[Federal Register Volume 77, Number 83 (Monday, April 30, 2012)]
[Pages 25470-25472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10357]



[Docket ID ED-2012-OESE-0002]

Final Revision to Selection Criteria--Enhanced Assessment 
Instruments; CFDA Number: 84.368

AGENCY: Office of Elementary and Secondary Education, Department of 

ACTION: Notice.


SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
amends the selection criteria under the Enhanced Assessment Instruments 
Grant program, also called the Enhanced Assessment Grant (EAG) program, 
as established in the notice of final priorities, requirements, 
definitions, and selection criteria published in the Federal Register 
on April 19, 2011 (2011 NFP). The 2011 NFP established specific 
priorities, requirements, definitions, and selection criteria that may 
be used for the EAG program. The revisions in this notice provide the 
Secretary with additional flexibility with respect to selection 
criteria for EAG competitions in 2012 that use fiscal year (FY) 2011 
funds and for subsequent competitions. We believe that these revisions 
will enable the Department to administer this program more effectively, 
simplify the application and review processes, and better ensure that 
the strongest applications receive EAG funds.

DATES: Effective Date: The revisions are effective May 30, 2012.

FOR FURTHER INFORMATION CONTACT: Collette Roney, U.S. Department of 
Education, 400 Maryland Avenue SW., room 3W210, Washington, DC 20202. 
Telephone: (202) 401-5245 or by email: Collette.Roney@ed.gov.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service, toll free, at 1-800-

    Purpose of Program: The purpose of the EAG program is to enhance 
the quality of assessment instruments and systems used by States for 
measuring the academic achievement of elementary and secondary school 
    Program Authority: 20 U.S.C. 7301a.
    We published a notice of proposed revisions for this program in the 
Federal Register on January 30, 2012 (77 FR 4553). That notice 
contained background information and our reasons for proposing the 
revisions relating to the use of selection criteria for this program.
    Public Comment: In response to our invitation in the notice of 
proposed revisions, we did not receive any comments. However, as a 
result of our further review of the proposed revisions since 
publication of the notice of proposed revisions, we have made one 
change as follows:

Analysis of Comments and Changes

    Comment: None.
    Discussion: In reviewing the statement of the proposed revisions to 
selection criteria further, the Department has decided that it may be 
helpful to address the assignment of maximum possible points--not only 
with respect to criteria used for competitions, but also with respect 
to factors under those criteria. The Department has the authority under 
34 CFR 75.201 to assign maximum points at the factor level. This 
change, therefore, does not substantively change the Department's 
authority or practice; it merely describes the manner in which the 
Department may indicate whether factors under a selection criterion 
have been assigned maximum points.
    Changes: We have added language to the statement of revisions to 
clarify that the Department may assign, in the notice inviting 
applications, the application package, or both, the maximum possible 
points an applicant may earn under each factor under a selection 

Final Revisions to Selection Criteria

    The Secretary may use one or more of the selection criteria listed 
in paragraphs (a) through (d) for evaluating an application under this 
program. This flexibility includes the authority to reduce the number 
of selection criteria. In order to assist peer reviewers in

[[Page 25471]]

determining the degree to which an applicant meets a criterion, the 
Secretary may further define each criterion from each of these sources 
by selecting one or more specific factors within a criterion or 
assigning factors from one criterion, from any of those sources, to 
another criterion, in any of those sources. We may apply one or more of 
these criteria in any year in which this program is in effect. In the 
notice inviting applications or the application package, or both, we 
will announce the maximum possible points assigned to each criterion 
and may also assign the maximum possible points for each factor.
    Selection criteria for any EAG competition may come from:
    (a) The selection criteria established in the 2011 NFP.
    (b) The selection criteria in 34 CFR 75.210.
    (c) Selection criteria based on the statutory requirements for the 
EAG program in accordance with 34 CFR 75.209.
    (d) Any combination of selection criteria and factors in paragraphs 
(a) through (c).
    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 selection criteria, we 
invite applications through a notice in the Federal Register.\1\

    \1\ Availability of funds for the EAG program for a given year 
is contingent upon an appropriation of funds for the program by the 

Executive Orders 12866 and 13563

    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, 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 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 regulatory action under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are taking this regulatory action only on a reasoned 
determination that its benefits justify its 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 these regulations are consistent with the 
principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits of this regulatory action. 
The potential costs associated with this regulatory action are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Summary of Potential Costs and Benefits

    This regulatory action affects only State educational agencies 
(SEAs) or consortia of SEAs applying for assistance under the EAG 
program. It creates flexibility for the Department, with respect to EAG 
competitions in 2012 for FY 2011 funds and for subsequent competitions, 
to select from among, or to combine, selection criteria that were 
established in the 2011 NFP criteria, selection criteria from 34 CFR 
75.210, and other selection criteria based on the statute under 34 CFR 
75.209. This flexibility allows the Department to align selection 
criteria with program needs and ensure that the strongest applications 
are selected for funding under the program.
    This flexibility does not impose a financial burden that SEAs would 
not otherwise incur in the development and submission of a grant 
application under the EAG program. In addition, under some 
circumstances (for example, if the Department elected to use fewer 
criteria or factors in a given competition), the revisions could reduce 
the financial burden of preparing an EAG grant application by a modest 
amount. Moreover, the Department typically only receives a small number 
of applications for this program, which further serves to mitigate any 
potential costs because few entities are affected.
    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.

[[Page 25472]]

    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or computer diskette) on request to the program contact 
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
    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: April 25, 2012.
Michael Yudin,
Acting Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2012-10357 Filed 4-27-12; 8:45 am]