment, and also notes that assessments 
administered to fulfill the requirements of title I, part A of the 
ESEA, recently reauthorized by the ESSA, must address universal design 
for learning.
    Changes: We revised this priority to include a reference to 
universal design for learning.

Priority 2--Improving Assessment Scoring and Score Reporting

    Comment: One commenter suggested that we require applicants to 
present a high-quality plan for leveraging other Federal funds to 
improve educators' assessment literacy and support parental engagement.
    Discussion: The Department agrees that assessment literacy and 
parent engagement in assessment systems are important goals. We also 
support States' efforts to carefully examine how Federal and other 
funding sources can best be leveraged to support their goals and to 
sustain work supported by time-limited grant funding. As part of the 
President's Testing Action Plan, the Department released a Dear 
Colleague Letter in February 2016 (see www2.ed.gov/admins/lead/account/saa/16-0002signedcsso222016ltr.pdf) that provides examples of how funds 
under titles I, II, III, and VI of the ESEA can be used to increase 
assessment literacy and parent engagement. However, in order to allow 
applicants flexibility to use appropriate funds to best meet their 
needs, we decline to prescribe that States use other Federal funding, 
in addition to any EAG funding awarded, for these purposes.
    Changes: None.
    Comment: One commenter recommended that assessment reporting be 
focused on ``stakeholders closest to students'' who can use the data to 
improve student learning.
    Discussion: The Department agrees that it is important for 
information on student performance to be made available to stakeholders 
close to students, such as educators and parents, in a timely fashion 
and in a format that provides actionable information to guide 
instruction and supports for students. In paragraph (b) of Priority 2, 
the Department requires that States include educators and parents in 
the development of score reports and paragraph (b)(1)(ii) focuses on 
educators' and parents' assessment literacy.
    Changes: None.
    Comment: Two commenters recommended that the Department require 
States to develop both enhanced score reporting templates and digital 
mechanisms for communicating assessment results.
    Discussion: The Department appreciates the support for this 
priority and agrees that it is important to improve the utility of 
information about student performance included in reports of assessment 
results. However, because we recognize that States have different goals 
and may already have initiatives underway to develop score reporting 
templates or digital mechanisms to communicate assessment results, we 
do not think it is appropriate to make both activities required under 
Priority 2.
    Changes: None.
    Comment: Two commenters provided several recommendations for how 
States could improve score reporting, particularly to meet parents' 
needs. For example, both commenters recommended that States share 
contextual information with parents through a cover letter accompanying 
the score report. One commenter also suggested that States: Include 
clear, actionable next steps for parents; ensure that information is 
communicated in parent-friendly language; prioritize the content of the 
score report to avoid overwhelming parents; seek parent feedback on 
score reporting materials; and ensure that reports are personalized and 
culturally sensitive.
    Discussion: The Department believes that these comments provide 
helpful examples of how an applicant might address needs related to 
score reporting and improve the utility of information about student 
performance included in score reports.
    Changes: We have revised this priority to include the commenters' 
suggestions regarding clear and actionable next steps for parents as an 
example.
    Comment: One commenter suggested that the Department require or 
strongly incentivize States to provide training for educators on data 
and using data to inform instruction.
    Discussion: The Department agrees that ensuring educators 
understand assessment data and can use that information to guide 
instruction and supports for students is an important part of making 
assessments worth

[[Page 52344]]

taking. The President's Testing Action Plan also highlights this as a 
key area of focus for States and districts. For this reason, we have 
included improving assessment literacy of educators and parents as one 
of the activities applicants could choose to include in projects 
proposed under this priority. However, because we recognize that States 
have different goals and may already have initiatives underway to 
support assessment literacy, we do not think it is appropriate to make 
this a required component of projects proposed under Priority 2.
    Changes: We have included in Priority 2 examples of how applicants 
might improve assessment literacy by providing training on test 
development and interpretation of test scores.

Priority 3--Inventory of State and Local Assessment Systems

    Comment: One commenter recommended that the Department remove 
Proposed Priority 3, given that States may use other Federal funds to 
conduct assessment audit activities.
    Discussion: The Department agrees that there may be opportunities 
for States and local educational agencies (LEAs) to leverage other 
Federal funds to conduct assessment audit activities beginning with FY 
2017, such as the State assessment grant funds authorized under section 
1201 of the ESEA, as amended by the ESSA, and the dedicated funds for 
assessment audit work authorized under section 1202 of the ESEA, as 
amended by the ESSA. For this reason, the Department has: limited the 
amount of grant funding an applicant could receive under this priority; 
required that projects under Priority 3 be no longer than 12 months; 
and required that projects include a longer-term plan for 
implementation using other funding sources. However, the Department 
believes that funding grants under this priority presents a valuable 
opportunity for applicants to lay the groundwork for activities in this 
area and begin the important work of evaluating all assessments 
administered in the State and its LEAs.
    Changes: None.
    Comment: One commenter suggested that the Department reframe the 
priority to focus on assessment systems and clarify that the goal of 
assessment inventories is to ensure that States' balanced systems of 
assessments work together to provide information to relevant 
stakeholders.
    Discussion: The Department believes that this priority, as written, 
already emphasizes the importance of analyzing entire assessment 
systems, rather than individual assessments. Assessment inventories 
proposed by applicants must include a review of all assessments at the 
Federal, State, and local levels and must include feedback from 
stakeholders on the entire assessment system.
    The Department agrees that assessments should provide clear and 
actionable information about students' knowledge and skills to 
stakeholders. However, consistent with the President's Testing Action 
plan, we believe that assessment inventories should not be focused only 
on whether assessments provide feedback to stakeholders, but should 
also ensure that tests are high quality, worth taking, time limited, 
fair for all students, and tied to improved student learning.
    Changes: None.
    Comment: One commenter proposed that the Department remove the 
requirement that State educational agencies (SEAs) review State and LEA 
activities related to test preparation to make sure those activities 
are focused on academic content and not on test-taking skills.
    Discussion: The Department believes that low-quality test 
preparation strategies are a poor use of students' time and that 
students perform best on high-quality assessments that measure critical 
thinking and complex skills when they have been exposed to strong 
instruction. As such, we maintain that ensuring that test preparation 
strategies and activities are focused on academic content instead of 
test-taking skills is an important part of reviewing and improving 
assessment systems.
    Changes: None.
    Comment: None.
    Discussion: In the NPP, paragraph (a)(2) of Priority 3 indicated 
that the purpose of assessments is to help schools meet their goals. 
Although we believe that assessments provide valuable information about 
school performance and can help schools to assess progress toward their 
goals, the Department believes that assessments have other purposes 
that are important for applicants to consider as they address Priority 
3.
    Changes: The Department adjusted the language in paragraph (a)(2) 
of Priority 3 to reflect that assessments are intended to measure 
student achievement and identify gaps in students' knowledge and 
skills.

Final Priorities

Priority 1--Developing Innovative Assessment Item Types and Design 
Approaches

    Under this priority, SEAs must:
    (a) Develop, evaluate, and implement new, innovative item types for 
use in summative assessments in reading/language arts, mathematics, or 
science;
    (1) Development of innovative item types under paragraph (a) may 
include, for example, performance tasks; simulations; or interactive, 
multi-step, technology-rich items that can support competency-based 
assessments or portfolio projects;
    (2) Projects under this priority must be designed to develop new 
methods for collecting evidence about a student's knowledge and 
abilities and ensure the quality, validity, reliability, and fairness 
(such as by incorporating principles of universal design for learning) 
of the assessment and comparability of student data; or
    (b) Develop new approaches to transform traditional, end-of-year 
summative assessment forms with many items into a series of modular 
assessment forms, each with fewer items than the end-of-year summative 
assessment.
    (1) To respond to paragraph (b), applicants must develop modular 
assessment approaches which can be used to provide timely feedback to 
educators and parents as well as be combined to provide a valid, 
reliable, and fair summative assessment of individual students.
    (c) Applicants proposing projects under either paragraph (a) or (b) 
must provide a dissemination plan to share lessons learned and best 
practices such that their projects can serve as models and resources 
that can be shared with other States.

Priority 2--Improving Assessment Scoring and Score Reporting

    Under this priority, SEAs must:
    (a) Develop innovative tools that leverage technology to score 
assessments;
    (1) To respond to paragraph (a), applicants must propose projects 
to reduce the time it takes to provide test results to educators, 
parents, and students and to make it more cost-effective to include 
non-multiple choice items on assessments. These innovative tools must 
improve automated scoring of student assessments, in particular non-
multiple choice items in reading/language arts, mathematics, or 
science; or
    (b) Propose projects, in consultation with organizations 
representing parents (including parents of English learners and parents 
of students with disabilities), students, teachers, counselors, and 
school administrators to address needs related to score reporting and 
improve the utility of information about student performance included 
in reports of assessment results and

[[Page 52345]]

provide better and more timely information to educators and parents;
    (1) To respond to paragraph (b), applicants must include one or 
more of the following in their projects:
    (i) Developing enhanced score reporting templates or digital 
mechanisms for communicating assessment results and their meaning (such 
as by providing clear and actionable next steps for parents);
    (ii) Improving the assessment literacy of educators and parents to 
help them interpret test results and to support teaching and learning 
in the classroom (such as by providing training on test development and 
interpretation of test scores); and
    (iii) Developing mechanisms for secure transmission and individual 
use of assessment results by teachers, students, and parents.
    (c) Applicants proposing projects under either paragraph (a) or (b) 
must provide a dissemination plan for sharing lessons learned and best 
practices such that their projects can serve as models and resources 
that can be shared with other States.

Priority 3--Inventory of State and Local Assessment Systems

    (a) Under this priority, SEAs must--
    (1) Review statewide and local assessments to ensure that each test 
is of high quality, maximizes instructional goals, has a clear purpose 
and utility, and is designed to help students demonstrate mastery of 
State standards;
    (2) Determine whether assessments are serving their intended 
purpose to measure student achievement and identify gaps in students' 
knowledge and skills and to eliminate redundant and unnecessary 
testing; and
    (3) Review State and LEA strategies and activities related to test 
preparation to make sure those strategies and activities are focused on 
academic content and not on test-taking skills.
    (b) To meet the requirements in paragraph (a), SEAs must ensure 
that tests, including statewide and local assessments are--
    (1) Worth taking, meaning that assessments are a component of good 
instruction and require students to perform the same kind of complex 
work they do in an effective classroom and the real world;
    (2) High quality, resulting in actionable, objective information 
about students' knowledge and skills, including by assessing the full 
range of relevant State standards, eliciting complex student 
demonstrations or applications of knowledge, providing an accurate 
measure of student achievement, and producing information that can be 
used to measure student growth accurately over time;
    (3) Time-limited, in order to balance instructional time and the 
need for assessments, for example, by eliminating duplicative 
assessments and assessments that incentivize low-quality test 
preparation strategies that consume valuable classroom time;
    (4) Fair for all students and used to support equity in educational 
opportunity by ensuring that accessibility features and accommodations 
level the playing field so tests accurately reflect what all students, 
including students with disabilities and English learners, know and can 
do;
    (5) Fully transparent to students and parents, so that States and 
districts can clearly explain to parents the purpose, the source of the 
requirement (if appropriate), and the use by teachers and schools, and 
provide feedback to parents and students on student performance; and
    (6) Tied to improving student learning as tools in the broader work 
of teaching and learning.
    (c) Approaches to assessment inventories under paragraph (a) must 
include:
    (1) Review of the schedule for administration of all assessments 
required at the Federal, State, and local levels;
    (2) Review of the purpose of, and legal authority for, 
administration of all assessments required at the Federal, State, and 
local levels; and
    (3) Feedback on the assessment system from stakeholders, which 
could include information on how teachers, principals, other school 
leaders, and administrators use assessment data to inform and 
differentiate instruction, how much time teachers spend on assessment 
preparation and administration, and the assessments that 
administrators, teachers, principals, other school leaders, parents, 
and students do and do not find useful.
    (d) Projects under this priority--
    (1) Must be no longer than 12 months;
    (2) Must include a longer-term project plan, understanding that, 
beginning with FY 2017, there may be dedicated Federal funds for 
assessment audit work as authorized under section 1202 of the ESEA, as 
amended by the ESSA, and understanding that States and LEAs may use 
other Federal funds, such as the State assessment grant funds, 
authorized under section 1201 of the ESEA, as amended by the ESSA, 
consistent with the purposes for those funds, to implement such plans; 
and
    (3) Must have a budget of $200,000 or less.
    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 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,

[[Page 52346]]

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.
    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.
    The priorities included in this notice would benefit students, 
parents, educators, administrators, and other stakeholders by improving 
the quality of State assessment instruments and systems. Priority 1 
will yield new, more authentic methods for collecting evidence about 
what students know and are able to do and provide educators with more 
individualized, easily integrated assessments that can support 
competency-based learning and other forms of personalized instruction. 
Priority 2 will allow for States to score non-multiple choice 
assessment items more quickly and at a lower cost and ensure that 
assessments provide timely, actionable feedback to students, parents, 
and educators. Priority 3 will encourage States to ensure that 
assessments are of high quality, maximize instructional goals, and have 
clear purpose and utility. Further, it will encourage States to 
eliminate unnecessary or redundant tests.
    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 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 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: August 1, 2016.
Ann Whalen,
Senior Advisor to the Secretary, Delegated the Duties of Assistant, 
Secretary for Elementary and Secondary Education.
[FR Doc. 2016-18530 Filed 8-5-16; 8:45 am]
 BILLING CODE 4000-01-P