[Federal Register Volume 85, Number 5 (Wednesday, January 8, 2020)]
[Proposed Rules]
[Pages 853-856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28532]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2019-OESE-0147; CFDA Number: 84.368A]


Proposed Priorities--Competitive Grants for State Assessments

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

ACTION: Proposed priorities.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
proposes priorities under the Competitive Grants for State Assessments 
(CGSA) program. The Assistant Secretary may use one or more of these 
priorities for competitions in fiscal year (FY) 2020 and later years. 
We take this action to focus Federal financial assistance related to 
student assessments on innovative assessments. We intend the priorities 
to increase the number of States using flexibility under the Innovative 
Assessment Demonstration Authority (IADA) and to support high-quality 
work among those States that do so.

DATES: We must receive your comments on or before February 7, 2020.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. To ensure that we do not receive duplicate copies, 
please submit your comments only once. In addition, please include the 
Docket ID and the term ``Competitive Grants for State Assessments--
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 Regulations.gov'' in the Help section.
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about these proposed priorities, address 
them to the Office of Elementary and Secondary Education, Attention: 
Donald Peasley, Competitive Grants for State Assessment--Comments, U.S. 
Department of Education, 400 Maryland Avenue SW, Room 3W106, 
Washington, DC 20202-6132.
    Privacy Note: The Department of Education's (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: Donald Peasley, U.S. Department of 
Education, 400 Maryland Avenue, SW, Room 3W106, Washington, DC 20202. 
Telephone: (202) 453-7982. 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: 
    Invitation to Comment: We invite you to submit comments regarding 
the proposed priorities. To ensure that your comments have maximum 
effect in developing the notice of final priorities, we urge you to 
identify clearly the specific proposed priority that each comment 
addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866, 13563, and 13771 and their 
overall requirement of reducing regulatory burden that might result 
from these proposed priorities. Please let us know of any further ways 
we could reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about the proposed priorities by accessing regulations.gov. 
You may also inspect the comments in person in Room 3W106, 400 Maryland 
Avenue SW, Washington, DC, between the hours of 8:30 a.m. and 4:00 
p.m., Eastern time, Monday through Friday of each week except Federal 
holidays.
    Assistance to Individuals with Disabilities in Reviewing the 
Rulemaking Record: On request we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this document. 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 CGSA 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 1203(b)(1) of the Elementary and 
Secondary Education Act of 1965, as amended by the Every Student 
Succeeds Act (ESEA) (20 U.S.C. 6363(b)(1)).
    Proposed Priorities: This notice contains two proposed priorities.
    Background: The purpose of the CGSA program is to support States' 
efforts to improve the technical quality of their assessment systems--
both the quality of individual State assessments and the overall field 
of State assessments. To do so, we encourage States to develop new 
forms of, or formats for administering, test items or assessment 
designs.
    The Department is proposing these priorities to encourage State 
educational agencies (SEAs) to consider new approaches to their State 
assessment systems. These priorities would build

[[Page 854]]

on the flexibility in section 1204 of the ESEA, which establishes the 
Innovative Assessment Demonstration Authority (IADA). IADA provides an 
opportunity for an SEA to pilot a new and innovative approach to 
assessments by first implementing it in a subset of schools or LEAs. 
Students in those schools would take the innovative assessment in place 
of the statewide assessment and their results would be included in the 
State's accountability system. Over a period of five years, the SEA 
would scale up the innovative assessment to eventually replace the 
statewide assessment. These priorities would allow States to use CGSA 
funds to improve alignment with and support related work through the 
IADA.
    In 2018 and 2019, the Department published notices inviting 
applications (NIAs) for IADA and approved four SEAs through this 
authority. During the initial demonstration period (as defined in ESEA 
section 1204(b)(3) and 34 CFR 200.104(d)), up to seven SEAs may be 
approved for IADA. After the initial demonstration period, and upon 
meeting the requirements in ESEA section 1204(d), the Secretary may 
grant IADA flexibility to additional SEAs. The Department is proposing 
these priorities for the CGSA program to support SEAs planning to apply 
for the authority to implement IADA or SEAs currently implementing an 
approved IADA plan. Approval for a CGSA grant for those SEAs planning 
to apply for IADA does not imply or infer that the Department will 
approve that SEA to implement its IADA proposal. However, the 
Department believes that the work to plan for IADA will strengthen the 
State's assessment system, even if the SEA is not ultimately granted 
IADA flexibility.
    To the extent the Department uses the proposed priorities in this 
notice, the Department anticipates establishing project periods and 
budget ranges that may differ for applicants seeking CGSA funds to 
implement an IADA proposal as compared with those seeking CGSA funds to 
plan for an IADA proposal. The Department will establish specific 
project periods and budget ranges in a notice inviting applications. In 
particular, the Department anticipates that a planning grant might be 
available for a period of 12-18 months while an implementation grant 
might be available for 36-48 months. Since a planning grant is intended 
to provide support only during the preparation of an IADA proposal, 
this would give an SEA or consortium sufficient time to prepare an 
application for submission. Similarly, the Department anticipates that 
the budget request for a planning grant would be substantially lower 
than for an implementation grant, both because the project period would 
be shorter and because the work would be more targeted, preliminary, 
and smaller in scope.
    Each SEA seeking IADA approval must submit a separate IADA 
application consistent with 34 CFR 200.104 through 200.108 and the 
applicable IADA NIA announcing the availability of IADA to additional 
SEAs, and successfully complete the Department's separate review 
process for IADA applications. Currently, in addition to the four SEAs 
approved for IADA, SEAs have been invited to seek approval through a 
notice published in the Federal Register (84 FR 57709) on October 28, 
2019.
    Section 1203(b)(1)(A) of the ESEA identifies the six allowable uses 
of funds under CGSA. In brief, these uses include developing or 
improving assessments for English learners; developing or improving 
models to measure and assess student progress or student growth on 
assessments; developing or improving assessments for children with 
disabilities; allowing for collaboration with institutions of higher 
education or other organizations to improve the quality, validity, and 
reliability of State academic assessments; measuring student academic 
achievement using multiple measures of student academic achievement 
from multiple sources; and evaluating student academic achievement 
using comprehensive academic assessment instruments (such as 
performance and technology-based academic assessments, computer 
adaptive assessments, projects, or extended performance task 
assessments) that emphasize the mastery of standards and aligned 
competencies in a competency-based education model. An SEA, or 
consortium of SEAs, applying for funds under CGSA must describe in its 
application how it is meeting one or more of these six allowable uses 
of funds. Since an SEA has flexibility to request IADA with regard to 
any of the assessments required under ESEA section 1111(b)(2)(B)(v), 
including alternate assessments aligned with alternate academic 
achievement standards, and must ensure the inclusion of all students 
who take that assessment, including English learners and children with 
disabilities, an SEA could potentially use CGSA funds under any or all 
of the CGSA uses of funds in service of an IADA assessment. Further, 
the CGSA uses of funds related to using multiple measures of student 
academic achievement from multiple sources and evaluating student 
academic achievement through comprehensive academic assessments that 
emphasize a competency-based education model (section 1201(a)(2)(K) and 
(L) of the ESEA, as incorporated into CGSA by ESEA section 
1203(b)(1)(A)) are particularly aligned with the flexibility envisioned 
in IADA.
    Since all SEAs may apply for a CGSA grant, in any competition in 
which we use one or both of these priorities, we will also make funding 
opportunities available to an SEA that is not planning for or 
implementing IADA. For example, the Department may choose to use a 
priority from among the priorities established in the Department's 
Notice of Final Priorities--Enhanced Assessment Instruments published 
in the Federal Register on August 8, 2016 (81 FR 52341), which 
emphasized innovative assessment item types and design approaches, in 
keeping with CGSA uses of funds related to using multiple measures of 
student academic achievement from multiple sources and evaluating 
student academic achievement through comprehensive academic assessments 
that emphasize a competency-based education, among others.
    Proposed Priority 1--Implementing the Innovative Assessment 
Demonstration Authority (IADA).
    (a) Under this priority an SEA, or consortium of SEAs, must--
    (1) Be approved for IADA as of the date of its CGSA application. If 
applying as part of a consortium (or in partnership with other SEAs), 
each SEA must be approved for IADA as of the date of its CGSA 
application;
    (2) Be implementing IADA, consistent with all requirements of 
section 1204 of the ESEA and applicable regulations as of the date of 
its CGSA application. If applying for CGSA as part of a consortium (or 
in partnership with other SEAs), each SEA must individually meet this 
requirement;
    (3) Describe how the SEA will use CGSA funds to implement its 
approved IADA plan; and
    (4) Describe how the proposed project aligns with one or more of 
the CGSA statutory uses of funds in section 1201(a)(2)(C), (H), (I), 
(J), (K), or (L) of the ESEA and as required under section 
1203(b)(1)(A) of the ESEA.
    (b) Any competition that uses this priority must also include 
another priority under which any SEA may apply.
    Proposed Priority 2--Planning to Apply for the Innovative 
Assessment Demonstration Authority (IADA).
    (a) Under this priority, an SEA, or consortium of SEAs, must--

[[Page 855]]

    (1) Provide an assurance by an authorized representative that the 
SEA(s) intends to apply for flexibility under the IADA, when made 
available by the Department. If applying for CGSA as part of a 
consortium (or in partnership with other SEAs), each SEA must provide 
an assurance that it intends to apply for flexibility under the IADA;
    (2) If applying as a consortium of SEAs during the initial 
demonstration authority for IADA, not include more than four SEAs;
    (3) Describe its approach to innovative assessments in terms of the 
subjects and grades it anticipates addressing, the proposed assessment 
design, proposed item types (e.g., item prototypes), and other relevant 
features; and
    (4) Describe how the proposed projects align with one or more of 
the CGSA statutory uses of funds in section 1201(a)(2)(C), (H), (I), 
(J), (K), or (L) of the ESEA.
    (b) Any competition that uses this priority must also include 
another priority under which any SEA may apply.
    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)).
    Final Priorities: We will announce the final priorities in a notice 
in the Federal Register. We will determine the final priorities after 
considering responses to the proposed priorities and other information 
available to the Department. This document does not preclude us from 
proposing additional priorities, requirements, definitions, or 
selection criteria, subject to meeting applicable rulemaking 
requirements.
    Note: This document does not solicit applications. In any year in 
which we choose to use one or more of these priorities, we invite 
applications through a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) determines whether this regulatory action is ``significant'' and, 
therefore, subject to the requirements of the Executive order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
a ``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This proposed regulatory action is not a significant regulatory 
action subject to review by OMB under section 3(f) of Executive Order 
12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866, 
and that imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2020, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. However, Executive Order 
13771 does not apply to ``transfer rules'' that cause only income 
transfers between taxpayers and program beneficiaries, such as those 
regarding discretionary grant programs. Because the proposed priorities 
would be used in connection with one or more discretionary grant 
programs, Executive Order 13771 does not apply.
    We have also reviewed these proposed regulations under Executive 
Order 13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those 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 issue these proposed priorities only on a reasoned determination 
that their benefits would justify their costs. In choosing among 
alternative regulatory approaches, we selected those approaches that 
would maximize net benefits. Based on an analysis of anticipated costs 
and benefits, we believe that these proposed regulations are consistent 
with the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.

[[Page 856]]

Potential Costs and Benefits

    We have reviewed the proposed priorities in accordance with 
Executive Order 12866 and do not believe that these priorities would 
generate a considerable increase in burden. We believe any additional 
costs imposed by the proposed priorities would be negligible, primarily 
because they would create new opportunities to prioritize applicants 
that may have submitted applications regardless of these changes, 
changes that do not impose additional burden. Moreover, we believe any 
costs will be significantly outweighed by the potential benefits of 
making funding opportunities available that leverage maximum 
flexibility under ESEA and allow for State and local innovation. In 
addition, generally, participation in a discretionary grant program is 
entirely voluntary; as a result, these proposed priorities would not 
impose any particular burden except when an entity voluntarily elects 
to apply for a grant.
    Proposed Priority 1 would give the Department the opportunity to 
prioritize an applicant to the CGSA program that already has approval 
for IADA. We believe that this proposed priority could result in 
changes in the behavior of CGSA applicants. First, while SEAs with IADA 
approval could previously apply for CGSA (and one of the two SEAs then 
approved for IADA did apply for CGSA in 2019), we believe that SEAs 
that have IADA flexibility would be more likely to apply for CGSA if 
the Department includes Proposed Priority 1 since use of the priority 
would demonstrate particular Department interest in such projects. 
Second, we believe that the proposed priority would shift at least some 
of the Department's grants and prioritize a portion of CGSA funds for 
those SEAs with IADA approval. However, because this proposed priority 
would be used in concert with another priority or priorities such that 
all SEAs could apply for and receive CGSA funds, it would neither 
expand nor restrict the universe of eligible entities for any 
Department grant program. Since application submission and 
participation in our discretionary grant programs is voluntary, we do 
not think that it would be appropriate to characterize any increased 
participation in our grant competitions or differences in which 
entities receive awards as costs associated with this priority.
    Proposed Priority 2, which would give the Department the 
opportunity to prioritize an applicant to the CGSA program that plans 
to apply for IADA flexibility, would similarly not create costs or 
benefits, but may have the result of shifting at least some of the 
Department's grants among eligible entities. We believe that this 
proposed priority could result in changes in the behavior of 
applicants. First, while SEAs that may seek future IADA approval could 
previously have applied for CGSA in 2019, we believe that SEAs that are 
interested in IADA flexibility would be more likely to apply for CGSA 
under Proposed Priority 2 since use of the priority would demonstrate 
particular Department interest in such projects. Second, we believe 
that the proposed priority could shift at least some of the 
Department's grants among eligible entities. However, as with Proposed 
Priority 1, because this proposed priority would be used in concert 
with another priority or priorities such that all SEAs could apply for 
and receive CGSA funds, it would neither expand nor restrict the 
universe of eligible entities for any Department grant program. Again, 
since application submission and participation in our discretionary 
grant programs is voluntary, we do not think that it would be 
appropriate to characterize any increased participation or differences 
in which entities receive awards as costs associated with this 
priority.
    Both Proposed Priority 1 and Proposed Priority 2 may result in 
benefits in the form of increased innovation in State assessment.

Regulatory Flexibility Act Certification

    The Secretary certifies that this proposed regulatory action would 
not have a significant economic impact on a substantial number of small 
entities. The U.S. Small Business Administration Size Standards define 
proprietary institutions as small businesses if they are independently 
owned and operated, are not dominant in their field of operation, and 
have total annual revenue below $7,000,000. Nonprofit institutions are 
defined as small entities if they are independently owned and operated 
and not dominant in their field of operation. Public institutions are 
defined as small organizations if they are operated by a government 
overseeing a population below 50,000.
    Of the impacts we estimate accruing to grantees or eligible 
entities, all are voluntary and related mostly to an increase in the 
available support for meeting existing obligations to provide statewide 
student assessment. Therefore, we do not believe that the proposed 
priorities would significantly impact small entities beyond the 
potential for receiving additional support from their SEA should the 
SEA receive a competitive grant from the Department.

Paperwork Reduction Act

    The proposed priorities contain information collection requirements 
approved under OMB 1894-0006.
    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. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of the 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: December 31, 2019.
Frank T. Brogan,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2019-28532 Filed 1-7-20; 8:45 am]
 BILLING CODE 4000-01-P