2010-17580. Waiver and Extension of Project Period

AGENCY:

Office of Innovation and Improvement.

ACTION:

Notice of waiver and extension of project period.

SUMMARY:

The Secretary waives the requirements in 34 CFR 75.261(c)(2) of the Education Department General Administrative Regulations (EDGAR), as they apply to projects funded under the DC School Choice Incentive Program (DC Choice program). This regulation generally prohibits any project period extensions involving the obligation of additional Federal funds. A waiver of this regulation would allow the one-year grant funded with fiscal year (FY) 2009 funds under the DC Choice Program to be continued beyond its original project period with FY 2010 funds. Additionally, this grantee will be able to receive additional Federal funds notwithstanding the limitation in 34 CFR 75.261(c)(2) that prohibits extension of a project period if it involves the obligation of additional Federal funds.

DATES:

This waiver and extension of project period are effective August 18, 2010.

FOR FURTHER INFORMATION CONTACT:

Anna Hinton, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W229, Washington, DC 20202. Telephone: [phone] or by e-mail: [e-mail].

If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Background

The DC Choice program, established under the DC School Choice Incentive Act of 2003 (Act), provides low-income parents residing in the District of Columbia (District) with an option to send their children to private schools. In FY 2009, the Department awarded a one-year competitive grant to an applicant to provide scholarships, for the 2009-2010 school year, to students who received them in the 2008-2009 school year. The notice inviting applications for new awards for the FY 2009 DC Choice Program grant competition was published in the Federal Register on July 6, 2009 (74 FR 31935).

Under the absolute priority established in that notice, funds awarded under the FY 2009 competition were permitted to be used only to award scholarships to students already participating in this program prior to FY 2009.^[1] The absolute priority was established to align with the instructions of Congress included in the Joint Explanatory Statement accompanying Public Law 111-8, the Omnibus Appropriations Act, 2009, that the Department use FY 2009 funds only to provide scholarships to currently enrolled program participants and not to enroll new participants. Further, the FY 2010 Appropriations Act provides that FY 2010 and prior-year funds may be used to provide scholarships in the 2010-2011 school year only to students who received scholarships in the 2009-2010 school year.

Waiver of 34 CFR 75.261(c)(2)

We are waiving the provisions of 34 CFR 75.261(c)(2) so that the current grantee may continue to receive additional funds to serve beyond the 2009-2010 school year students who are currently participating in the program. We are taking this action because we do not believe it would be in the public interest to hold a new competition under the DC Choice program for FY 2010 (and through FY 2011 provided that additional funds are appropriated under the DC Choice program) to serve these students through the time they graduate from high school.^[2] With the uncertainties presented by the absence of a future authority for this program, it would not be advisable to hold a competition for a project that would likely operate for only a short period of time, and serve a limited population. The grantee that received the award in the FY 2009 competition, Washington Scholarship Fund (WSF), has recently transferred the administration of the grant to the current grantee, the DC Children and Youth Investment Trust Corporation. WSF could not continue to administer the DC Choice Program beyond the 2009-2010 school year because it was unable to obtain the additional funding commitments necessary to serve the participating families and fulfill school oversight responsibilities. In order to receive this grant, the DC Children and Youth Investment Trust Corporation was required to submit to the Department for review, as part of the grant transfer agreement, a proposal that addressed the absolute priority and each selection criterion included in the original notice inviting applications for new awards for the FY 2009 DC Choice program grant competition published in the Federal Register on July 6, 2009 (74 FR 31935). The current grantee will request the FY 2010 continuation award.

Therefore, the Secretary is waiving the requirements in 34 CFR 75.261(c)(2), which limit the extension of a project period if the extension involves the obligation of additional Federal funds. With this waiver, we will not announce a new competition or make a new award under the DC Choice program in FY 2010. Rather, the requirements applicable to continuation awards for the current DC Choice grantee in 34 CFR 75.253 will apply to any continuation awards sought by the grantee.

The waiver of 34 CFR 75.261(c)(2) does not exempt the current DC Choice grantee from the account-closing provisions of 31 U.S.C. 1552(a), nor does it extend the availability of funds previously awarded to the current grantee. As a result of 31 U.S.C. 1552(a), appropriations available for a limited period may be used for payment of valid obligations for only five years after the expiration of their period of availability for Federal obligation. After that time, the unexpended balance of those funds is canceled and returned to the U.S. Treasury Department and is unavailable for restoration for any purpose.

Waiver of Rulemaking

Under the Administrative Procedure Act (5 U.S.C. 553) (APA) the Department generally offers interested parties the opportunity to comment on proposed regulations, including proposed waivers of its regulation in 34 CFR 75.261(c)(2). However, we are waiving the notice-and-comment requirements of the APA for this waiver because it would be impracticable and contrary to the public interest to delay the award of FY 2010 funds until after soliciting notice and comment on the waiver of this regulation. In order for current scholarship students to receive scholarships for the next school year, 2010-2011, the grantee must take a number of actions within the next 30 to 45 days, including verifying the eligibility of students' families for scholarships and verifying school eligibility for program participation. More specifically, the students must be determined to be eligible and enrolled in the participating schools for the upcoming school year as soon as possible. If current scholarship students are not enrolled soon, school leaders will not have the enrollment figures that are required to hire the appropriate number of teachers. These schools, therefore, would not have the resources to serve current scholarship students who attempt to enroll when the schools reopen in September 2010. In addition, a school will not enroll a current scholarship student whose eligibility for the program has not been verified. Enrolling a student who is later identified as ineligible would cause substantial financial duress for the school, and it would be detrimental to the student's education if the student is required to transfer to a new school once the school year has begun. For these reasons, it is imperative that the eligibility determinations begin immediately. Conducting notice and comment rulemaking would not allow the grantee or the schools to complete this work in the next 30 to 45 days. Accordingly, under 5 U.S.C. 553(b)(B), the Secretary has determined that notice and comment on the waiver is unnecessary and contrary to the public interest.

Regulatory Flexibility Act Certification

The Secretary certifies that this waiver will not have a significant economic impact on a substantial number of small entities.

The small entity that will be affected by this waiver is the FY 2009 grantee, the non-profit organization currently receiving Federal funds under the DC Choice program. The waiver will not have a significant economic impact on this entity because the waiver and the activities required to support the additional year(s) of funding will not impose excessive regulatory burdens or require unnecessary Federal supervision. The waiver will impose minimal requirements to ensure the proper expenditure of program funds, including requirements that are standard for continuation awards.

Paperwork Reduction Act of 1995

This notice of waiver does not contain any information collection requirements.

Intergovernmental Review

This program is subject to Executive Order 12372 and the regulations in 34 CFR 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.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents 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/​index.html.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site.

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.

(Catalog of Federal Domestic Assistance Number: 84.370ADC School Choice Incentive Program)

Program Authority: Consolidated Appropriations Act 2010, Pub. L. No. 111-117; DC Code §§ 38-1851.01-38-1851.11.

Dated: July 14, 2010.

James H. Shelton III,

Assistant Deputy Secretary for Innovation and Improvement.

Footnotes

1.  Funds are also permitted to be used for administrative and evaluation expenses.

2.  The President's 2011 budget requests funding for the program but states, “it is expected that this will be the final request for Federal funding to support the DC Opportunity Scholarship program,” and permits the use of funds appropriated in prior years for future school years until the current cohort participating in the program graduates.