45944 Federal Register / Vol. 77, No. 149 / Thursday, August 2, 2012 / Rules and Regulations 

Hampshire Ave., Bldg. 66, rm. 3521, 

Silver Spring, MD 20993–0002. In 

addition, there will be available for 

inspection at each of the Food and Drug 

Administration district offices the same 

information for firms within the 

geographical area of such district 

offices. Upon request, verification of a 

registration number or location of a 

registered establishment will be 

provided. 

(b) The following listing information 

will not be available for public 

inspection or posted on the FDA Web 

site: 

(1) For contract manufacturers, 

contract sterilizers, and private label 

manufacturers, the proprietary or brand 

name(s) under which a device is 

marketed and the FDA-assigned 

premarket submission number, if this 

information would reveal a confidential 

business relationship; 

(2) FDA-assigned listing numbers. 

■ 17. Revise the heading of subpart C to 

read as set forth below: 

Subpart C—Procedures for Foreign 

Device Establishments 

■ 18. Amend § 807.40 by revising 

paragraphs (a) and (c) and by adding 

paragraph (d) to read as follows: 

§ 807.40 Establishment registration and 

device listing for foreign establishments 

importing or offering for import devices into 

the United States. 

(a) Any establishment within any 

foreign country engaged in the 

manufacture, preparation, propagation, 

compounding, or processing of a device 

that is imported or offered for import 

into the United States shall register such 

establishment and list such devices 

using the FDA electronic device 

registration and listing system in 

conformance with the procedures in this 

section, § 807.41, and subpart B of this 

part. The official correspondent for the 

foreign establishment shall facilitate 

communication between the foreign 

establishment’s management and 

representatives of FDA for matters 

relating to the registration of device 

establishments and the listing of device 

products. 

* * * * * 

(c) No device may be imported or 

offered for import into the United States 

unless it is the subject of a device listing 

as required under subpart B of this part 

and is manufactured, prepared, 

propagated, compounded, or processed 

at a registered foreign establishment; 

however, this restriction does not apply 

to devices imported or offered for 

import under the investigational use 

provisions of part 812 of this chapter. 

(d) The device establishment 

registration and device listing 

information shall be in the English 

language. 

■ 19. Add § 807.41 to subpart C to read 

as follows: 

§ 807.41 Identification of importers and 

persons who import or offer for import. 

(a) Upon initial registration, annually, 

and at the time of any changes, each 

foreign establishment required to 

register and list as provided in 

§ 807.40(a) must, using the FDA 

electronic device registration and listing 

system, submit the name, address, 

telephone and fax numbers, email 

address, and registration number, if any 

has been assigned, of any importer 

(defined in § 807.3(x)) of the 

establishment’s devices that is known to 

the foreign establishment. The foreign 

establishment must also specify which 

of the establishment’s listed products 

each importer receives from the foreign 

establishment. 

(b) Upon initial registration, annually, 

and at the time of any changes, each 

foreign establishment required to 

register and list as provided in 

§ 807.40(a) must, using the FDA 

electronic device registration and listing 

system, submit the name, address, 

telephone and fax numbers, email 

address, and registration number, if any 

has been assigned, of each person who 

imports or offers for import the 

establishment’s devices into the United 

States. The term ‘‘person who imports 

or offers for import,’’ which is defined 

in § 807.3(y), includes agents, brokers, 

or other parties used by the foreign 

establishment to facilitate the import of 

its device into the United States. 

(c) For each individual or 

organization identified by the foreign 

establishment under paragraphs (a) and 

(b) of this section, the foreign 

establishment must submit to FDA 

electronically the current FDA 

premarket submission number and any 

other identifying information that is 

known to the establishment for each 

device being imported or offered for 

import by the named individuals or 

organizations. 

Dated: July 27, 2012. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2012–18764 Filed 8–1–12; 8:45 am] 

BILLING CODE 4160–01–P 

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. 

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, 


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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 


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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 welldesigned 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. 


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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 decisionmaking 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 


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explained that we based the proposed 

definition of ‘‘fidelity’’ on a definition 

that is widely accepted in the field 

(Gresham, MacMillan, BoebeFrankenberger, & 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. 


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Federal Register / Vol. 77, No. 149 / Thursday, August 2, 2012 / Rules and Regulations 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 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 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: 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0866; FRL–9705–5] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Preconstruction 

Requirements-Prevention of 

Significant Deterioration and 

Nonattainment New Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving several 

revisions to the Maryland State 

Implementation Plan (SIP) submitted by 

the Maryland Department of the 

Environment (MDE). These revisions 

pertain to preconstruction requirements 

under the Prevention of Significant 

Deterioration (PSD) and non-attainment 

New Source Review (NSR) programs. 

The SIP revisions satisfy the following 

required SIP elements: NSR Reform, 

oxides of nitrogen (NOX) as a precursor 

to ozone, PM2.5, and Greenhouse Gases 

(GHGs). Additionally, EPA is approving, 

as a separate action, Maryland’s 

submittals for purposes of meeting the 

infrastructure requirements of the Clean 

Air Act (CAA) which relate to 


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