[Federal Register Volume 85, Number 174 (Tuesday, September 8, 2020)]
[Notices]
[Pages 55439-55442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19741]


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DEPARTMENT OF EDUCATION

[Docket ID ED-2020-OPEPD-0096]


Administrative Priority and Definitions for Discretionary Grant 
Programs

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

ACTION: Proposed priority and definitions.

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SUMMARY: The Secretary of Education proposes to establish a priority 
and definitions for discretionary grant programs that would promote the 
use of the Department of Education's (the Department's) discretionary 
grants funds to support remote learning (as defined in this notice).

DATES: We must receive your comments on or before October 8, 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 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 ``Help.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about the proposed priority and 
definitions, address them to Kelly Terpak, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 4W312, Washington, DC 20202.

    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: Kelly Terpak, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 4W312, Washington, DC 20202. 
Telephone: (202) 205-5231. 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 priority and definitions. To ensure that your comments 
have maximum effect in developing the notice of final priority and 
definitions, we urge you to identify clearly the specific section of 
the proposed priority or definition 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 the proposed priority and definitions. 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 
our programs.
    During and after the comment period, you may inspect all public 
comments about the proposed priority and definitions by accessing 
Regulations.gov. Due to the novel coronavirus 2019 (COVID-19) pandemic, 
the Department buildings are currently not open to the public. However, 
upon reopening you may also inspect the comments in person in room 
4W312, 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 the proposed priority and definitions. 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.
    Program Authority: 20 U.S.C. 1221e-3.
    Proposed Priority: The Secretary proposes the following priority.

Building Capacity for Remote Learning

    Background:
    The novel coronavirus 2019 (COVID-19) pandemic resulted in 
elementary,

[[Page 55440]]

secondary, and post-secondary school closures across the country in 
school year 2019-2020, impacting almost 60 million elementary and 
secondary school students, and more than 20 million postsecondary 
students. These closures uncovered divides among schools with respect 
to their ability to leverage remote learning. Some schools were 
prepared to help their students continue learning by integrating a host 
of strategies such as streamlining content delivery, providing formal 
and informal opportunities for students to receive support and 
feedback, providing accessible materials, and providing every student 
access to a device and internet connections while protecting student 
privacy. But far too many schools were not prepared to offer these 
supports, and their students did not receive relevant and engaging 
content, ongoing feedback, or could not access online materials, 
disproportionately harming the education of lower income children.\1\ 
Concerns about significant potential learning losses persist moving 
into the 2020-2021 school year. For example, a recent analysis found 
that if in-person classes do not resume until January 2021, Hispanic, 
Black, and low income students will lose 9.2, 10.3, and 12.4 months of 
learning, respectively.\2\ These disparate student experiences 
highlight the importance of in person instruction, especially for 
certain populations of students, rethinking education in general, and 
the critical role remote learning plays as a part of regular 
instructional programming and as a crucial link that can allow high-
quality teaching and learning to continue when regular instruction is 
disrupted. As States, school districts, and schools work to ensure 
improved student outcomes and continued learning, students throughout 
the country must have access to high-quality remote learning to both 
ensure agile and responsive education systems and access to remote 
learning when it is the right educational option for a child. Educators 
also need training and support to help them to master remote 
instruction. Therefore, the Department is proposing a priority to build 
State and local capacity to support remote learning and instruction. 
The Secretary may choose to include the entire priority within a grant 
program or merely one or more of the priority's component parts. In 
addition, proposed component part (f) of the priority would only be 
used in conjunction with another component part of the priority.
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    \1\ Gross, B. and Alice O. (2020). Too Many Schools Leave 
Learning to Chance During the Pandemic. Center on Reinventing Public 
Education.
    \2\ Dorn, E., Hancock, B., Sarakatannis, J., and Viruleg, E. 
(2020). COVID-19 and student learning in the United States: The hurt 
could last a lifetime. McKinsey & Company.
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    Proposed Priority: Under this priority, an applicant must propose a 
project that is designed to address one or more of the following 
priority areas:
    (a) Adopting and supporting models that leverage technology (e.g., 
universal design for learning, competency-based education (as defined 
in this notice), or hybrid/blended learning) and provide high-quality 
digital learning content, applications, and tools.
    (b) Providing personalized and job-embedded professional learning 
to build the capacity of educators to effectively use technology to 
create remote learning experiences that advance student engagement and 
learning (e.g., synchronous and asynchronous professional learning, 
professional learning networks or communities, and coaching).
    (c) Providing access to any of the following, in particular to 
serve learners without access to such technologies: Reliable, high-
speed internet, learning devices, and software applications that meet 
all students' and educators' remote learning needs while inside the 
school building and in remote learning environments. These technology 
costs cannot exceed 10 percent of the overall costs for all activities 
of the project.
    (d) Developing performance-based assessments that promote 
competency-based education that can be delivered remotely or in-person 
to students and obtain valid and reliable results that accurately 
document students' skills (e.g., inquiry/game-based assessment or data 
visualization tools for monitoring ongoing learning).
    (e) Supporting the development of digital interoperable credentials 
(as defined in this notice) that make transparent the competencies 
achieved through remote learning experiences and allow students to 
access, control, and share their achievements across a variety of 
education and training processes (formal or informal, classroom-based, 
remote, or workplace-based). Information on these credentials must be 
publicly accessible using linked open data formats to ensure their 
transferability and the continuity of learning for students.
    (f) Providing high-quality remote learning or competency-based 
education specifically for one or more of the following student 
subgroups: Students from low-income families, students with 
disabilities, English learners, Native American students, homeless 
students, and students attending schools in rural areas.
    The remote learning environment must be accessible to individuals 
with disabilities in accordance with Section 504 of the Rehabilitation 
Act of 1973 and Title II of the Americans with Disabilities Act, as 
applicable. The remote learning environment must also provide 
appropriate remote learning language assistance services to English 
learners.
    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)).

Proposed Definitions

    Background:
    The Department proposes definitions for ``remote learning,'' 
``competency-based education,'' and ``interoperable credentials'' to 
ensure common understanding of the terms used in the proposed priority.
    Proposed Definitions:
    The Secretary proposes the following definitions for use in any 
Department discretionary grant competition in which the proposed 
priority is used:
    Competency-based education (CBE) (also called proficiency-based or 
mastery-based learning) means learning based on knowledge and skills 
that are transparent and measurable. Progression is based on 
demonstrated mastery of what students are expected to know (knowledge) 
and be able to do (skills), rather than seat time or age.
    Interoperable credentials are those credentials built using open 
standards so that they are shareable, verifiable, portable, and secure. 
The credentials describe the specific achievements, such as credential 
type, skill level, or other

[[Page 55441]]

information, using common, standardized frameworks so that the data are 
machine readable, exchangeable, and actionable across technology 
systems and, when appropriate, on the web. When credentials are 
interoperable, a full range of an individual's skills and achievements, 
earned through formal and informal learning experiences or workplace-
based training, can be collected together and verified, regardless of 
available technology systems, reducing challenges as individuals 
transition between education and employment.
    Remote learning means programming where at least part of the 
learning occurs away from the physical building in a manner that 
addresses a learner's educational needs. Remote learning may include 
online, hybrid/blended learning, or non-technology-based learning 
(e.g., lab kits, project supplies, paper packets).
    Final Priority and Definitions:
    We will announce the final priority and definitions in a document 
in the Federal Register. We will determine the final priority and 
definitions after considering responses to the proposed priority and 
definitions 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 the priority and definitions, we invite 
applications through a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined whether this 
regulatory action is ``significant'' and, therefore, subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This 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 significant 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 
priority and definitions would be used in connection with one or more 
discretionary grant programs, Executive Order 13771 does not apply.
    We have also reviewed this proposed regulatory action under 
Executive Order 13563, which supplements and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those 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 the proposed priority and definitions only on a reasoned 
determination that the benefits would justify the 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 the proposed priority and 
definitions are 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.

Potential Costs and Benefits

    The Department believes that this proposed regulatory action would 
not impose significant costs on eligible entities, whose participation 
in our programs is voluntary, and costs can generally be covered with 
grant funds. As a result, the proposed priority and definitions would 
not impose any particular burden except when an entity voluntarily 
elects to apply for a grant. The benefits of the proposed priority and 
definitions would outweigh any associated costs because they would help 
ensure that the Department's discretionary grant programs select high-
quality applicants to implement activities that are designed to address 
critical remote learning needs.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
priorities and definitions easier to understand, including answers to 
questions such as the following:

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     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make the 
proposed priority and definitions easier to understand, see the 
instructions in the ADDRESSES section.

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 
number of applications prepared and submitted annually for competitive 
grant competitions. Therefore, we do not believe that the proposed 
priority and definitions would significantly impact small entities 
beyond the potential for increasing the likelihood of their applying 
for, and receiving, competitive grants from the Department.

Paperwork Reduction Act

    The proposed priority and definitions do not contain any 
information collection requirements.
    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.

Betsy DeVos,
Secretary.
[FR Doc. 2020-19741 Filed 9-4-20; 8:45 am]
BILLING CODE 4000-01-P