[Federal Register Volume 86, Number 129 (Friday, July 9, 2021)]
[Rules and Regulations]
[Pages 36220-36222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14712]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2020-OESE-0199]


Final Priority and Definition--Teacher and School Leader 
Incentive (TSL) Program

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

ACTION: Final priority and definition.

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SUMMARY: The Department announces one priority and one definition under 
the Teacher and School Leader Incentive Program (TSL), Assistance 
Listing Number 84.374A. The Department may use this priority and 
definition for competitions in fiscal year (FY) 2021 and later years. 
We take this action to make program improvements based on lessons 
learned over the last decade and to improve program outcomes.

DATES: The priority and definition are effective August 9, 2021.

FOR FURTHER INFORMATION CONTACT: Orman Feres, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3C124, Washington, DC 20202. 
Telephone: (202) 453-6921. Email: <a href="/cdn-cgi/l/email-protection#aec1dcc3cfc080c8cbdccbddeecbca80c9c1d8"><span class="__cf_email__" data-cfemail="9ef1ecf3fff0b0f8fbecfbeddefbfab0f9f1e8">[email protected]</span></a>.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: The purpose of TSL is to assist States, local 
educational agencies (LEAs), and nonprofit organizations to develop, 
implement, improve, or expand comprehensive performance-based 
compensation systems (PBCS) or human capital management systems (HCMS) 
for

[[Page 36221]]

teachers, principals, and other school leaders (educators) (especially 
educators in High-Need Schools who raise student academic achievement 
and close the achievement gap between high- and low-performing 
students). In addition, a portion of TSL funds may be used to study the 
effectiveness, fairness, quality, consistency, and reliability of such 
systems.
    Program Authority: Sections 2211-2213 of the Elementary and 
Secondary Education Act of 1965, as amended (ESEA), 20 U.S.C. 6631-
6633.
    A notice of proposed priorities (NPP) for this program was 
published in the Federal Register on April 9, 2021 (86 FR 18519). The 
NPP contained background information and our reasons for proposing the 
priority and definition.
    Except for minor editorial and technical revisions, there are no 
differences between the proposed priority and definition and the final 
priority and definition.
    Public Comment: In response to our invitation in the NPP, two 
comments were received, neither of which were relevant to the proposed 
priority and definition. The Secretary appreciates the public's 
interest in this program and the comments received in response to the 
NPP. However, we do not address general comments that raise concerns 
not directly related to the NPP.

Final Priority

    High-Need Schools.
    Under this priority, eligible applicants must concentrate proposed 
activities on teachers, principals, or other school leaders serving in 
High-Need Schools.
    In order to demonstrate that the TSL project is concentrated in 
High-Need Schools, the applicant must--
    (a) Provide the requested data in paragraph (c) of this priority to 
demonstrate that at least the majority of the schools participating in 
the proposed project are High-Need Schools and describe how the TSL-
assisted grant activities are focused on those schools;
    (b) Include a list of all schools in which the proposed TSL-funded 
project would be implemented and indicate which schools are High-Need 
Schools; and
    (c) Provide the most recently available school-level data 
supporting each school's designation as a High-Need School.
    Types of Priorities:
    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).

Final Definition

    The Assistant Secretary establishes the following definition for 
this program. We may apply this definition in any year in which this 
program is in effect.
    High-Need School means a school with 50 percent or more of its 
enrollment from low-income families as calculated using--
    (1) The number of children eligible for a free or reduced-price 
lunch under the National School Lunch Program (NSLP) (or, if an LEA 
does not participate in the NSLP, comparable data from another source 
such as a survey);
    (2) If an LEA has one or more schools that participate in the 
Community Eligibility Provision (CEP) of the NSLP, for any of its 
schools (i.e., CEP and non-CEP schools), the method in paragraph (1) of 
this definition or an alternative method approved by the Department; 
and
    (3) For middle and high schools, data from feeder schools that can 
establish that the middle or high school is a High-Need School under 
paragraph (1) or (2) of this definition.
    This document does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

    Note: This document does not solicit applications. In any year 
in which we choose to use this priority and definition, we invite 
applications through a notice in the Federal Register.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is ``significant'' 
and, therefore, subject to the requirements of the Executive order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
a ``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This 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

[[Page 36222]]

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 this final priority and definition only on a 
reasoned determination that their benefits justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that maximize net benefits. Based on the analysis that 
follows, the Department believes that this regulatory action is 
consistent with the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    The Department believes that this regulatory action will not impose 
significant costs on eligible entities, whose participation in our 
programs is voluntary, and costs can generally be covered with grant 
funds. As a result, the priority and definition will not impose any 
particular burden except when an entity voluntarily elects to apply for 
a grant. The benefits of the priority and definition will outweigh any 
associated costs because they will help ensure that the Department's 
TSL grant program selects high-quality applicants to implement 
activities that are designed to address High-Need Schools.
    Regulatory Flexibility Act Certification: The Secretary certifies 
that this regulatory action does not have a significant economic impact 
on a substantial number of small entities. The U.S. Small Business 
Administration Size Standards define proprietary institutions as small 
businesses if they are independently owned and operated, are not 
dominant in their field of operation, and have total annual revenue 
below $7,000,000. Nonprofit institutions are defined as small entities 
if they are independently owned and operated and not dominant in their 
field of operation. Public institutions are defined as small 
organizations if they are operated by a government overseeing a 
population below 50,000.
    The small entities that this regulatory action would affect are 
school districts, nonprofit organizations, and for-profit 
organizations. Of the impacts we estimate accruing to grantees or 
eligible entities, all are voluntary and related mostly to an increase 
in the number of applications prepared and submitted annually for 
competitive grant competitions. Therefore, we do not believe that the 
priority and definition would significantly impact small entities 
beyond the potential for increasing the likelihood of their applying 
for, and receiving, competitive grants from the Department.
    Paperwork Reduction Act of 1995: The priority and definition 
contain information collection requirements that are approved by OMB 
under OMB control number 1810-0758; the priority and definition do not 
affect the currently approved data collection. An FY 2021 competition 
would require applicants to complete and submit an application for 
Federal assistance using Department standard application forms. As a 
part of the application submission, respondents, who are LEAs, State 
educational agencies, the Bureau of Indian Education, nonprofit or for-
profit organizations, or a combination thereof, will submit information 
demonstrating that each school included in the TSL-assisted project is 
a High-Need school. We estimate that for the FY 2021 TSL competition 
and later competitions, each applicant will spend approximately 87 
hours of staff time to address the priority and definition. Based on 
the number of applications the Department received in the FY 2020 TSL 
competition, we expect to receive approximately 100 applications for 
these funds. The total number of hours for all expected applicants to 
address this priority and definition is an estimated 8,700 hours.
    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: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at: www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Ian Rosenblum,
Deputy Assistant Secretary for Policy and Programs Delegated the 
Authority to Perform the Functions and Duties of the Assistant 
Secretary, Office of Elementary and Secondary Education.
[FR Doc. 2021-14712 Filed 7-8-21; 8:45 am]
BILLING CODE 4000-01-P


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