Daily Rules, Proposed Rules, and Notices of the Federal Government
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The Budget Requirements, which can be found in section V of the
Sections 14005 and 14006, Division A, of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), as amended by section 1832(b) of Division B of Pub. L. 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011, and the Department of Education Appropriations Act, 2012 (Title III of Division F of Pub. L. 112-74, the Consolidated Appropriations Act, 2012) (hereafter “the Department of Education Appropriations Act, 2012”).
We published a notice of proposed requirements (NPR) for this program in the
There are two significant differences between the requirements proposed in the NPR and these final requirements. First, in this notice, the Departments have clarified that applicants may make reductions and adjustments in the activities in Core Area A(3)(a)(1), Core Area B, and Competitive Preference Priority 2 based on the 50 percent reduction in available Federal funding for Phase 2 of the RTT-ELC program. Second, the Departments are requiring applicants to explain any significant changes to the information provided in section (A)(1) that have occurred since submission of their FY 2011 applications, including updates to the information provided in tables 1-13 in section (A)(1) of their FY 2011 applications. These changes are described in greater detail below in the
A State is not permitted, however, to use Phase 2 RTT-ELC funds for activities that were not included in its FY 2011 application because the applications of the five eligible States were reviewed, scored, and ranked through the Departments' FY 2011 RTT-ELC peer review process. It would therefore be inappropriate to allow applicants to introduce new activities in place of those activities that were proposed in their FY 2011 applications.
The Departments will provide technical assistance to applicants on what constitutes a “new activity” rather than an adjustment to the scope of an activity included in a State's FY 2011 RTT-ELC application. For example, creating an entirely new project to address one of the selection criteria would be a new activity, while a change in the number of regions served or subgrants awarded would be an allowable adjustment. The adjustments may not significantly diminish the program's ability to improve access to high-quality early learning programs for children with high needs. In addition, when the scope of work is adjusted by targeting specific regions in a State, the activities must be consistent across those regions. In making these adjustments, the Departments strongly encourage eligible applicants to consider how to use other appropriate Federal, State, private, and local resources in order to maximize the impact of the investment of RTT-ELC funds. If we determine that a State's Phase 2 application proposes activities that were not included in its FY 2011 application, those activities will not be funded, and we will work with the State to make the necessary adjustments.
The Secretary announces the following requirements for Phase 2 of the RTT-ELC program. Except where otherwise indicated in these final requirements, the applicable final requirements and definitions of key terms from the notice inviting applications, published in the
(a) An application, consistent with its FY 2011 RTT-ELC application, that—
(1) Meets the application requirements described in the
(2) Provides the assurances described in the
(b) For review and approval by both Departments, a detailed plan and budget describing the activities selected from its FY 2011 RTT-ELC application that would be implemented with Phase 2 RTT-ELC funding, in accordance with the
We encourage eligible applicants to partner with each other and currently funded RTT-ELC grantees in carrying out specific activities (such as validation of a State's TQRIS, implementation of longitudinal data systems, or development of a kindergarten entry assessment). Each eligible applicant may apply for Phase 2 RTT-ELC awards individually or as a member of a consortium (with other eligible applicants) under 34 CFR 75.127-129. A consortium can be formed only with other eligible applicants and requires a single application. A partnership can be described in the application of an individual State or a consortium and can include eligible applicants as well as currently-funded grantees. In any event, an eligible applicant must propose activities for Phase 2 of the RTT-ELC program that are consistent with its FY 2011 RTT-ELC application.
(a) Each eligible applicant must describe how it would implement an organizational structure for managing the Phase 2 RTT-ELC grant that is consistent with the activities and commitments described in response to selection criterion A(3)(a)(1)
(b) In addition to addressing the requirements in paragraph (a) of this section, each eligible applicant must select and describe how it will implement activities that it identified in its FY 2011 RTT-ELC application in response to Focused Investment Areas C, D, or E. The eligible applicant must select activities from two or more of the three Focused Investment Areas C, D, and E, and the activities must be responsive to one or more of the selection criteria under the Focused Investment Areas chosen by the applicant. (Eligible applicants may implement additional activities proposed under more than one selection criterion within each Focused Investment Area.) In determining which selection criteria to address given the amount of available funds under Phase 2 of the RTT-ELC program, each eligible applicant must give consideration to those activities that will have the greatest impact on improving access to high-quality early learning programs for children with high needs.
In light of the reduced funding available, applicants may make adjustments in the scope of services provided to meet selection criteria in Core Area A(3)(a)(1), Core Area B, Competitive Preference Priority 2, and Focused Investment Areas C, D, and E. For example, an applicant may propose to serve fewer programs or regions of the State than it proposed to serve in its FY 2011 RTT-ELC application. The eligible applicant must provide a detailed explanation of its rationale for such adjustments and also must amend its targets in tables B(2)(c) and B(4)(c)(1-2) of the FY 2011 RTT-ELC application, as needed. The adjustments may not diminish the program's impact on improving access to high-quality early learning programs for children with high needs. In addition, if the scope of work is adjusted by targeting specific regions in the State, the activities must be consistent across regions. In making these adjustments, the Departments strongly encourage eligible applicants to consider how to use other appropriate Federal, State, private, and local resources to support their selected activities.
(c) In addition, each eligible applicant may implement the activities it proposed in response to the Invitational Priorities from its FY 2011 RTT-ELC application. Eligible applicants that wrote to Invitational Priority 2 are encouraged to enter into public-private partnerships to the extent that doing so would augment total funds available for carrying out the activities described in their FY 2011 RTT-ELC applications.
We encourage grantees to enter into consortia, where relevant, in order to maximize the use of available funds. Please refer to section (V)(b).
(d) The Departments will use Phase 2 RTT-ELC funding to support only those activities included in an eligible applicant's FY 2011 RTT-ELC application. Therefore, an eligible applicant must not include new activities in its Phase 2 RTT-ELC application.
(e) Each Phase 2 RTT-ELC application must include current signatures by the eligible applicant's Governor or an authorized representative signing on behalf of the Governor; an authorized representative from the eligible applicant's Lead Agency; and an authorized representative from each Participating State Agency.
(f) Each Phase 2 RTT-ELC application must include a newly-signed Memorandum of Understanding and a preliminary scope of work for each Participating State Agency.
(a) While the State may make appropriate adjustments to the scope, budget, timelines, and performance targets, consistent with the reduced amount of funding that is available under the Phase 2 RTT-ELC award process, the State will maintain consistency with the absolute priority and meet all program and eligibility requirements of the FY 2011 RTT-ELC competition.
(b) The State must update tables 1-5 from section (A)(1) of its FY 2011 application. In addition, if the State has made any significant changes to the commitments, financial investments, numbers of children served, legislation, policies, practices, or other key areas of the program described in section (A)(1) of its FY 2011 application, it must submit an explanation of those changes, including updates to tables 6-13 from section (A)(1) as needed.
The State will maintain, in a manner consistent with its updates to tables 1-13, its commitment to and investment in high-quality, accessible early learning and development programs and services for children with high needs, as described in section (A)(1) of its FY 2011 RTT-ELC application.
(c) Subject to adjustments due to the reduced amount of funding available under the Phase 2 RTT-ELC award process, the State will maintain its plan to establish strong participation and commitment by Participating State Agencies and other early learning and development stakeholders as described in Section A(3) of its FY 2011 RTT-ELC application.
(d) The State will maintain its commitment to integrating and aligning resources and policies across Participating State Agencies as described in Section A(3) of its FY 2011 RTT-ELC application.
(e) The State will comply with all of the accountability, transparency, and reporting requirements that applied to the FY 2011 RTT-ELC competition. (See the notice inviting applications for the FY 2011 RTT-ELC competition, published in the
(f) The State will comply with the requirements of any evaluation of the RTT-ELC program, or of specific activities it proposes to pursue as part of the program, conducted and supported by the Departments.
This notice does not solicit applications. In any year in which we choose to use one or more of these requirements, we invite applications through a notice in the
Under Executive Order 12866, the Secretaries 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 local 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 regulatory action will have an annual effect on the economy of more than $100 million because the amount of government transfers through the Phase 2 RTT-ELC award process exceeds that amount. Therefore, this action is “economically significant” and subject to review by OMB review under
The Departments have also reviewed these requirements 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 on 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 requirements 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 Departments believe these requirements are consistent with the principles in Executive Order 13563.
We have also determined that this regulatory action will not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In this regulatory impact analysis we discuss the need for regulatory action, the potential costs and benefits, net budget impacts, assumptions, limitations, and data sources, as well as regulatory alternatives we considered.
These requirements are needed to implement the Phase 2 RTT-ELC award process in the manner that the Departments believe will best enable the program to achieve its objectives—to create the conditions for effective reform in early learning systems in States that had high-scoring applications in the FY 2011 RTT-ELC competition but that did not receive funding in that competition, so that they can implement key elements of their comprehensive reform proposals submitted as part of their FY 2011 RTT-ELC competition applications.
Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action and have determined that these requirements will not impose significant additional costs to State applicants or the Federal Government. Most of the requirements contained in this notice involve re-affirming State commitments and plans already completed as part of the FY 2011 RTT-ELC competition or other Federal education programs. Similarly, other requirements, in particular those related to maintaining conditions for reform required under the FY 2011 RTT-ELC competition, require continuation of existing commitments and investments rather than the imposition of additional burdens and costs. The Departments believe those States that are eligible for Phase 2 awards will incur minimal costs in developing plans and budgets for implementing selected activities from their FY 2011 RTT-ELC competition proposals, because in most cases such planning will entail only revisions to existing plans and budgets already developed as part of the FY 2011 RTT-ELC application process and not the development and implementation of entirely new plans and budgets. In all cases, the Departments believe that the benefits resulting from the requirements for the Phase 2 RTT-ELC award process will exceed their costs.
An alternative to promulgation of these requirements would have been to use FY 2012 Race to the Top funds to make awards to the one or two highest scoring unfunded applications from the FY 2011 RTT-ELC competition and to use the remaining funds for the Race to the Top District competition to be held in FY 2012. We concluded that approximately $400 million in available FY 2012 funds is necessary to support a meaningful district-level competition.
Moreover, the Departments believe that simply funding the one or two highest scoring applicants that were not selected in the FY 2011 RTT-ELC competition would result in a missed opportunity to reward the efforts of other high-scoring applicants from that competition and to enable them to make meaningful progress on key elements of their State early learning plans.
As required by OMB Circular A-4 (available at
The Phase 2 RTT-ELC award process will provide approximately $133 million in competitive grants to eligible applicants (those five applicants that did not receive funding in the FY 2011 RTT-ELC competition, but which received approximately 75 percent or more of the available points under the competition).
These requirements have been determined to be a major rule for purposes of the Congressional Review Act (CRA) (5 U.S.C. 801, et seq.). Generally, under the CRA, a major rule takes effect 60 days after the date on which the rule is published in the
These final requirements are needed to implement the Phase 2 RTT-ELC program, authorized under Sections 14005 and 14006, Division A, of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), as amended by section 1832(b) of Division B of Public Law 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011, and the Department of Education Appropriations Act, 2012, which was signed into law on December 23, 2011. The Department must award funds under this authority to qualified applicants by December 31, 2012, or the funds will lapse. Even on an expedited timeline, it is impracticable for the Department to adhere to a 60-day delayed effective date for the final requirements and make grant awards to qualified applicants by the December 31, 2012 deadline. When the 60-day delayed effective date is added to the time the Department will need to receive applications (approximately 45 days), review the applications (approximately 21 days), and finally approve applications (approximately 28 days), the Department will not be able to award funds authorized under the Department of Education Appropriations Act, 2012 to applicants by December 31, 2012. The Department has therefore determined that, pursuant to section 808(2) of the CRA, the 60-day delay in the effective date generally required for congressional review is impracticable, contrary to the public interest, and waived for good cause.
These final requirements contain information collection requirements. However, because the eligible applicants for Phase 2 RTT-ELC awards are fewer than 10, these collections are not subject to approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3502(3)(A)(i)).
This document provides early notification of our specific plans and actions for this program.
You may also access documents of these Departments published in the