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[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
[Rules and Regulations]
[Pages 45944-45949]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18907]

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DEPARTMENT OF EDUCATION

34 CFR Chapter III

Final Priorities and Definitions; State Personnel Development 
Grants

    CFDA Number: 84.323A.
AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final priorities and definitions.

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SUMMARY: The Assistant Secretary for Special Education and 
Rehabilitative Services announces two priorities for State Personnel 
Development Grants (SPDGs): Effective and Efficient Delivery of 
Professional Development (Priority 1) and Targeting Teachers' 
Professional Development Needs Based on Student Growth (Priority 2). 
The Assistant Secretary may use one or more of these priorities for 
competitions in fiscal year (FY) 2012 and later years. The Assistant 
Secretary also announces definitions applicable to this program and 
these priorities. We take this action to assist State educational 
agencies (SEAs) to make their systems of professional development more 
effective and efficient by providing evidence-based and ongoing 
professional development that uses technology to support the 
implementation of evidence-based practices and to assist local 
educational agencies (LEAs) in providing professional development 
targeted to meet the specific needs of teachers identified by teacher 
evaluation systems that take into account student growth as a 
significant factor in determining performance levels. We intend to use 
these priorities to improve educational services and outcomes for 
children with disabilities.

DATES: Effective Date: These priorities and definitions are effective 
September 4, 2012.

FOR FURTHER INFORMATION CONTACT: Jennifer Coffey, U.S. Department of 
Education, 400 Maryland Avenue SW., room 4097, Potomac Center Plaza 
(PCP), Washington, DC 20202-2600. Telephone: (202) 245-6673 or by 
email: jennifer.coffey@ed.gov.
    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: This notice announces definitions and two 
priorities that the Office of Special Education Programs (OSEP) intends 
to use for the SPDG competition in FY 2012 and possibly later years. 
However, nothing precludes OSEP from publishing additional priorities,

[[Page 45945]]

requirements, definitions, or selection criteria, if needed. 
Furthermore, OSEP is under no obligation to make an award for these 
priorities. The decision to make an award will be based on the quality 
of applications received and available funding.
    Purpose of Program: The purpose of this program is to assist SEAs 
in reforming and improving their systems for personnel preparation and 
professional development in early intervention, educational, and 
transition services in order to improve results for children with 
disabilities.
    Statutory Requirements: Applicants under the SPDG program must meet 
the statutory requirements in sections 651 through 654 of the 
Individuals with Disabilities Education Act (IDEA), including the 
application requirements in section 653 and the use of funds 
requirements in section 654. Because the priorities and definitions in 
this notice supplement these statutory requirements, applicants should 
familiarize themselves with the statutory requirements they must also 
meet to receive funding under this program.
    In addition, section 651(b) of the IDEA defines the term 
``personnel'' as it is used in connection with the SPDG program. This 
definition applies to the priorities in this notice as well. 
``Personnel'' means special education teachers, regular education 
teachers, principals, administrators, related services personnel, 
paraprofessionals, and early intervention personnel serving infants, 
toddlers, preschoolers, or children with disabilities, except where a 
particular category of personnel, such as related services personnel, 
is identified.
    Program Authority: 20 U.S.C. 1451-1455.
    We published a notice of proposed priorities and definitions for 
the SPDG program in the Federal Register on April 13, 2012 (77 FR 
22306). That notice contained background information and our reasons 
for proposing these particular priorities and definitions.
    Public Comment: In response to our invitation in the notice of 
proposed priorities and definitions, 11 parties submitted comments.
    We group major issues according to subject. Generally, we do not 
address technical and other minor changes. In addition, we do not 
address comments that raised concerns not directly related to the 
proposed priorities and definitions.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priorities or definitions since publication of 
the notice of proposed priorities and definitions follows.

General Comments

    Comment: Two commenters recommended that we include all school 
personnel in both priorities. One commenter recommended that OSEP use 
the term ``school personnel'' instead of ``teacher'' throughout the two 
priorities to ensure that all school personnel, as the IDEA defines the 
term, have access to evidence-based professional development.
    Discussion: For Priority 1, we are using the definition of 
``personnel'' from section 651(b) of the IDEA because Priority 1 is 
designed broadly to focus on the effective and efficient delivery of 
professional development using evidence-based professional development 
practices. This priority would apply to all personnel defined in 
section 651(b) of the IDEA, not just to teachers. Priority 2, however, 
is limited to the specific professional development needs of general 
and special education teachers identified by teacher evaluation systems 
that take into account student growth as a significant factor in 
determining performance levels. Therefore, it would not be appropriate 
to apply the definition of ``personnel'' in section 651(b) of the IDEA 
to Priority 2.
    Changes: None.
    Comment: One commenter noted that rural school personnel would 
especially benefit from using technology to provide professional 
development in the form of coaching.
    Discussion: OSEP agrees that the use of technology can improve the 
delivery of professional development in rural areas and that technology 
could provide a means of coaching school personnel in rural areas in 
using and maintaining new skills. These activities can be supported 
under Priority 1.
    Changes: None.
    Comment: One commenter recommended that OSEP add to the priorities 
a focus on personnel preparation.
    Discussion: The primary focus of the SPDG program is to improve 
professional development for personnel so that they have the knowledge 
and skills to improve results for children with disabilities. High-
quality, comprehensive professional development programs are essential 
to ensure that school personnel possess the skills and knowledge 
necessary to address the early intervention, educational, and related 
services needs of infants, toddlers, and children with disabilities. 
The Department's intent in publishing this priority is to allow States 
to make their systems of professional development for personnel serving 
children with disabilities more effective and efficient through the use 
of evidence-based practices. OSEP appreciates the commenter's 
suggestion to expand Priority 1 to include a focus on personnel 
preparation. However, OSEP believes that other funding opportunities 
can address States' personnel preparation needs, such as grants under 
section 662 of IDEA, and that the more limited resources under the SPDG 
program, 90 percent of which must be used for professional development 
as provided for in section 654(d)(1) of the IDEA, should be used 
primarily for professional development activities.
    Changes: None.
    Comment: Several commenters requested that Priority 1 include 
particular practices as areas for professional development. For 
example, some commenters recommended including references to universal 
design for learning, multi-tiered systems of support, and positive 
behavioral interventions and supports to the description of evidence-
based professional development practices.
    Discussion: The primary focus of this priority is on the use of 
evidence-based professional development practices that increase the 
implementation of evidence-based instructional practices to improve 
outcomes for children with disabilities. Accordingly, applicants that 
wish to address particular practices in their proposed projects may do 
so, provided they can demonstrate that these practices are evidence-
based and will improve outcomes for children with disabilities.
    Changes: None.

Priority 1--Effective and Efficient Delivery of Professional 
Development

    Comment: Multiple commenters supported the focus in Priority 1 on 
evidence-based and ongoing professional development that makes use of 
technology to reach school personnel. However, one commenter stated 
that the definition of technology is unclear and asked for 
clarification regarding the ``newer technologies'' referred to under 
the ``Use of Technology'' in the background section for Priority 1. 
This commenter stated that the background section refers to the use of 
bug-in-the ear technology for coaching and distance education 
technology for providing professional development to remote areas.
    Discussion: OSEP appreciates commenters' support for the use of 
technology under Priority 1 to more efficiently and effectively provide

[[Page 45946]]

ongoing evidence-based professional development to personnel. The 
discussion on the use of technology in the background section of the 
notice was intended to highlight the fact that the introduction of new 
technologies (e.g., online project management tools, wikis for 
communication and collaboration, and Web cast programs) has greatly 
enhanced the capacity to provide ongoing professional development and 
that applicants should consider the use of these technologies to 
increase the efficiency and effectiveness of their professional 
development. However, applicants may propose to use the technologies 
that best suit their needs in providing more efficient and effective 
professional development.
    Changes: None.
    Comment: One commenter requested that the Department clarify the 
intent of the language in the background section of the notice of 
proposed priorities, published at 77 FR 22306 regarding the importance 
of high quality professional development to improve the skills of 
personnel who work with infants and toddlers. The commenter was 
concerned that this language focused the priority on the provision of 
professional development for early intervention and early childhood 
educators.
    Discussion: We believe that the language of the priority is clear 
and that no further clarification is needed. The purpose of Priority 1 
is to ensure that personnel possess the skills and knowledge necessary 
to address the early intervention, educational, and related services 
needs of infants, toddlers, and children with disabilities and is not 
intended to focus only on providers of early childhood or early 
intervention services. In addition, it is not necessary to change the 
background section because it is not included in the final priority.
    Changes: None.
    Comment: One commenter described the importance of providing 
professional development that helps school personnel become culturally 
competent.
    Discussion: OSEP agrees that providing professional development to 
help school personnel gain cultural competence is important. Under this 
priority, applicants may propose a project that helps school personnel 
serving children with disabilities to become culturally competent, 
provided the project is designed to improve professional development in 
this area through the use of evidence-based practices.
    Changes: None.

Proposed Priority 2--Targeting Teachers' Professional Development Needs 
Based on Student Growth

    Comment: One commenter expressed concern that using student growth 
data to determine professional development needs would exclude teachers 
whose responsibilities are not related to subjects that are part of the 
statewide assessment system. The commenter recommended that Priority 2 
allow for the use of other types of data, such as staff surveys, 
supervisory conferencing, and observations, to determine professional 
development needs.
    Discussion: The teacher evaluation systems implemented by States 
and LEAs use multiple measures of professional practice and student 
growth to determine performance levels and identify professional 
development needs. In particular, States and LEAs may use other 
measures of student learning in addition to the State's assessment data 
under the Elementary and Secondary Education Act of 1965, as amended 
(ESEA) (see the definition of ``student achievement'' in the 
Definitions section of this notice). For teachers of non-tested grades 
or subjects, alternative measures of student learning and performance 
can be used, such as student scores on pre-tests and end-of-course 
tests, student performance on English language proficiency assessments, 
and other measures of student achievement that are rigorous and 
comparable across schools. States and their LEAs may use other sources 
of data in addition to student growth data, as a part of their teacher 
evaluation system, to assist in determining professional development 
needs.
    Changes: None.
    Comment: One commenter approved of this priority because it 
encourages school personnel to analyze student performance data using 
objective measures to assess growth in student achievement. The 
commenter stated that these data could be useful at a school and 
district level for planning professional development and coaching. 
However, the commenter expressed concerns about student performance 
data being part of a teacher evaluation system, stating there is 
insufficient evidence to prove that teacher performance significantly 
affects student achievement.
    Discussion: We appreciate the comment; however, we disagree that 
there is no evidence demonstrating that teacher performance has an 
effect on student achievement. There is a substantial body of evidence 
that teacher performance significantly affects student achievement. 
Please see Chetty, Friedman, & Rockoff, 2011; Hanushek, 2010; Hanushek, 
2011; Hanushek & Rivkin, 2010; Kane & Staiger, 2008; Kane, Taylor, 
Tyler, & Wooten, 2010; Rockoff 2004.
    Changes: None.
    Comment: One commenter stated that there is no evidence that 
student growth can be effectively measured through an alternate 
assessment or testing with accommodations.
    Discussion: Under section 612(a)(16)(B) of the IDEA, States must 
develop guidelines for the provision of appropriate accommodations for 
students with disabilities, and those accommodations may not operate to 
invalidate test results. States must ensure that teachers and other 
staff know how to administer assessments, including how to use 
appropriate accommodations, for students with the most significant 
cognitive disabilities. Appropriate accommodations that do not 
interfere with the testing construct can serve as a component of a 
well-designed assessment system to measure student growth. In addition, 
an alternate assessment that meets established technical adequacy 
requirements for test reliability and validity can provide data that 
can be included as a component of a well-designed assessment system to 
measure student growth.
    The Department is currently funding the development of two 
alternate assessments for students with the most significant cognitive 
disabilities. The assessments will measure the knowledge and skills of 
those students against a common set of college- and career-ready 
content standards in mathematics and English language and will provide 
an accurate measure of student growth over a full academic year or 
course. These alternate assessments developed with General Supervision 
Enhancement Grants (GSEG) will permit the assessment of all eligible 
students with significant cognitive disabilities, and they will produce 
data (including student achievement data and student growth data) that 
can be used to inform (a) Determinations of school effectiveness; (b) 
determinations of individual principal and teacher effectiveness for 
purposes of evaluation; (c) determinations of principal and teacher 
professional development and support needs; and (d) teaching, learning, 
and program improvement.
    Changes: None.
    Comment: Multiple commenters shared concerns that their States 
would not be eligible for this priority because their data systems do 
not currently have the ability to link student performance to teacher 
performance.

[[Page 45947]]

    Discussion: The Department understands that some States and their 
LEAs may need time to make the changes in their data systems necessary 
to use student growth data for decision-making purposes. Accordingly, 
the Department has revised Priority 2 to provide greater flexibility 
for States currently in the planning or initial stages of implementing 
teacher evaluation systems.
    Revised Priority 2 will allow States to begin using the results 
from their teacher evaluation systems to identify the professional 
development needs of teachers of students with disabilities no later 
than the beginning of the third year of the grant's project period. To 
meet this priority, an applicant must include, as part of its 
application, a plan describing how it will use the results of teacher 
evaluation systems to identify the professional development needs of 
teachers of students with disabilities and the applicant's timeline for 
using the results. We believe it is important to have a competitive 
preference priority in this area to encourage States to build their 
capacity to use their evaluation systems to identify and better target 
the professional development needs of teachers of students with 
disabilities and help them to develop the knowledge and skills required 
to deliver evidence-based instruction.
    Changes: Priority 2 has been revised to allow States to begin using 
their evaluation system results to identify the professional 
development needs of teachers of students with disabilities no later 
than the beginning of the third year of the grant's project period 
rather than at the beginning of the project period.
    Comment: One commenter asked whether the teacher evaluation system 
must already be fully functional at the school, LEA, and State levels 
in order for the applicant to be eligible to receive competitive 
preference under this priority.
    Discussion: If LEAs have teacher evaluation systems that meet State 
guidelines, it would be appropriate for the SPDG project to work with 
these LEAs. As stated in the discussion in response to the previous 
comment, the State must be able to use teacher evaluation systems that 
take into account student growth as a significant factor in determining 
performance levels to identify professional development needs by the 
beginning of the third year of the grant.
    Changes: Priority 2 has been revised to allow States to begin using 
their evaluation system results to identify the professional 
development needs of teachers of students with disabilities no later 
than the beginning of the third year of the grant's project period 
rather than at the beginning of the project period.
    Comment: One commenter noted the difficulty in ascribing the 
performance of a student with disabilities to a particular teacher 
because the student will likely be served by multiple professionals 
(i.e., a regular education teacher, a special education teacher, and a 
related services provider).
    Discussion: While it can be difficult to ascribe the growth of 
students with disabilities to individual teachers, States are taking 
different approaches and working to ensure that their evaluation 
systems validly and reliably ascribe growth data to individual 
teachers. States and LEAs also have developed more sophisticated data 
systems that link teacher and student data and that are able to 
identify with more specificity the amount of time that teachers serve 
individual students.
    Changes: None.
    Comment: One commenter recommended that we provide in the priority 
that SPDG projects in States whose LEAs do not have teacher evaluation 
systems that take into account student growth (as defined in the 
notice) be allowed to establish these evaluation systems in order to 
determine teacher performance levels and target professional 
development to the specific needs of each of the teachers in 
participating schools or districts.
    Discussion: We do not believe that SPDG funds should be used to 
develop or implement systems to evaluate special education teachers 
using student growth data. States participating in the State Fiscal 
Stabilization Fund (SFSF) program committed to establishing 
longitudinal data systems that would have the ability to link data on 
students and teachers. Currently, 45 States have reported they have 
such a system in place. The remaining five participating States have 
until the end of 2013 to establish their systems. Also, many States 
committed to measuring student growth for particular teachers and 
linking those data back to teacher preparation programs. While we 
recognize the wide variation among States in the use of longitudinal 
and other data on student outcomes to evaluate teacher performance, 
especially special education teacher performance, and there is 
considerable work to be done, we do not think that SPDG funds should be 
used to match student and teacher data or to conduct teacher 
evaluations.
    Instead, these projects should focus on the use of teacher 
evaluation information to identify and address professional development 
needs. Under section 654(a) of the IDEA, funds could be used by 
projects to help LEAs to target their professional development, 
including identifying the type of professional development that would 
be most useful for their teachers. In addition, we encourage SPDG 
project staff to participate in State efforts to improve and expand 
evaluative systems to ensure their design facilitates the use of 
teacher performance information, which is linked to student outcome 
data, to identify special education teachers' professional development 
needs.
    Under section 654(b) of the IDEA, SPDG funds can be used for 
purposes other than professional development, such as developing and 
implementing mechanisms to assist LEAs and schools in effectively 
recruiting and retaining highly qualified special education teachers, 
and could potentially be used to enhance a State's teacher evaluation 
system that uses student growth data for students with disabilities. 
However, these funds should not be used by schools or districts to 
gather performance information or conduct evaluations of individual 
teachers.
    Changes: None.

Definitions

    Comment: Three commenters recommended that OSEP strengthen the 
definition of ``evidence-based practices'' to include causality and the 
demonstration of effect on student outcomes.
    Discussion: The definition of ``evidence-based practices'' was 
taken from the Department's notice of final supplemental priorities and 
definitions for discretionary grant programs, published in the Federal 
Register on December 15, 2010 (75 FR 78486), and corrected on May 12, 
2011 (76 FR 27637). OSEP appreciates the commenter's concerns, but the 
Department has developed the definition to be applicable to a broad 
range of programs, and it was previously the subject of public comment. 
Therefore, OSEP does not believe it is necessary to alter the 
definition in this notice.
    Changes: None.
    Comment: Two commenters recommended that OSEP strengthen its 
definition of ``fidelity'' and stated that fidelity to the components 
of a practice or program is key to improving student outcomes.
    Discussion: Although we agree with the commenters that fidelity to 
the components of a program or practice is key to improving student 
outcomes, we believe that the current definition is sufficient in this 
regard. In the NPP, we

[[Page 45948]]

explained that we based the proposed definition of ``fidelity'' on a 
definition that is widely accepted in the field (Gresham, MacMillan, 
Boebe-Frankenberger, & Bocian, 2000), and we believe this definition is 
sufficient for the purposes of this program.
    Changes: None.
    Comment: Two commenters recommended that OSEP change the definition 
of ``student achievement'' to ensure that student achievement data is 
comparable not only across schools but also across districts within a 
State.
    Discussion: The definition of ``student achievement'' is taken from 
the Department's notice of final supplemental priorities and 
definitions for discretionary grant programs, published in the Federal 
Register on December 15, 2010 (75 FR 78486), and corrected on May 12, 
2011 (76 FR 27637). The Department has developed this definition to be 
applicable to a broad range of programs, and it was previously the 
subject of public comment. To be consistent with the definition being 
used across the Department, we are using this definition without 
change.
    Changes: None.

Final Priorities

Priority 1--Effective and Efficient Delivery of Professional 
Development

    The Assistant Secretary for Special Education and Rehabilitative 
Services establishes a priority to assist SEAs in reforming and 
improving their systems for personnel (as that term is defined in 
section 651(b) of the IDEA) preparation and professional development of 
individuals providing early intervention, educational, and transition 
services in order to improve results for children with disabilities.
    In order to meet this priority an applicant must demonstrate in the 
SPDG State Plan it submits as part of its application under section 
653(a)(2) of the IDEA that its proposed project will--
    (1) Use evidence-based (as defined in this notice) professional 
development practices that will increase implementation of evidence-
based practices and result in improved outcomes for children with 
disabilities;
    (2) Provide ongoing assistance to personnel receiving SPDG-
supported professional development that supports the implementation of 
evidence-based practices with fidelity (as defined in this notice); and
    (3) Use technology to more efficiently and effectively provide 
ongoing professional development to personnel, including to personnel 
in rural areas and to other populations, such as personnel in urban or 
high-need LEAs (as defined in this notice).

Priority 2--Targeting Teachers' Professional Development Needs Based on 
Student Growth

    The Assistant Secretary establishes a priority for projects that 
are designed to provide professional development targeted to meet 
specific needs of teachers identified by teacher evaluation systems 
that take into account student growth (as defined in this notice) as a 
significant factor in determining performance levels.
    To meet this priority, an applicant must include, as part of its 
application, a plan describing how it will use the results of teacher 
evaluation systems to identify the professional development needs of 
teachers of students with disabilities to ensure that such teachers 
develop the knowledge and skills required to deliver evidence-based 
instruction to students with disabilities. The teacher evaluation 
systems used to make these determinations must be based on student 
growth in significant part, and must include students with 
disabilities.
    The plan must describe the applicant's timeline for using the 
results of evaluation systems to identify the professional development 
needs of teachers of students with disabilities. Under this timeline, 
the applicant must begin using the evaluation system results to 
identify the professional development needs of teachers of students 
with disabilities no later than the beginning of the third year of the 
grant's project period.

Types of Priorities

    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).

Final Definitions

    The Assistant Secretary establishes the following definitions for 
this program. We may apply one or more of these definitions in any year 
in which this program is in effect.
    Evidence-based refers to practices for which there is strong 
evidence or moderate evidence of effectiveness.
    Fidelity means the delivery of instruction in the way in which it 
was designed to be delivered.
    High-need LEA means, in accordance section 2102(3) of the 
Elementary and Secondary Education Act of 1965, as amended (ESEA), an 
LEA--
    (a) That serves not fewer than 10,000 children from families with 
incomes below the poverty line (as that term is defined in section 
9101(33) of the ESEA), or for which not less than 20 percent of the 
children served by the LEA are from families with incomes below the 
poverty line; and
    (b) For which there is (1) a high percentage of teachers not 
teaching in the academic subjects or grade levels that the teachers 
were trained to teach; or (2) a high percentage of teachers with 
emergency, provisional, or temporary certification or licensing.
    Student achievement means--
    (a) For tested grades and subjects: (1) A student's score on the 
State's assessments under the ESEA; and, as appropriate, (2) other 
measures of student learning, such as those described in paragraph (b) 
of this definition, provided they are rigorous and comparable across 
schools.
    (b) For non-tested grades and subjects: alternative measures of 
student learning and performance, such as student scores on pre-tests 
and end-of-course tests; student performance on English language 
proficiency assessments; and other measures of student achievement that 
are rigorous and comparable across schools.
    Student growth means the change in student achievement (as defined 
in this notice) for an individual student between two or more points in 
time.
    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 and 
definitions, we invite applications through a notice in the Federal 
Register.

[[Page 45949]]

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, 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 set forth 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 and definitions 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 have also 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.
    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) by contacting the Grants and Contracts 
Services Team, U.S. Department of Education, 400 Maryland Avenue SW., 
room 5075, PCP, Washington, DC 20202-2550. Telephone: (202) 245-7363. 
If you use a TDD or a TTY, call the FRS, toll free, at 1-800-877-8339.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
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    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: July 30, 2012.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2012-18907 Filed 8-1-12; 8:45 am]
BILLING CODE 4000-01-P
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