81_FR_52493 81 FR 52341 - Final Priorities-Enhanced Assessment Instruments

81 FR 52341 - Final Priorities-Enhanced Assessment Instruments

DEPARTMENT OF EDUCATION

Federal Register Volume 81, Issue 152 (August 8, 2016)

Page Range52341-52346
FR Document2016-18530

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.

Federal Register, Volume 81 Issue 152 (Monday, August 8, 2016)
[Federal Register Volume 81, Number 152 (Monday, August 8, 2016)]
[Rules and Regulations]
[Pages 52341-52346]
From the Federal Register Online  [www.thefederalregister.org]
[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.thefederalregister.org/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



                                                                Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations                                        52341

                                             § 165.T01–1127 Safety Zone; 2016 Wings                  DEPARTMENT OF EDUCATION                               21985) (2011 NFP) and the 2013 notice
                                             Over Vermont Air Show, Lake Champlain;                                                                        of final priorities, requirement,
                                             Burlington, VT.                                         34 CFR Chapter II                                     definitions, and selection criteria for
                                                (a) Location. The following area is a                [Docket ID ED–2016–OESE–0004; CFDA                    this program (78 FR 31343) (2013 NFP).
                                                                                                     Number: 84.368A.]                                       Public Comment: In response to our
                                             Safety Zone: All navigable waters, from
                                                                                                                                                           invitation in the NPP, eight parties
                                             surface to bottom, of Lake Champlain,
                                                                                                     Final Priorities—Enhanced                             submitted comments on the proposed
                                             Burlington, VT, within an aeronautical
                                                                                                     Assessment Instruments                                priorities.
                                             box extending to and including the                                                                              We group major issues according to
                                             breakwater bounded by the following                     AGENCY:  Office of Elementary and                     subject. Generally, we do not address
                                             coordinates: 44°29′24″ N./073°14′44″                    Secondary Education, Department of                    technical and other minor changes.
                                             W.; 44°29′24″ N./073°14′03″ W.;                         Education.                                              Analysis of Comments and Changes:
                                             44°28′56″ N./073°14′03″ W.; 44°28′50″                   ACTION: Final priorities.                             An analysis of the comments and of any
                                             N./073°13′48″ W.; 44°28′12″ N./                                                                               changes in the priorities since
                                             073°13′33″ W.; 44°27′47″ N./073°14′03″                  SUMMARY:   The Assistant Secretary for                publication of the NPP follows.
                                             W.; 44°27′25″ N./073°14′03″ W.;                         Elementary and Secondary Education
                                                                                                     announces priorities under the                        General
                                             44°27′25″ N./073°14′44″ W.
                                                                                                     Enhanced Assessment Instruments                         Comment: Five commenters
                                                (b) Enforcement period. This safety                  Grant program, also called the Enhanced               expressed support for the proposed
                                             zone described in paragraph (a) above                   Assessment Grants (EAG) program. The                  priorities and noted the potential for
                                             will be enforced from 9 a.m. until 6 p.m.               Assistant Secretary may use one or more               grants awarded under the EAG program
                                             on August 12–14, 2016.                                  of these priorities for competitions using            to improve State assessment systems.
                                                (c) Regulations. (1) The general                     funds from fiscal year (FY) 2016 and                  Three commenters expressed views on
                                             regulations contained in 33 CFR 165.23                  later years. These priorities are designed            how the Department should distribute
                                             apply. During the enforcement period,                   to support projects to improve States’                awards across priorities under the EAG
                                             entry into, transiting, mooring,                        assessment systems.                                   program. One commenter strongly
                                             anchoring or remaining within this                      DATES: These priorities are effective                 recommended that Priority 2 be
                                             safety zone is prohibited unless                        September 7, 2016.                                    designated as an absolute priority in the
                                             authorized by the Captain of the Port or                FOR FURTHER INFORMATION CONTACT:                      EAG competition.
                                             his designated representatives.                         Donald Peasley, U.S. Department of                      Discussion: We appreciate the support
                                                                                                     Education, 400 Maryland Avenue SW.,                   for these priorities and agree that
                                                (2) Vessel operators given permission                                                                      projects funded under them will
                                             to enter or operate in the safety zone                  Room 3E124, Washington, DC 20202.
                                                                                                     Telephone: (202) 453–7982 or by email:                support States in continuously
                                             must comply with all directions given to                                                                      improving their assessment systems to
                                             them by the Captain of the Port or his                  donald.peasley@ed.gov.
                                                                                                        If you use a telecommunications                    measure college- and career-readiness.
                                             designated representatives.                                                                                   This notice establishes priorities that
                                                                                                     device for the deaf (TDD) or a text
                                                (3) Persons and vessels may request                  telephone (TTY), call the Federal Relay               can be used in any future competition,
                                             permission to enter the safety zone by                  Service (FRS), toll free, at 1–800–877–               but does not establish how those
                                             contacting the COTP or the COTP’s                       8339.                                                 priorities are designated in any
                                             designated representative on VHF–16 or                                                                        particular competition. For the
                                                                                                     SUPPLEMENTARY INFORMATION:                            competition funded with FY 2016
                                             via phone at 207–767–0303.
                                                                                                        Purpose of Program: The purpose of                 funds, as announced in the notice
                                                (4) The ‘‘designated representative’’ is             the EAG program is to enhance the                     inviting applications published
                                             any Coast Guard commissioned,                           quality of assessment instruments and                 elsewhere in this issue of the Federal
                                             warrant, or petty officer who has been                  assessment systems used by States for                 Register, Priorities 1, 2, and 3 will be
                                             designated by the Captain of the Port to                measuring the academic achievement of                 competitive preference priorities. The
                                             act on his behalf. The on-scene                         elementary and secondary school                       grant application and competition
                                             representative may be on a Coast Guard                  students.                                             process will determine the number and
                                             vessel, a Coast Guard Auxiliary vessel,                    Program Authority: Section 6112 of                 types of projects funded under each
                                             or onboard a local or state agency vessel               the Elementary and Secondary                          priority.
                                             that is authorized to act in support of                 Education Act of 1965 (ESEA), as                        Changes: None.
                                             the Coast Guard. Additionally, the Coast                amended by the No Child Left Behind                     Comment: One commenter
                                             Guard Auxiliary may be present to                       Act of 2001 (NCLB), and section                       encouraged the Department to consider
                                             inform vessel operators of this                         1203(b)(1) of the ESEA, as amended by                 requiring content developed under
                                             regulation.                                             the Every Student Succeeds Act (Pub. L.               proposed projects to be made freely
                                                                                                     114–95) (ESSA).                                       available to others. This commenter
                                                (5) Upon being hailed by a U.S. Coast                   We published a notice of proposed                  noted that, even if content is made
                                             Guard vessel by siren, radio, flashing                  priorities for this program in the Federal            publicly available, it is not always
                                             light or other means, the operator of the               Register on April 18, 2016 (81 FR                     accessible due to the use of proprietary
                                             vessel must proceed as directed.                        22550) (NPP). That notice contained                   software or applications.
                                               Dated: July 13, 2016.                                 background information and our reasons                  Discussion: We recognize the benefit
                                             M.A. Baroody,                                           for proposing the particular priorities.              of sharing work developed under the
                                                                                                        Except for minor revisions, there are              EAG program to serve as models and
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                                             Captain, U.S. Coast Guard, Captain of the
                                                                                                     no differences between the proposed                   resources for other States, which is why
                                             Port, Sector Northern New England.
                                                                                                     priorities and these final priorities.                Priorities 1 and 2 require an applicant
                                             [FR Doc. 2016–18535 Filed 8–5–16; 8:45 am]
                                                                                                        These priorities are for use in addition           responding to them to provide a
                                             BILLING CODE 9110–04–P                                  to those published in the 2011 notice of              dissemination plan. Sharing resources
                                                                                                     final priorities, requirements,                       and lessons learned from grantees is a
                                                                                                     definitions, and selection criteria (76 FR            key goal of the grant program.


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                                             52342              Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations

                                                Additionally, the notice of final                    assessments from English learners and                 other States, which is why Priorities 1
                                             priorities, requirements, definitions, and              their parents.                                        and 2 require an applicant responding
                                             selection criteria for this program                        Discussion: The Department                         to them to provide a dissemination plan.
                                             published in the Federal Register on                    recognizes the unique needs of English                However, the NPP did not include
                                             April 19, 2011 (76 FR 21985) (2011                      learners and the importance of ensuring               information regarding the content of
                                             NFP) includes a requirement that,                       that they are included in State                       such a dissemination plan. The
                                             unless otherwise protected by law or                    assessment systems and assessed fairly.               Department believes that it is important
                                             agreement as proprietary information,                   Having an assessment system that                      to clarify for applicants the expectations
                                             an eligible applicant awarded a grant                   validly, reliably, and fairly measures the            of such a dissemination plan.
                                             under this program must make any                        academic achievement of all elementary                  Changes: The Department added
                                             assessment content (i.e., assessments                   and secondary school students is vital to             language to Priorities 1 and 2 to specify
                                             and assessment items) and other                         providing necessary information to                    that applicants must propose
                                             assessment-related instruments                          inform instructional decisions and                    dissemination plans to share lessons
                                             developed with funds from this                          program evaluation, and to improve                    learned and best practices.
                                             competition freely available to States,                 outcomes for all students. These
                                                                                                                                                           Priority 1—Developing Innovative
                                             technology platform providers, and                      priorities are intended to benefit all
                                                                                                                                                           Assessment Item Types and Design
                                             others that request it for the purposes of              students, including English learners and
                                                                                                                                                           Approaches
                                             administering assessments, provided                     students with disabilities, by enhancing
                                             that those parties receiving assessment                 the quality of assessment instruments                    Comment: Two commenters proposed
                                             content comply with consortium or                       and systems used by States for                        including additional innovative
                                             State requirements for test or test item                measuring the academic achievement of                 assessment item types in this priority.
                                             security.                                               all elementary and secondary school                   One commenter suggested that
                                                Further, as with any grant, and                      students.                                             obtaining information on students’
                                             consistent with 2 CFR 200.315, the                         For example, paragraph (a)(2) of                   English language proficiency through a
                                             Department reserves a royalty-free,                     Priority 1 requires applicants to ensure              content assessment could be listed as an
                                             nonexclusive, and irrevocable right to                  the validity, reliability, and fairness of            example of an innovation. Another
                                             reproduce, publish, or otherwise use,                   the assessments and the comparability                 commenter recommended that the
                                             and to authorize others to use, for                     of student data; to meet this                         Department include assessments that
                                             Federal government purposes, the                        requirement, applicants will need to                  measure student behaviors and goals
                                             copyright in any work developed under                   address how they will evaluate the                    (e.g., persistence or dependability) in
                                             a grant (or contract under a grant) in this             fairness of their innovative item types               this priority, in addition to mastery of
                                             program, and any rights of copyright to                 for all students, including English                   academic content.
                                             which a grantee or contractor purchases                 learners. The Department believes that                   Discussion: While the Department
                                             ownership with grant support.                           strong assessment audits, as required                 included examples of new innovative
                                                As the Department has these tools                    under Priority 3, will ensure that tests              item types, such as performance tasks,
                                             available to require grantees to make                   are fully transparent to all students and             simulations, and interactive, multi-step,
                                             publicly available work developed                       their parents and will include                        technology-rich items, applicants may
                                             under the EAG program, we do not                        mechanisms for soliciting feedback from               propose projects to develop other kinds
                                             believe any related change to the                       all students and their parents, including             of innovative item types as long as they
                                             priorities is necessary.                                English learners.                                     meet the requirements of the priority.
                                                Changes: None.                                          Additionally, in the past, the                     As such, we do not include a
                                                Comment: One commenter                               Department has funded several projects                comprehensive list of innovative item
                                             encouraged the Department to explicitly                 that targeted improving the assessment                types or design approaches a State could
                                             advocate for innovative, efficient,                     of English language proficiency (see                  choose to develop. The statutory
                                             accessible, and fair testing for English                www2.ed.gov/programs/eag/                             authority for this program specifically
                                             learners in each priority, including by:                awards.html for a complete listing of                 references the assessment of academic
                                             Including English language proficiency                  past awards made under this authority).               achievement, and the assessment
                                             assessments in Priority 1; requiring                    Given that these grants are still active              systems developed by States to meet the
                                             grantees implementing projects under                    and the first English language                        requirements under title I, part A of the
                                             Priority 1 to include English learners                  proficiency assessments developed                     ESEA must measure the academic
                                             and their families as a representative                  under these grants were administered                  achievement of students in, at a
                                             sample in any research and                              for the first time in the 2015–2016                   minimum, reading/language arts,
                                             development activities and gather                       school year, the Department does not                  mathematics, and science. As a result,
                                             evidence that innovative item types are                 think it necessary to include a specific              the Department believes it would not be
                                             accessible to English learners; requiring               reference to English language                         appropriate to exclusively focus on
                                             projects under Priority 2 to include                    proficiency assessments. Items for                    innovative assessments that focused on
                                             representation from English learners,                   summative assessments in reading/                     non-academic skills.
                                             parents of English learners, and teachers               language arts, mathematics, and science                  Changes: None.
                                             of English learners. The commenter                      are the focus of this competition.                       Comment: One commenter suggested
                                             expressed support for the requirement                      However, there is nothing that would               adding a requirement to this priority
                                             in Priority 3 that SEAs ensure tests are                preclude the submission of a proposal                 that applicants articulate a theory of
                                             fair for all students and particularly                  under these priorities that specifically              action for how innovative assessment
                                             commended the reference to English
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                                                                                                     addresses the assessment of English                   systems and design approaches will
                                             learners. The commenter also                            learners.                                             support deeper student learning.
                                             recommended requiring States                               Changes: None.                                        Discussion: The Department believes
                                             proposing projects under Priority 3 to                     Comment: None.                                     that innovative item types and modular
                                             ensure that tests are fully transparent to                 Discussion: The Department                         assessment approaches allow students
                                             English learners and their parents and to               recognizes the benefit of sharing work                to gain valuable experience by
                                             solicit feedback on the usefulness of                   developed under the EAG program with                  demonstrating complex work and


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                                                                Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations                                         52343

                                             critical thinking skills. Assessments can               into account principles of universal                  students. In paragraph (b) of Priority 2,
                                             improve student learning by providing                   design for learning.                                  the Department requires that States
                                             data that can support and inform                          Discussion: The priority requires                   include educators and parents in the
                                             instruction, particularly if the data are               applicants to ensure the quality,                     development of score reports and
                                             timely and targeted. However, the                       validity, reliability, and fairness of the            paragraph (b)(1)(ii) focuses on
                                             primary focus of the priority is                        assessment or assessment items and                    educators’ and parents’ assessment
                                             developing new methods for measuring                    comparability of student data. The                    literacy.
                                             student knowledge and skills to                         Department acknowledges that                             Changes: None.
                                             determine college- and career-readiness.                universal design for learning is a                       Comment: Two commenters
                                             As such, the Department believes it is                  nationally recognized method for taking               recommended that the Department
                                             important for applicants to focus their                 into account the needs of all students                require States to develop both enhanced
                                             proposals on the complex tasks of                       when designing an assessment item,                    score reporting templates and digital
                                             developing, evaluating, and                             test, or system and that this method can              mechanisms for communicating
                                             implementing new, innovative item                       help to promote fairness in assessment,               assessment results.
                                             types or developing approaches to                       and also notes that assessments                          Discussion: The Department
                                             transforming traditional summative                      administered to fulfill the requirements              appreciates the support for this priority
                                             assessment forms into a series of                       of title I, part A of the ESEA, recently              and agrees that it is important to
                                             modular assessment forms. The                           reauthorized by the ESSA, must address                improve the utility of information about
                                             Department agrees with the commenter                    universal design for learning.                        student performance included in reports
                                             that developing a sound theory of action                  Changes: We revised this priority to                of assessment results. However, because
                                             for any large research and development                  include a reference to universal design               we recognize that States have different
                                             proposal in educational assessment is a                 for learning.                                         goals and may already have initiatives
                                             good project planning tool, but does not                                                                      underway to develop score reporting
                                                                                                     Priority 2—Improving Assessment
                                             believe it is necessary to explicitly make                                                                    templates or digital mechanisms to
                                                                                                     Scoring and Score Reporting
                                             this a priority or requirement.                                                                               communicate assessment results, we do
                                                                                                        Comment: One commenter suggested                   not think it is appropriate to make both
                                                Changes: None.
                                                                                                     that we require applicants to present a               activities required under Priority 2.
                                                Comment: One commenter                               high-quality plan for leveraging other                   Changes: None.
                                             recommended that the Department                         Federal funds to improve educators’                      Comment: Two commenters provided
                                             clarify the meaning of the term                         assessment literacy and support                       several recommendations for how States
                                             ‘‘competency-based assessment’’ to                      parental engagement.                                  could improve score reporting,
                                             communicate that such an assessment                        Discussion: The Department agrees                  particularly to meet parents’ needs. For
                                             supports competency-based                               that assessment literacy and parent                   example, both commenters
                                             determinations and is not a type of                     engagement in assessment systems are                  recommended that States share
                                             assessment.                                             important goals. We also support States’              contextual information with parents
                                                Discussion: The Department                           efforts to carefully examine how Federal              through a cover letter accompanying the
                                             appreciates this recommendation, but                    and other funding sources can best be                 score report. One commenter also
                                             believes that clarification of the term                 leveraged to support their goals and to               suggested that States: Include clear,
                                             ‘‘competency-based assessment’’ is not                  sustain work supported by time-limited                actionable next steps for parents; ensure
                                             needed in the priority itself. The                      grant funding. As part of the President’s             that information is communicated in
                                             priority indicates that innovative item                 Testing Action Plan, the Department                   parent-friendly language; prioritize the
                                             types may include those item types that                 released a Dear Colleague Letter in                   content of the score report to avoid
                                             can support competency-based                            February 2016 (see www2.ed.gov/                       overwhelming parents; seek parent
                                             assessments. This term, also used in the                admins/lead/account/saa/16-                           feedback on score reporting materials;
                                             President’s Testing Action Plan (see                    0002signedcsso222016ltr.pdf) that                     and ensure that reports are personalized
                                             www.ed.gov/news/press-releases/fact-                    provides examples of how funds under                  and culturally sensitive.
                                             sheet-testing-action-plan), is used to                  titles I, II, III, and VI of the ESEA can                Discussion: The Department believes
                                             describe a system of assessments that                   be used to increase assessment literacy               that these comments provide helpful
                                             allows students to demonstrate their                    and parent engagement. However, in                    examples of how an applicant might
                                             learning throughout the school year and                 order to allow applicants flexibility to              address needs related to score reporting
                                             focuses on the application of skills and                use appropriate funds to best meet their              and improve the utility of information
                                             knowledge. The Department believes                      needs, we decline to prescribe that                   about student performance included in
                                             that innovative item types, including                   States use other Federal funding, in                  score reports.
                                             performance tasks, can be useful as part                addition to any EAG funding awarded,                     Changes: We have revised this
                                             of a competency-based assessment. In                    for these purposes.                                   priority to include the commenters’
                                             addition, the Department believes that                     Changes: None.                                     suggestions regarding clear and
                                             the term is recognized by experts in the                   Comment: One commenter                             actionable next steps for parents as an
                                             field but that there may be variations in               recommended that assessment reporting                 example.
                                             how it is applied and that proposals                    be focused on ‘‘stakeholders closest to                  Comment: One commenter suggested
                                             should define this type of assessment in                students’’ who can use the data to                    that the Department require or strongly
                                             the context of the proposed design and                  improve student learning.                             incentivize States to provide training for
                                             plan of work.                                              Discussion: The Department agrees                  educators on data and using data to
                                                Change: None.                                        that it is important for information on
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                                                                                                                                                           inform instruction.
                                                Comment: One commenter suggested                     student performance to be made                           Discussion: The Department agrees
                                             that the design of technology-based                     available to stakeholders close to                    that ensuring educators understand
                                             items, interactive tools, and user                      students, such as educators and parents,              assessment data and can use that
                                             interfaces proposed in projects under                   in a timely fashion and in a format that              information to guide instruction and
                                             this priority be based on a Principled                  provides actionable information to                    supports for students is an important
                                             Assessment Design framework that takes                  guide instruction and supports for                    part of making assessments worth


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                                             52344              Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations

                                             taking. The President’s Testing Action                  inventories proposed by applicants                    summative assessments in reading/
                                             Plan also highlights this as a key area of              must include a review of all assessments              language arts, mathematics, or science;
                                             focus for States and districts. For this                at the Federal, State, and local levels                  (1) Development of innovative item
                                             reason, we have included improving                      and must include feedback from                        types under paragraph (a) may include,
                                             assessment literacy of educators and                    stakeholders on the entire assessment                 for example, performance tasks;
                                             parents as one of the activities                        system.                                               simulations; or interactive, multi-step,
                                             applicants could choose to include in                      The Department agrees that                         technology-rich items that can support
                                             projects proposed under this priority.                  assessments should provide clear and                  competency-based assessments or
                                             However, because we recognize that                      actionable information about students’                portfolio projects;
                                             States have different goals and may                     knowledge and skills to stakeholders.                    (2) Projects under this priority must
                                             already have initiatives underway to                    However, consistent with the                          be designed to develop new methods for
                                             support assessment literacy, we do not                  President’s Testing Action plan, we                   collecting evidence about a student’s
                                             think it is appropriate to make this a                  believe that assessment inventories                   knowledge and abilities and ensure the
                                             required component of projects                          should not be focused only on whether                 quality, validity, reliability, and fairness
                                             proposed under Priority 2.                              assessments provide feedback to                       (such as by incorporating principles of
                                               Changes: We have included in                          stakeholders, but should also ensure                  universal design for learning) of the
                                             Priority 2 examples of how applicants                   that tests are high quality, worth taking,            assessment and comparability of student
                                             might improve assessment literacy by                    time limited, fair for all students, and              data; or
                                             providing training on test development                  tied to improved student learning.                       (b) Develop new approaches to
                                             and interpretation of test scores.                         Changes: None.                                     transform traditional, end-of-year
                                                                                                        Comment: One commenter proposed                    summative assessment forms with many
                                             Priority 3—Inventory of State and Local                 that the Department remove the                        items into a series of modular
                                             Assessment Systems                                      requirement that State educational                    assessment forms, each with fewer items
                                               Comment: One commenter                                agencies (SEAs) review State and LEA                  than the end-of-year summative
                                             recommended that the Department                         activities related to test preparation to             assessment.
                                             remove Proposed Priority 3, given that                  make sure those activities are focused                   (1) To respond to paragraph (b),
                                             States may use other Federal funds to                   on academic content and not on test-                  applicants must develop modular
                                             conduct assessment audit activities.                    taking skills.                                        assessment approaches which can be
                                               Discussion: The Department agrees                        Discussion: The Department believes                used to provide timely feedback to
                                             that there may be opportunities for                     that low-quality test preparation                     educators and parents as well as be
                                             States and local educational agencies                   strategies are a poor use of students’                combined to provide a valid, reliable,
                                             (LEAs) to leverage other Federal funds                  time and that students perform best on                and fair summative assessment of
                                             to conduct assessment audit activities                  high-quality assessments that measure                 individual students.
                                             beginning with FY 2017, such as the                     critical thinking and complex skills                     (c) Applicants proposing projects
                                             State assessment grant funds authorized                 when they have been exposed to strong                 under either paragraph (a) or (b) must
                                             under section 1201 of the ESEA, as                      instruction. As such, we maintain that                provide a dissemination plan to share
                                             amended by the ESSA, and the                            ensuring that test preparation strategies             lessons learned and best practices such
                                             dedicated funds for assessment audit                    and activities are focused on academic                that their projects can serve as models
                                             work authorized under section 1202 of                   content instead of test-taking skills is an           and resources that can be shared with
                                             the ESEA, as amended by the ESSA. For                   important part of reviewing and                       other States.
                                             this reason, the Department has: limited                improving assessment systems.
                                             the amount of grant funding an                             Changes: None.                                     Priority 2—Improving Assessment
                                             applicant could receive under this                         Comment: None.                                     Scoring and Score Reporting
                                             priority; required that projects under                     Discussion: In the NPP, paragraph                     Under this priority, SEAs must:
                                             Priority 3 be no longer than 12 months;                 (a)(2) of Priority 3 indicated that the                  (a) Develop innovative tools that
                                             and required that projects include a                    purpose of assessments is to help                     leverage technology to score
                                             longer-term plan for implementation                     schools meet their goals. Although we                 assessments;
                                             using other funding sources. However,                   believe that assessments provide                         (1) To respond to paragraph (a),
                                             the Department believes that funding                    valuable information about school                     applicants must propose projects to
                                             grants under this priority presents a                   performance and can help schools to                   reduce the time it takes to provide test
                                             valuable opportunity for applicants to                  assess progress toward their goals, the               results to educators, parents, and
                                             lay the groundwork for activities in this               Department believes that assessments                  students and to make it more cost-
                                             area and begin the important work of                    have other purposes that are important                effective to include non-multiple choice
                                             evaluating all assessments administered                 for applicants to consider as they                    items on assessments. These innovative
                                             in the State and its LEAs.                              address Priority 3.                                   tools must improve automated scoring
                                               Changes: None.                                           Changes: The Department adjusted                   of student assessments, in particular
                                               Comment: One commenter suggested                      the language in paragraph (a)(2) of                   non-multiple choice items in reading/
                                             that the Department reframe the priority                Priority 3 to reflect that assessments are            language arts, mathematics, or science;
                                             to focus on assessment systems and                      intended to measure student                           or
                                             clarify that the goal of assessment                     achievement and identify gaps in                         (b) Propose projects, in consultation
                                             inventories is to ensure that States’                   students’ knowledge and skills.                       with organizations representing parents
                                             balanced systems of assessments work                    Final Priorities                                      (including parents of English learners
                                                                                                                                                           and parents of students with
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                                             together to provide information to
                                             relevant stakeholders.                                  Priority 1—Developing Innovative                      disabilities), students, teachers,
                                               Discussion: The Department believes                   Assessment Item Types and Design                      counselors, and school administrators to
                                             that this priority, as written, already                 Approaches                                            address needs related to score reporting
                                             emphasizes the importance of analyzing                    Under this priority, SEAs must:                     and improve the utility of information
                                             entire assessment systems, rather than                    (a) Develop, evaluate, and implement                about student performance included in
                                             individual assessments. Assessment                      new, innovative item types for use in                 reports of assessment results and


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                                                                Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations                                           52345

                                             provide better and more timely                          information that can be used to measure                  Types of Priorities:
                                             information to educators and parents;                   student growth accurately over time;                     When inviting applications for a
                                               (1) To respond to paragraph (b),                         (3) Time-limited, in order to balance              competition using one or more
                                             applicants must include one or more of                  instructional time and the need for                   priorities, we designate the type of each
                                             the following in their projects:                        assessments, for example, by                          priority as absolute, competitive
                                               (i) Developing enhanced score                         eliminating duplicative assessments and               preference, or invitational through a
                                             reporting templates or digital                          assessments that incentivize low-quality              notice in the Federal Register. The
                                             mechanisms for communicating                            test preparation strategies that consume              effect of each type of priority follows:
                                             assessment results and their meaning                    valuable classroom time;                                 Absolute priority: Under an absolute
                                             (such as by providing clear and                            (4) Fair for all students and used to              priority, we consider only applications
                                             actionable next steps for parents);                     support equity in educational                         that meet the priority (34 CFR
                                               (ii) Improving the assessment literacy                opportunity by ensuring that                          75.105(c)(3)).
                                             of educators and parents to help them                   accessibility features and                               Competitive preference priority:
                                             interpret test results and to support                   accommodations level the playing field                Under a competitive preference priority,
                                             teaching and learning in the classroom                  so tests accurately reflect what all                  we give competitive preference to an
                                             (such as by providing training on test                  students, including students with                     application by (1) awarding additional
                                             development and interpretation of test                  disabilities and English learners, know               points, depending on the extent to
                                             scores); and                                            and can do;                                           which the application meets the priority
                                               (iii) Developing mechanisms for                          (5) Fully transparent to students and              (34 CFR 75.105(c)(2)(i)); or (2) selecting
                                             secure transmission and individual use                  parents, so that States and districts can             an application that meets the priority
                                             of assessment results by teachers,                      clearly explain to parents the purpose,               over an application of comparable merit
                                             students, and parents.                                  the source of the requirement (if                     that does not meet the priority (34 CFR
                                               (c) Applicants proposing projects                     appropriate), and the use by teachers                 75.105(c)(2)(ii)).
                                             under either paragraph (a) or (b) must                  and schools, and provide feedback to
                                             provide a dissemination plan for sharing                                                                         Invitational priority: Under an
                                                                                                     parents and students on student
                                             lessons learned and best practices such                                                                       invitational priority, we are particularly
                                                                                                     performance; and
                                             that their projects can serve as models                    (6) Tied to improving student learning             interested in applications that meet the
                                             and resources that can be shared with                   as tools in the broader work of teaching              priority. However, we do not give an
                                             other States.                                           and learning.                                         application that meets the priority a
                                                                                                        (c) Approaches to assessment                       preference over other applications (34
                                             Priority 3—Inventory of State and Local                 inventories under paragraph (a) must                  CFR 75.105(c)(1)).
                                             Assessment Systems                                      include:                                                 This notice does not preclude us from
                                               (a) Under this priority, SEAs must—                      (1) Review of the schedule for                     proposing additional priorities,
                                               (1) Review statewide and local                        administration of all assessments                     requirements, definitions, or selection
                                             assessments to ensure that each test is                 required at the Federal, State, and local             criteria, subject to meeting applicable
                                             of high quality, maximizes instructional                levels;                                               rulemaking requirements.
                                             goals, has a clear purpose and utility,                    (2) Review of the purpose of, and legal              Note: This notice does not solicit
                                             and is designed to help students                        authority for, administration of all                  applications. In any year in which we choose
                                             demonstrate mastery of State standards;                 assessments required at the Federal,                  to use one or more of these priorities, we
                                               (2) Determine whether assessments                     State, and local levels; and                          invite applications through a notice in the
                                             are serving their intended purpose to                      (3) Feedback on the assessment                     Federal Register.
                                             measure student achievement and                         system from stakeholders, which could
                                             identify gaps in students’ knowledge                    include information on how teachers,                  Executive Orders 12866 and 13563
                                             and skills and to eliminate redundant                   principals, other school leaders, and                 Regulatory Impact Analysis
                                             and unnecessary testing; and                            administrators use assessment data to
                                               (3) Review State and LEA strategies                   inform and differentiate instruction,                   Under Executive Order 12866, the
                                             and activities related to test preparation              how much time teachers spend on                       Secretary must determine whether this
                                             to make sure those strategies and                       assessment preparation and                            regulatory action is ‘‘significant’’ and,
                                             activities are focused on academic                      administration, and the assessments that              therefore, subject to the requirements of
                                             content and not on test-taking skills.                  administrators, teachers, principals,                 the Executive order and subject to
                                               (b) To meet the requirements in                       other school leaders, parents, and                    review by the Office of Management and
                                             paragraph (a), SEAs must ensure that                    students do and do not find useful.                   Budget (OMB). Section 3(f) of Executive
                                             tests, including statewide and local                       (d) Projects under this priority—                  Order 12866 defines a ‘‘significant
                                             assessments are—                                           (1) Must be no longer than 12 months;              regulatory action’’ as an action likely to
                                               (1) Worth taking, meaning that                           (2) Must include a longer-term project             result in a rule that may—
                                             assessments are a component of good                     plan, understanding that, beginning                     (1) Have an annual effect on the
                                             instruction and require students to                     with FY 2017, there may be dedicated                  economy of $100 million or more, or
                                             perform the same kind of complex work                   Federal funds for assessment audit work               adversely affect a sector of the economy,
                                             they do in an effective classroom and                   as authorized under section 1202 of the               productivity, competition, jobs, the
                                             the real world;                                         ESEA, as amended by the ESSA, and                     environment, public health or safety, or
                                               (2) High quality, resulting in                        understanding that States and LEAs may                State, local or tribal governments or
                                             actionable, objective information about                 use other Federal funds, such as the                  communities in a material way (also
                                             students’ knowledge and skills,                                                                               referred to as an ‘‘economically
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                                                                                                     State assessment grant funds, authorized
                                             including by assessing the full range of                under section 1201 of the ESEA, as                    significant’’ rule);
                                             relevant State standards, eliciting                     amended by the ESSA, consistent with                    (2) Create serious inconsistency or
                                             complex student demonstrations or                       the purposes for those funds, to                      otherwise interfere with an action taken
                                             applications of knowledge, providing an                 implement such plans; and                             or planned by another agency;
                                             accurate measure of student                                (3) Must have a budget of $200,000 or                (3) Materially alter the budgetary
                                             achievement, and producing                              less.                                                 impacts of entitlement grants, user fees,


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                                             52346              Federal Register / Vol. 81, No. 152 / Monday, August 8, 2016 / Rules and Regulations

                                             or loan programs or the rights and                      action is consistent with the principles              available via the Federal Digital System
                                             obligations of recipients thereof; or                   in Executive Order 13563.                             at: www.gpo.gov/fdsys. At this site you
                                                (4) Raise novel legal or policy issues                  We also have determined that this                  can view this document, as well as all
                                             arising out of legal mandates, the                      regulatory action does not unduly                     other documents of this Department
                                             President’s priorities, or the principles               interfere with State, local, and tribal               published in the Federal Register, in
                                             stated in the Executive order.                          governments in the exercise of their                  text or Portable Document Format
                                                This final regulatory action is not a                governmental functions.                               (PDF). To use PDF you must have
                                             significant regulatory action subject to                   In accordance with both Executive                  Adobe Acrobat Reader, which is
                                             review by OMB under section 3(f) of                     orders, the Department has assessed the               available free at the site.
                                             Executive Order 12866.                                  potential costs and benefits, both                       You may also access documents of the
                                                We have also reviewed this final                     quantitative and qualitative, of this                 Department published in the Federal
                                             regulatory action under Executive Order                 regulatory action. The potential costs                Register by using the article search
                                             13563, which supplements and                            are those resulting from statutory                    feature at: www.federalregister.gov.
                                             explicitly reaffirms the principles,                    requirements and those we have                        Specifically, through the advanced
                                             structures, and definitions governing                   determined as necessary for                           search feature at this site, you can limit
                                             regulatory review established in                        administering the Department’s                        your search to documents published by
                                             Executive Order 12866. To the extent                    programs and activities.                              the Department.
                                             permitted by law, Executive Order                          The priorities included in this notice
                                                                                                     would benefit students, parents,                        Dated: August 1, 2016.
                                             13563 requires that an agency—                                                                                Ann Whalen,
                                                                                                     educators, administrators, and other
                                                (1) Propose or adopt regulations only                                                                      Senior Advisor to the Secretary, Delegated
                                                                                                     stakeholders by improving the quality of
                                             upon a reasoned determination that                                                                            the Duties of Assistant, Secretary for
                                                                                                     State assessment instruments and
                                             their benefits justify their costs                                                                            Elementary and Secondary Education.
                                                                                                     systems. Priority 1 will yield new, more
                                             (recognizing that some benefits and                                                                           [FR Doc. 2016–18530 Filed 8–5–16; 8:45 am]
                                                                                                     authentic methods for collecting
                                             costs are difficult to quantify);
                                                                                                     evidence about what students know and                 BILLING CODE 4000–01–P
                                                (2) Tailor its regulations to impose the             are able to do and provide educators
                                             least burden on society, consistent with                with more individualized, easily
                                             obtaining regulatory objectives and                     integrated assessments that can support
                                             taking into account—among other things                                                                        ENVIRONMENTAL PROTECTION
                                                                                                     competency-based learning and other
                                             and to the extent practicable—the costs                                                                       AGENCY
                                                                                                     forms of personalized instruction.
                                             of cumulative regulations;                              Priority 2 will allow for States to score
                                                (3) In choosing among alternative                                                                          [EPA–HQ–OAR–2009–0234; FRL–9950–31–
                                                                                                     non-multiple choice assessment items                  OAR]
                                             regulatory approaches, select those                     more quickly and at a lower cost and
                                             approaches that maximize net benefits                   ensure that assessments provide timely,
                                             (including potential economic,                                                                                40 CFR Parts 60 and 63
                                                                                                     actionable feedback to students, parents,
                                             environmental, public health and safety,                and educators. Priority 3 will encourage              Reconsideration on the Mercury and
                                             and other advantages; distributive                      States to ensure that assessments are of              Air Toxics Standards (MATS) and the
                                             impacts; and equity);                                   high quality, maximize instructional                  Utility New Source Performance
                                                (4) To the extent feasible, specify                  goals, and have clear purpose and                     Standards Startup and Shutdown
                                             performance objectives, rather than the                 utility. Further, it will encourage States            Provisions; Final Action
                                             behavior or manner of compliance a                      to eliminate unnecessary or redundant
                                             regulated entity must adopt; and                        tests.                                                AGENCY:  Environmental Protection
                                                (5) Identify and assess available                       Intergovernmental Review: This                     Agency (EPA).
                                             alternatives to direct regulation,                      program is subject to Executive Order                 ACTION: Notice of final action denying
                                             including economic incentives—such as                   12372 and the regulations in 34 CFR                   petitions for reconsideration.
                                             user fees or marketable permits—to                      part 79. One of the objectives of the
                                             encourage the desired behavior, or                      Executive order is to foster an                       SUMMARY:    The U.S. Environmental
                                             provide information that enables the                    intergovernmental partnership and a                   Protection Agency (EPA) is providing
                                             public to make choices.                                 strengthened federalism. The Executive                notice that it has responded to two
                                                Executive Order 13563 also requires                  order relies on processes developed by                petitions for reconsideration of the final
                                             an agency ‘‘to use the best available                   State and local governments for                       rule titled ‘‘Reconsideration of Certain
                                             techniques to quantify anticipated                      coordination and review of proposed                   Startup/Shutdown Issues: National
                                             present and future benefits and costs as                Federal financial assistance.                         Emission Standards for Hazardous Air
                                             accurately as possible.’’ The Office of                    This document provides early                       Pollutants (NESHAP) From Coal- and
                                             Information and Regulatory Affairs of                   notification of our specific plans and                Oil-Fired Electric Utility Steam
                                             OMB has emphasized that these                           actions for this program.                             Generating Units and Standards of
                                             techniques may include ‘‘identifying                       Accessible Format: Individuals with                Performance (NSPS) for Fossil-Fuel-
                                             changing future compliance costs that                   disabilities can obtain this document in              Fired Electric Utility, Industrial-
                                             might result from technological                         an accessible format (e.g., braille, large            Commercial-Institutional, and Small
                                             innovation or anticipated behavioral                    print, audiotape, or compact disc) on                 Industrial-Commercial-Institutional
                                             changes.’’                                              request to the program contact person                 Steam Generating Units,’’ published in
                                                We are issuing these final priorities                listed under FOR FURTHER INFORMATION                  the Federal Register on November 19,
                                             only on a reasoned determination that                                                                         2014. The Administrator denied the
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                                                                                                     CONTACT.
                                             their benefits justify their costs. In                     Electronic Access to This Document:                requests for reconsideration in separate
                                             choosing among alternative regulatory                   The official version of this document is              letters to the petitioners. The letters and
                                             approaches, we selected those                           the document published in the Federal                 a document providing a full explanation
                                             approaches that maximize net benefits.                  Register. Free Internet access to the                 of the agency’s rationale for each denial
                                             Based on the analysis that follows, the                 official edition of the Federal Register              is in the docket for these rules.
                                             Department believes that this regulatory                and the Code of Federal Regulations is                DATES: August 8, 2016.



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Document Created: 2016-08-06 03:08:35
Document Modified: 2016-08-06 03:08:35
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal priorities.
DatesThese priorities are effective September 7, 2016.
ContactDonald Peasley, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E124, Washington, DC 20202. Telephone: (202) 453-7982 or by email: [email protected]
FR Citation81 FR 52341 

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