[Federal Register Volume 86, Number 67 (Friday, April 9, 2021)]
[Notices]
[Pages 18519-18523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07291]


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DEPARTMENT OF EDUCATION

[Docket ID ED-2020-OESE-0199]


Proposed Priority and Definition--Teacher and School Leader 
Incentive Program

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

ACTION: Proposed priority and definition.

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SUMMARY: The Department of Education (Department) proposes to establish 
a priority and definition under the Teacher and School Leader Incentive 
Program (TSL), Assistance Listing Number 84.374A. We may use this 
priority and definition for competitions in fiscal year (FY) 2021 and 
later years. We propose a priority that clarifies the extent to which 
TSL-funded grant project activities are concentrated in High-Need 
Schools and a definition that clarifies what High-Need School means for 
the purposes of the TSL program.

DATES: We must receive your comments on or before May 10, 2021.

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 ``FAQ.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about the proposed priority and 
definitions, address them to Orman Feres, U.S. Department of Education, 
400 Maryland Avenue SW, Room 3C124, 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: Orman Feres, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3C124, Washington, DC 20202. 
Telephone: (202) 453-6921. 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 definition. To ensure that your comments have 
maximum effect in developing the notice of final priority and 
definition, we urge you to clearly identify 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 and 13563 and their overall 
requirement of reducing regulatory burden that might result from the 
proposed priority and definition. 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 definition 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 
3C124, 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.
    Purpose of Program: The purpose of TSL is to assist States, local 
educational agencies (LEAs), and nonprofit organizations to develop, 
implement, improve, or expand comprehensive performance-based 
compensation systems (PBCS) or human capital management systems (HCMS) 
for teachers, principals, and other school

[[Page 18520]]

leaders (especially for teachers, principals, and other school leaders 
in High-Need Schools who raise student academic achievement and close 
the achievement gap between high- and low-performing students). In 
addition, a portion of TSL funds may be used to study the 
effectiveness, fairness, quality, consistency, and reliability of PBCS 
or HCMS for teachers, principals, and other school leaders (educators).
    Program Authority: Section 2211-2213 of the Elementary and 
Secondary Education Act of 1965, as amended (ESEA), 20 U.S.C. 6631-
6633.
    Background: In making TSL awards, the Secretary is required to give 
priority to applicants that concentrate activities on teachers, 
principals, or other school leaders serving in high-need schools. The 
most recent FY 2020 TSL competition (85 FR 18928, April 3, 2020) 
highlighted the need for a definition and priority that would help 
better target the program to educators and students in High-Need 
Schools.\1\ Additionally, since passage of the Every Student Succeeds 
Act in 2015, the Department could not implement the TSL program 
statutory definition of High-Need School because that definition 
requires data that are unavailable. Therefore, we propose to establish 
a definition of High-Need School using Free and Reduced-Price Lunch 
(FRPL) data and a separate priority to require submission of data to 
demonstrate that the TSL project is concentrated in High-Need Schools.
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    \1\ The term that we propose to define is capitalized throughout 
this document.
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    Proposed Definition: ESEA section 2211(b)(2) defines High-Need 
Schools for the purposes of the TSL program as a school ``located in an 
area in which the percentage of students from families with incomes 
below the poverty line is 30 percent or more.'' The definition of 
poverty line in ESEA section 8101(41) requires the Department to use 
poverty line data gathered by the U.S. Census Bureau. However, the 
Department has determined that the school-level poverty-line data 
required by the definition of High-Need School in section 2211(b)(2) of 
the ESEA are unavailable; the U.S. Census Bureau reports these data 
only by LEA (school district). As such, to ensure that awards made 
under the TSL program still target the schools with high proportions of 
students from low-income families, rather than schools that are part of 
a broader LEA with high proportions of students from low-income 
families, the Department proposes to define High-Need School by using, 
in part, a similar poverty measure used for the FY 2010, 2012, and 2016 
Teacher Incentive Fund (TSL's predecessor program) competitions and the 
2017 and 2020 TSL competitions. In these prior competitions, a High-
Need School was defined as ``a school with 50 percent or more of its 
enrollment from low-income families, based on eligibility for free or 
reduced-price lunch subsidies under the Richard B. Russell National 
School Lunch Act, or other poverty measures that LEAs use consistent 
with ESEA section 1113(a)(5) (20 U.S.C. 6313(a)(5)).'' The definition 
proposed here would be substantially similar, but also include 
information about how the Community Eligibility Provision (CEP) of the 
Richard B. Russell National School Lunch Act could be used to meet the 
definition.
    Proposed Priority: Additionally, we propose one priority to clarify 
the requirements for demonstrating in an application that a project is 
concentrated on educators serving in High-Need Schools. This priority 
would clarify how future TSL applicants must demonstrate in their 
applications that proposed TSL-funded activities primarily target 
educators in High-Need Schools. The FY 2020 TSL competition drew one of 
its two absolute priorities directly from the program's statute, 
requiring eligible applicants to concentrate the proposed activities on 
teachers, principals, or other school leaders serving in High-Need 
Schools. The priority did not explain in detail what level of focus an 
applicant must demonstrate to show that TSL activities would 
``concentrate'' on educators in High-Need Schools. Some applicants 
proposed to serve all High-Need Schools. Other applicants did not 
distinguish which activities were for all participating schools and 
which activities were only for High-Need Schools. Further, the priority 
lacked clarity on what factors the Department considers when 
determining whether a school is High-Need. This lack of specificity led 
to numerous instances where documentation of High-Need School status 
was insufficient. Additionally, the lack of a consistent standard for a 
concentration on High-Need Schools limited the Department's ability to 
determine whether applicants had met the High-Need Schools absolute 
priority. It further resulted in several proposed projects being 
reviewed that did not appear to address the goal of focusing work 
primarily on High-Need Schools. Thus, we propose language that 
clarifies that concentrating the proposed activities means that at 
least the majority of schools intended to participate in TSL-funded 
project activities must be High-Need Schools. In the proposed priority, 
we further specify that applicants must provide evidence to document 
the High-Need status of the schools included in the proposed TSL-
assisted project. The proposed definition and priority would be used 
only in future TSL competitions and would not impact current TSL 
grantees or change priorities from the FY 2020 or other prior 
competitions.

Proposed Priority

    The Department is proposing the following priority.

High-Need Schools

    Under this priority, eligible applicants must concentrate the 
activities proposed to be assisted under the grant on teachers, 
principals, or other school leaders serving in High-Need Schools.
    In order to demonstrate that the TSL project is concentrated in 
High-Need Schools, the applicant must:
    (a) Provide the requested data in paragraph (c) below to 
demonstrate that at least the majority of the schools participating in 
the proposed project are High-Need Schools and describe how the TSL-
assisted grant activities are focused in those schools;
    (b) Include a list of all schools in which the proposed TSL-funded 
project would be implemented and indicate which schools are High-Need 
Schools; and
    (c) Provide the most recently available school-level data 
supporting each school's designation as a High-Need School.

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

[[Page 18521]]

application that meets the priority a preference over other 
applications (34 CFR 75.105(c)(1)).

Proposed Definition

    We propose the following definition for this program. We may apply 
this definition in any year in which the program is in effect.
    High-Need School means a school with 50 percent or more of its 
enrollment from low-income families as calculated using--
    (a) The number of children eligible for a free or reduced-price 
lunch under the National School Lunch Program (NSLP) (or, if an LEA 
does not participate in the NSLP, comparable data from another source 
such as a survey);
    (b) If an LEA has one or more schools that participate in the 
Community Eligibility Provision (CEP) of the NSLP, for any of its 
schools (i.e., CEP and non-CEP schools), the method in paragraph (a) of 
this definition or an alternative method approved by the Department; 
and
    (c) For middle and high schools, data from feeder schools that can 
establish that the middle or high school is a High-Need School under 
paragraph (a) or (b) of this definition.

Final Priority and Definition

    We will announce the final priority and definition in a document 
published in the Federal Register. We will determine the final priority 
and definition after considering responses to the proposed priority and 
definition 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 inviting applications in the Federal 
Register.

Executive Orders 12866 and 13563 Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine 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.
    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 are issuing the proposed priority and definition 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 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.
    In accordance with the 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.

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 definition would 
not impose any particular burden except when an entity voluntarily 
elects to apply for a grant. The benefits of the proposed priority and 
definition would outweigh any associated costs because they would help 
ensure that the Department's TSL grant program selects high-quality 
applicants to implement activities that are designed to address High-
Need Schools.

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 the proposed priority 
and definition easier to understand, including answers to questions 
such as the following:
     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

[[Page 18522]]

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 definition easier to understand, see the 
instructions in the ADDRESSES section.
    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.

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.
    The small entities that this proposed regulatory action would 
affect are school districts, nonprofit organizations, and for-profit 
organizations. 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 definition 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

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department provides the general public and Federal agencies 
with an opportunity to comment on proposed and continuing collections 
of information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    The proposed priority and definition contain an information 
collection requirement. Under the PRA the Department has submitted this 
priority and definition to OMB for its review.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of law, 
no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection 
instrument does not display a currently valid OMB control number.
    In the notice of final priority we will display the control number 
assigned by OMB to any information collection requirement proposed in 
this document and adopted in the notice of final priority.
    An FY 2021 competition would require applicants to complete and 
submit an application for Federal assistance using ED standard 
application forms. As a part of the application submission, 
respondents, who are LEAs, State educational agencies, the Bureau of 
Indian Education, nonprofit or for-profit organizations, or a 
combination thereof, will submit information demonstrating that each 
school included in the TSL-assisted project is a High-Need school. We 
estimate that for the FY 2021 TSL competition and later competitions, 
each applicant would spend approximately 87 hours of staff time to 
address the proposed priority and definition. Based on the number of 
applications the Department received in the FY 2020 TSL competition, we 
expect to receive approximately 100 applications for these funds. The 
total number of hours for all expected applicants to address this 
priority and definition is an estimated 8,700 hours.
    Around the same time that this notice is published, the Department 
will submit a copy of the TSL discretionary grant application using the 
proposed priority and definition and application to OMB for its review, 
which will provide the burden hours associated with each proposed 
regulatory requirement.
    We must receive your comments on the collection of information 
contained in this proposed priority and definition on or before May 10, 
2021, even if comments on the rest of these proposed priority and 
definition are due later than May 10, 2021. OMB is required to make a 
decision concerning the collection of information contained in this 
proposed priority and definition between 30 and 60 days after 
publication of this document in the Federal Register. Comments related 
to the information collection requirements for this proposed priority 
and definition must be submitted electronically through the Federal 
eRulemaking Portal at www.regulations.gov by selecting Docket ID number 
ED-2020-OESE-0199 or via postal mail, commercial delivery, or hand 
delivery by referencing the Docket ID number and the title of the 
information collection request at the top of your comment. Comments 
submitted by postal mail or delivery should be addressed to the PRA 
Coordinator of the Strategic Collections and Clearance Governance and 
Strategy Division, U.S. Department of Education, 400 Maryland Ave. SW, 
LBJ, Room 6W208D, Washington, DC 20202-8240.

    Note: The Office of Information and Regulatory Affairs in OMB 
and the Department review all comments related to the information 
collections requirements posted at www.regulations.gov.

    We consider your comments on this proposed collection of 
information in--
     Deciding whether the proposed collection is necessary for 
the proper performance of our functions, including whether the 
information will have practical use;
     Evaluating the accuracy of our estimate of the burden of 
the proposed collection, including the validity of our methodology and 
assumptions;
     Enhancing the quality, usefulness, and clarity of the 
information we collect; and
     Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques.

[[Page 18523]]

    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document and a copy of the application package in an 
accessible format. The Department will provide the requestor with an 
accessible format that may include Rich Text Format (RTF) or text 
format (txt), a thumb drive, an MP3 file, braille, large print, 
audiotape, or compact disc, or other accessible format.
    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.

Ruth Ryder,
Deputy Assistant Secretary for Policy and Programs, Office of 
Elementary and Secondary Education.
[FR Doc. 2021-07291 Filed 4-8-21; 8:45 am]
BILLING CODE 4000-01-P