E9-19662. 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.

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: [phone] or by e-mail: [e-mail].

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 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:

○ Providing guidance to LEAs regarding ARRA data quality, and monitoring the quality of the ARRA data that LEAs must provide.

○ Data collection related to monitoring and auditing LEAs' use of Title I, part A ARRA funds.

○ Submitting requests for waivers of Title I, part A requirements related to ARRA funds.

○ Collecting data to address the criteria involving Title I, part A for “Race to the Top” submissions and other activities.

○ Supporting data collection activities affecting Title I, part A ARRA funds and ARRA School Improvement Grants under section 1003(g) of the ESEA.

○ 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:

○ Providing guidance to LEAs regarding ARRA data quality and monitoring the quality of the ARRA data that LEAs must provide.

○ Data collection related to monitoring and auditing LEAs' use of IDEA section 611 ARRA funds.

○ 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.

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.

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 $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 1	Column 2 (Administrative funds for ARRA data collection excluding data collection for waivers)*	Column 3 (Administrative funds for ARRA data collection including data collection for 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.

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.

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 [phone].

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.

Footnotes

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.  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].

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.