[Federal Register Volume 74, Number 157 (Monday, August 17, 2009)]
[Notices]
[Pages 41402-41406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19662]


-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

[Docket ID ED-2009-OESE-0011]
RIN 1810-AB05


American Recovery and Reinvestment Act of 2009 (ARRA); Title I, 
Part A of the Elementary and Secondary Education Act of 1965, as 
Amended (ESEA); Part B, Section 611 of the Individuals With 
Disabilities Education Act (IDEA)

AGENCY: Office of Elementary and Secondary Education; Office of Special 
Education and Rehabilitative Services, U.S. Department of Education.

ACTION: Notice of proposed adjustments to statutory caps on State 
administration.

-----------------------------------------------------------------------

SUMMARY: The U.S. Secretary of Education (Secretary) proposes to adjust 
the statutory caps on State administration under Title I, part A of the 
Elementary and Secondary Education Act of 1965, as amended (Title I, 
part A), and part B, section 611 of the Individuals with Disabilities 
Education Act (IDEA) with respect to funds available for those programs 
under the American Recovery and Reinvestment Act of 2009 (ARRA), Public 
Law 111-5. The proposed adjustments would allow State educational 
agencies (SEAs) to reserve State administrative funds from their fiscal 
year (FY) 2009 ARRA allocations under Title I, part A and section 611 
of IDEA to help defray the costs of data collections that are 
specifically related to ARRA funding for these programs (including, for 
Title I, part A, data collection related to waivers). This notice only 
affects administrative costs for data collection under Title I, part A 
and IDEA section 611; for costs associated with other ARRA data 
collections, SEAs may use a portion of the State's Government Services 
grant under the State Fiscal Stabilization Funds or funds allowable for 
that purpose under individual programs.

[[Page 41403]]


DATES: We must receive your comments on or before September 16, 2009.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time in order to ensure that we do not receive duplicate copies. In 
addition, please include the Docket ID and the term ``State 
Administration'' at the top of your comments.
     Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information 
on using Regulations.gov, including instructions for accessing agency 
documents, submitting comments, and viewing the docket, is available on 
the site under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed adjustments, address 
them to Dr. Zollie Stevenson, Jr., U.S. Department of Education, 400 
Maryland Avenue, SW., Room 3W230, Washington, DC 20202-7241.
     Privacy Note: The Department's policy for comments 
received from members of the public (including those comments submitted 
by mail, commercial delivery, or hand delivery) is to make these 
submissions available for public viewing in their entirety on the 
Federal eRulemaking Portal at http://www.regulations.gov. Therefore, 
commenters should be careful to include in their comments only 
information that they wish to make publicly available on the Internet.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.

FOR FURTHER INFORMATION CONTACT: Dr. Zollie Stevenson, Jr., Telephone: 
(202) 260-0826 or by e-mail: [email protected].

SUPPLEMENTARY INFORMATION: Invitation To Comment: We invite you to 
submit comments regarding this notice. To ensure that your comments 
have maximum effect in developing the final notice, we urge you to 
identify clearly the specific proposed provision that each comment 
addresses.
    We invite you also to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
adjustments. Please let us know of any further ways we could reduce 
potential costs or increase potential benefits while preserving the 
effective and efficient administration of these programs.
    During and after the comment period, you may inspect all public 
comments about this notice by accessing Regulations.gov. You may also 
inspect the comments in person, in Room 3W100, 400 Maryland Avenue, 
SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., 
Washington, DC time, Monday through Friday of each week except Federal 
holidays.
    Assistance To Individuals With Disabilities in Reviewing the 
Rulemaking Record: On request, we will provide an appropriate 
accommodation or auxiliary aid to an individual with a disability who 
needs assistance to review the comments or other documents in the 
public rulemaking record for this notice. If you want to schedule an 
appointment for this type of accommodation or auxiliary aid, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Purpose of Programs: The ARRA provides billions of dollars in new 
funding for education in order to ``jump-start'' school reform efforts 
and to serve special populations while also saving and creating jobs 
and stimulating the economy. In particular, the ARRA provides $10 
billion in new funding under Title I, part A and $11.3 billion in new 
funding under IDEA part B, section 611. Title I, part A provides 
assistance through SEAs to local educational agencies (LEAs) and 
schools with high concentrations of students from families that live in 
poverty to strengthen teaching and learning for students at risk of 
failing to meet State academic achievement standards and to close the 
achievement gap. Section 611 of IDEA provides funds through SEAs to 
LEAs to help them ensure that children with disabilities, from ages 
three through 21, have access to a free appropriate public education to 
meet each child's unique needs and prepare each child for further 
education, employment, and independent living.
    Program Authority: Division A, Title XV, section 1552 of the 
American Recovery and Reinvestment Act of 2009, Public Law 111-5; 20 
U.S.C. 6301 et seq. (Title I, part A); 20 U.S.C. 1400 et seq. (IDEA 
section 611).

Background

    Section 1552 of the ARRA authorizes the Secretary, after following 
the notice and comment rulemaking requirements under the Administrative 
Procedure Act (5 U.S.C. 500), to ``reasonably adjust applicable limits 
on administrative expenditures for Federal awards to help [States] 
defray the costs of data collection requirements initiated pursuant to 
[the ARRA].'' Both Title I, part A and section 611 of IDEA, programs 
that received significant funding increases through the ARRA, have caps 
on the amount of funds for State administration that an SEA may reserve 
from its allocations for these programs.
    Specifically, section 1004(b) of the ESEA restricts the amount of 
funds an SEA may reserve for State administration from its Title I, 
part A allocation to no more than one percent of the amount the SEA 
would receive under Title I, part A, if $14 billion were appropriated 
for parts A, C, and D of Title I (with any SEA whose amount under 
section 1004(b) would be less than $400,000 permitted to reserve up to 
$400,000). The total amount appropriated in FY 2009 exceeds $14 
billion, triggering this cap. Similarly, section 611(e)(1) of IDEA 
restricts the amount of funds an SEA may reserve for administration of 
the program to not more than the maximum amount the SEA was eligible to 
reserve for FY 2004 or $800,000 (adjusted annually for inflation), 
whichever is greater. (The Secretary is not proposing an adjustment to 
the cap on State administration under section 619 of IDEA because, 
under section 619(e) of IDEA, the Department has concluded that the 
ARRA appropriation for section 619 results in a sufficient increase in 
the amount an SEA may reserve for State administration under that 
program.)
    The ARRA imposes a number of specific data collection and reporting 
requirements on an SEA that substantially increase its data burden in 
administering Title I, part A and IDEA section 611. Specifically, the 
ARRA data collection requirements affecting Title I, part A include, 
but are not limited to, the following:
     Each LEA that receives Title I, part A ARRA funds must 
provide to its SEA, by December 1, 2009, a school-by-school listing of 
per-pupil education expenditures from State and local sources during 
school year 2008-09. The SEA, in turn, must submit this information to 
the Department by March 31, 2010. This is a new data collection, as 
most SEAs do not currently collect this school-level information from 
their LEAs.
     Under section 1512 of the ARRA, an SEA must report, on a 
quarterly basis, specific information regarding its obligation and use 
of Title I, part A ARRA funds.
     Under 2 CFR 176.210, an SEA and its LEAs must track Title 
I, part A ARRA funds separately from their regular FY 2009 allocations, 
which will necessitate

[[Page 41404]]

increased data management and collection.
     An SEA will likely assume increased administrative 
responsibilities in a number of other areas related to ARRA data 
collection activities, including the following:
    [cir] Providing guidance to LEAs regarding ARRA data quality, and 
monitoring the quality of the ARRA data that LEAs must provide.
    [cir] Data collection related to monitoring and auditing LEAs' use 
of Title I, part A ARRA funds.
    [cir] Submitting requests for waivers of Title I, part A 
requirements related to ARRA funds.
    [cir] Collecting data to address the criteria involving Title I, 
part A for ``Race to the Top'' submissions and other activities.
    [cir] Supporting data collection activities affecting Title I, part 
A ARRA funds and ARRA School Improvement Grants under section 1003(g) 
of the ESEA.
    [cir] Addressing additional data collection requirements that could 
affect Title I, part A ARRA funds.
    Similarly, the ARRA data collection requirements affecting the 
programs funded through section 611 of IDEA include, but are not 
limited to, the following:
     Under section 1512 of the ARRA, an SEA must report, on a 
quarterly basis, specific information regarding its obligation and use 
of IDEA section 611 ARRA funds.
     Under 2 CFR 176.210, an SEA and its LEAs must track IDEA, 
section 611 ARRA funds separately from their regular FY 2009 
allocations, which will necessitate increased data management and 
collection.
     An SEA will likely assume increased administrative 
responsibilities in a number of other areas related to ARRA data 
collection activities, including the following:
    [cir] Providing guidance to LEAs regarding ARRA data quality and 
monitoring the quality of the ARRA data that LEAs must provide.
    [cir] Data collection related to monitoring and auditing LEAs' use 
of IDEA section 611 ARRA funds.
    [cir] Addressing additional data collection requirements that could 
affect the programs funded under section 611 of IDEA.
    The ARRA includes additional data requirements that an SEA must 
implement under Title I, part A and IDEA section 611 that Congress 
could not have contemplated when initially establishing the 
administrative caps for both of these programs. In the absence of the 
ARRA, an SEA already has many responsibilities for ensuring that its 
LEAs carry out their Title I, part A and IDEA section 611 programs 
properly in order to achieve program goals and follow program 
requirements that require expending administrative funds in order to 
ensure that programs are carried out effectively. Similarly, the new 
ARRA responsibilities related to data collection also will require an 
SEA to expend administrative resources.
    In recognition of these additional ARRA administrative 
responsibilities that an SEA will assume, pursuant to his authority in 
section 1552 of the ARRA, the Secretary is proposing in this notice to 
adjust the caps on State administration under Title I, part A and 
section 611 of IDEA to help an SEA defray the costs of implementing the 
data collection requirements that are associated with the ARRA.
    We note that the proposed adjustments reflect the Department's 
intention to provide SEAs with additional administrative funds to help 
them meet ARRA data collection requirements without substantially 
diminishing Title I, part A and IDEA section 611 resources at the LEA 
level. The Department's proposal for Title I, part A and IDEA section 
611 is based on a percentage of the amount each SEA receives under each 
of these programs through the ARRA. We arrived at the proposed 
percentages, floors and ceilings following consultations with staff in 
several SEAs, our own experience with data collections, a review of the 
ARRA data collection requirements, and consideration of the amounts 
SEAs can currently reserve for administration under both programs.
    The proposal includes (1) A floor to the amount that could be 
adjusted that would enable SEAs, on average, to add at least the 
equivalent of one additional full-time-equivalent (FTE) employee for 
each program, and (2) a ceiling that, although limiting the amount that 
could be adjusted, would enable SEAs, on average, to add ten FTEs for 
Title I, part A and five FTEs for IDEA section 611. The Department is 
proposing a higher percentage for Title I, part A than IDEA section 611 
because there are more ARRA-related data collection activities 
associated with Title I, part A.

Proposed Adjustments

Title I, Part A:

    Notwithstanding section 1004(b) of the ESEA and 34 CFR 
200.100(b)(3), the Secretary proposes under Title I, part A to:
    1. Provide administrative funds to support ARRA data collection 
excluding data collection for obtaining and implementing Title I, part 
A waivers related to the ARRA and maintenance of effort. The Secretary 
proposes to adjust the statutory cap on State administration under 
section 1004(b) of the ESEA to permit an SEA to reserve, from its FY 
2009 Title I, part A allocation, an amount equal to or less than the 
figure shown for the SEA in Column 2 in Table 1 to help defray the 
costs associated with Title I, part A ARRA data collection. The amount 
shown in Column 2 for each State is equal to .3 percent of the portion 
of the State's FY 2009 Title I, part A allocation attributable to the 
ARRA, or $600,000, whichever is less.\1\ A State's amount in Column 2 
is $100,000 if .3 percent of the State's Title I, part A ARRA 
allocation is less than $100,000.
---------------------------------------------------------------------------

    \1\ The U.S. Department of Education's budget page [available at 
http://www.ed.gov/about/overview/budget/statetables/10stbyprogram.pdf] shows the amount each State received in Title I, 
Part A ARRA funds.
---------------------------------------------------------------------------

    2. Provide administrative funds to support ARRA data collection 
including data collection for obtaining and implementing Title I, part 
A waivers related to the ARRA and maintenance of effort. The Secretary 
proposes to allow an SEA that requests and receives a waiver under 
section C (Waivers related to Title I, part A ARRA Funds) or section E 
(Waivers of Maintenance of Effort for LEAs) of the Department's Non-
Regulatory Guidance on Title I, part A Waivers \2\ (Title I, part A 
Waiver Guidance) to reserve a larger amount of additional 
administrative funds than it would otherwise be permitted to reserve. 
Specifically, in this case, the Secretary proposes to permit an SEA to 
reserve, from its FY 2009 Title I, part A allocation, an amount equal 
to or less than the figure shown for the State in Column 3 in Table 1. 
These funds can help defray the costs associated with Title I, part A 
ARRA data collection, including additional data collection costs that 
an SEA may incur in processing requests from its LEAs that wish to 
benefit from the SEA's waiver. These additional resources also should 
provide the SEA with an incentive to use the process for obtaining 
waivers outlined in the Title I, part A Waiver Guidance.
---------------------------------------------------------------------------

    \2\ The guidance provides comprehensive information on how to 
request a waiver of specific statutory and regulatory provisions of 
Title I, part A and is available at [http://www.ed.gov/programs/titleiparta/title-i-waiver.doc].
---------------------------------------------------------------------------

    The amount shown in Column 3 for each State is equal to .5 percent 
of the portion of the State's FY 2009 Title I, part A allocation 
attributable to the ARRA, or $1,000,000, whichever is less. A State's 
amount in Column 3 is

[[Page 41405]]

$200,000 if .5 percent of the State's Title I, part A ARRA allocation 
is less than $200,000.
    The amount in Column 2 or 3 that each SEA may reserve, as proposed 
in this notice, is in addition to the amount the SEA is able to reserve 
for State administration under section 1004(b) of the ESEA.

    Note:  An SEA may only reserve additional funds for 
administration up to the amount shown in Column 3 if it has received 
a waiver from the Department under section C or E of the Title I, 
part A Waiver Guidance. An SEA that has not received such a waiver 
may only reserve additional funds for administration up to the 
amount shown in Column 2. (Each column represents a total; the 
amounts are not cumulative.)


                       Table 1--(Title I, Part A)
------------------------------------------------------------------------
                                          Column 2          Column 3
                                       (Administrative   (Administrative
                                       funds for ARRA    funds for ARRA
              Column 1                 data collection   data collection
                                       excluding data    including data
                                       collection for    collection for
                                          waivers)*         waivers*
------------------------------------------------------------------------
Alabama.............................          $488,908          $814,846
Alaska..............................           100,000           200,000
Arizona.............................           585,262           975,437
Arkansas............................           333,276           555,461
California..........................           600,000         1,000,000
Colorado............................           333,408           555,680
Connecticut.........................           212,143           353,571
Delaware............................           100,000           200,000
District Of Columbia................           112,807           200,000
Florida.............................           600,000         1,000,000
Georgia.............................           600,000         1,000,000
Hawaii..............................           100,000           200,000
Idaho...............................           104,867           200,000
Illinois............................           600,000         1,000,000
Indiana.............................           506,031           843,385
Iowa................................           154,491           257,485
Kansas..............................           212,604           354,340
Kentucky............................           466,044           776,739
Louisiana...........................           531,470           885,784
Maine...............................           111,553           200,000
Maryland............................           407,875           679,792
Massachusetts.......................           491,041           818,401
Michigan............................           600,000         1,000,000
Minnesota...........................           284,133           473,555
Mississippi.........................           398,665           664,442
Missouri............................           443,185           738,642
Montana.............................           103,950           200,000
Nebraska............................           143,427           239,045
Nevada..............................           210,378           350,631
New Hampshire.......................           100,000           200,000
New Jersey..........................           548,914           914,856
New Mexico..........................           242,410           404,017
New York............................           600,000         1,000,000
North Carolina......................           600,000         1,000,000
North Dakota........................           100,000           200,000
Ohio................................           600,000         1,000,000
Oklahoma............................           328,328           547,213
Oregon..............................           281,207           468,678
Pennsylvania........................           600,000         1,000,000
Puerto Rico.........................           600,000         1,000,000
Rhode Island........................           107,503           200,000
South Carolina......................           428,517           714,195
South Dakota........................           103,950           200,000
Tennessee...........................           582,225           970,374
Texas...............................           600,000         1,000,000
Utah................................           148,609           247,681
Vermont.............................           100,000           200,000
Virginia............................           496,056           826,760
Washington..........................           405,369           675,615
West Virginia.......................           182,944           304,906
Wisconsin...........................           443,188           738,647
Wyoming.............................           100,000           200,000
------------------------------------------------------------------------
* For the purposes of this table, ``waivers'' refer to waivers described
  in section C or E of the Title I, part A Waiver Guidance that have
  been obtained by an SEA from the Department.


[[Page 41406]]

IDEA section 611:

    Notwithstanding section 611(c)(1) of IDEA and 34 CFR 300.704(a), 
the Secretary proposes to adjust the statutory cap on State 
administration to permit an SEA to reserve an amount from its FY 2009 
IDEA section 611 ARRA allocation equal to or less than the figure shown 
for such State in Column 2 in Table 2 to help defray the costs 
associated with ARRA data collection under IDEA section 611. The amount 
for each State shown in Column 2 is equal to .1 percent of the portion 
of the State's FY 2009 IDEA section 611 allocation attributable to the 
ARRA, or $500,000, whichever is less.\3\ A State's amount in Column 2 
is $100,000 if .1 percent of the State's IDEA section 611 ARRA 
allocation is less than $100,000. The amount each SEA may reserve, as 
proposed in this notice, is in addition to the amount the SEA is able 
to reserve for State administration under section 611(e)(1) of the 
IDEA.
---------------------------------------------------------------------------

    \3\ The U.S. Department of Education's budget page [available at 
http://www.ed.gov/about/overview/budget/statetables/10stbyprogram.pdf] shows the amount each State received in IDEA 
section 611 ARRA funds.

                        Table 2--IDEA Section 611
------------------------------------------------------------------------
                        Column 1                             Column 2
------------------------------------------------------------------------
Alabama.................................................        $181,865
Alaska..................................................         100,000
Arizona.................................................         178,476
Arkansas................................................         112,178
California..............................................         500,000
Colorado................................................         148,731
Connecticut.............................................         132,971
Delaware................................................         100,000
District Of Columbia....................................         100,000
Florida.................................................         500,000
Georgia.................................................         313,758
Hawaii..................................................         100,000
Idaho...................................................         100,000
Illinois................................................         500,000
Indiana.................................................         253,535
Iowa....................................................         122,095
Kansas..................................................         106,872
Kentucky................................................         157,570
Louisiana...............................................         188,750
Maine...................................................         100,000
Maryland................................................         200,242
Massachusetts...........................................         280,552
Michigan................................................         400,608
Minnesota...............................................         189,839
Mississippi.............................................         117,836
Missouri................................................         227,175
Montana.................................................         100,000
Nebraska................................................         100,000
Nevada..................................................         100,000
New Hampshire...........................................         100,000
New Jersey..............................................         360,691
New Mexico..............................................         100,000
New York................................................         500,000
North Carolina..........................................         314,410
North Dakota............................................         100,000
Ohio....................................................         437,736
Oklahoma................................................         147,925
Oregon..................................................         128,979
Pennsylvania............................................         427,178
Puerto Rico.............................................         109,098
Rhode Island............................................         100,000
South Carolina..........................................         173,240
South Dakota............................................         100,000
Tennessee...............................................         229,613
Texas...................................................         500,000
Utah....................................................         105,541
Vermont.................................................         100,000
Virginia................................................         281,415
Washington..............................................         221,357
West Virginia...........................................         100,000
Wisconsin...............................................         208,200
Wyoming.................................................         100,000
------------------------------------------------------------------------


    Note:  The proposed adjustments in this notice are based on 
funds available to each State under the ARRA and do not permit an 
SEA to increase the amount available for State administration from 
its regular FY 2009 Title I, part A allocation or its regular FY 
2009 IDEA section 611 allocation in excess of the respective 
statutory cap. Also, the adjustments in this notice to the amounts 
an SEA may reserve for administration under Title I, part A and IDEA 
section 611 do not apply to the reservation of funds for 
administration in subsequent years (i.e., Title I, part A and IDEA 
section 611 allocations for Federal Fiscal Year 2010 and beyond).

Executive Order 12866:

    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 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. Pursuant to the 
Executive order, the Secretary has determined that this regulatory 
action is significant under section 3(f)(4) of the Executive order.
    This notice has been reviewed in accordance with Executive Order 
12866. Under the terms of the order, we have assessed the potential 
costs and benefits of this proposed regulatory action and we have 
determined that the benefits of the proposed adjustments justify the 
costs.
    We have determined, also, that this proposed regulatory action does 
not unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    Regulatory Flexibility Act Certification: The Secretary certifies 
that this proposed regulatory action will not have a significant 
economic impact on a substantial number of small entities. The only 
entities affected by this proposed regulatory action are States, which 
are not considered small entities.
    Accessible Format: Individuals with disabilities may obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or computer diskette) on request to the program contact 
person listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: You may 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) on the 
Internet at the following site: http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note:  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 on GPO Access at: http://www.gpoaccess.gov/nara/index.html.


    Dated: August 12, 2009.
Arne Duncan,
Secretary of Education.
[FR Doc. E9-19662 Filed 8-14-09; 8:45 am]
BILLING CODE 4000-01-P