64194 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

DEPARTMENT OF EDUCATION (ED) 

Statement of Regulatory Priorities 

I. Introduction 

We support States, local communities, 

institutions of higher education, and 

others in improving education 

nationwide and in helping to ensure 

that all Americans receive a quality 

education. We provide leadership and 

financial assistance pertaining to 

education at all levels to a wide range 

of stakeholders and individuals 

including State educational agencies, 

early childhood programs, elementary 

and secondary schools, institutions of 

higher education, vocational schools, 

nonprofit organizations, members of the 

public, and many others. These efforts 

are helping to ensure that all students 

will be ready for college and careers, 

and that all students have an open path 

towards postsecondary education. We 

also vigorously monitor and enforce the 

implementation of Federal civil rights 

laws in education programs and 

activities that receive Federal financial 

assistance, and support innovation and 

research, evaluation, and dissemination 

of findings to improve the quality of 

education. 

Overall, the programs we administer 

will affect nearly every American during 

his or her life. Indeed, in the 2009-2010 

school year about 50 million students 

will attend an estimated 100,000 

elementary and secondary schools in 

approximately 13,900 public school 

districts, and about 19 million students 

will enroll in degree-granting 

postsecondary schools. All of these 

students may benefit from some degree 

of financial assistance or support from 

the Department. 

In developing and implementing 

regulations, guidance, technical 

assistance, and approaches to 

compliance related to our programs, we 

are committed to working closely with 

affected persons and groups. 

Specifically, we work with a broad 

range of interested parties and the 

general public including parents, 

students, and educators; State, local, 

and tribal governments; and 

neighborhood groups, schools, colleges, 

rehabilitation service providers, 

professional associations, advocacy 

organizations, businesses, and labor 

organizations. 

We also continue to seek greater and 

more useful public participation in our 

rulemaking activities through the use of 

transparent and interactive rulemaking 

procedures and new technologies. If we 

determine that it is necessary to develop 

regulations, we seek public 

participation at all key stages in the 

rulemaking process. We invite the 

public to submit comments on all 

proposed regulations through the 

Internet or by regular mail. 

To facilitate the public’s involvement, 

we participate in the Federal Docketing 

Management System (FDMS), an 

electronic single Governmentwide 

access point (www.regulations.gov) that 

enables the public to submit comments 

on different types of Federal regulatory 

documents and read and respond to 

comments submitted by other members 

of the public during the public comment 

period. This system provides the public 

the opportunity to submit a comment 

electronically on any notice of proposed 

rulemaking or interim final regulations 

open for comment, as well as read and 

print any supporting regulatory 

documents. 

We are continuing to streamline 

information collections, reduce the 

burden on information providers 

involved in our programs, and make 

information easily accessible to the 

public. 

II. Regulatory Priorities 

A. American Recovery and 

Reinvestment Act of 2009 

On February 17, 2009, President 

Obama signed into law the American 

Recovery and Reinvestment Act of 2009 

(ARRA), historic legislation designed to 

stimulate the economy, support job 

creation, and invest in critical sectors, 

including education. The ARRA lays the 

foundation for education reform by 

supporting investments in innovative 

strategies that are most likely to lead to 

improved results for students, long-term 

gains in school and school system 

capacity, and increased productivity 

and effectiveness. 

The ARRA provides funding for 

several key formula and discretionary 

grant programs for which the 

Department will be issuing final 

regulatory requirements in the next 

several months. These programs are as 

follows: 

1. Investing in Innovation Fund. The 

Investing in Innovation Fund, 

established under section 14007 of the 

ARRA, provides $650 million to 

support (a) local educational agencies 

(LEAs), and (b) nonprofit 

organizations in partnership with one 

or more LEAs or a consortium of 

schools. The purpose of the program 

is to provide competitive grants to 

applicants with strong track records 

in improving student achievement, in 

order to expand what works and 

invest in promising practices that 

significantly improve student 

achievement in kindergarten through 

grade 12, as well as help close 

achievement gaps, decrease drop-out 

rates, increase high school graduation 

rates, and improve the effectiveness of 

teachers and school leaders. 

2. School Improvement Grants. In 

conjunction with Title I funds for 

school improvement reserved under 

section 1003(a) of the Elementary and 

Secondary Education Act of 1965, as 

amended (ESEA), School 

Improvement Grants under section 

1003(g) of the ESEA are used to 

improve student achievement in Title 

I schools identified for improvement, 

corrective action, or restructuring in 

order to enable those schools to make 

adequate yearly progress and exit 

improvement status. Appropriations 

for School Improvement Grants have 

grown from $125 million in fiscal year 

(FY) 2007 to $546 million in FY 2009. 

The ARRA provides an additional $3 

billion for School Improvement 

Grants in FY 2009. The Department is 

finalizing requirements that will 

govern the total $3.546 billion in FY 

2009 school improvement funds. This 

unprecedented investment of Federal 

money has the potential to support 

implementation of fundamental 

changes needed to turn around some 

of the Nation’s lowest-achieving 

schools. 

3. Teacher Incentive Fund. The Teacher 

Incentive Fund, established in 2006, 

supports performance-based teacher 

and principal compensation systems 

in high-need schools, primarily 

through grants to school districts and 

consortia of school districts. The 

combined ARRA and FY 2009 

appropriation for this program is 

approximately $300 million. 

B. Elementary and Secondary 

Education Act of 1965, as Amended 

We look forward to congressional 

reauthorization of the ESEA that will 

build on many of the reforms States and 

LEAs will be implementing under the 

ARRA grant programs described above. 

As necessary, we intend to amend 

current regulations to reflect the 

reauthorization of this statute. In the 

interim we may propose other 

amendments to the current regulations. 

C. Student Aid and Fiscal 

Responsibility Act of 2009 

We expect Congress to enact, and 

appropriate funds for, several 

components of the President’s education 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64195 

agenda. The House passed H.R. 3221, 

the Student Aid and Fiscal 

Responsibility Act of 2009, in 

September, and the Senate is expected 

to move similar legislation this year. If 

the legislation is passed, we expect to 

propose regulations in the coming 

months to implement it. 

New Programs: The new programs 

included in the House bill that would 

require regulations include the 

following: 

• The College Access and Completion 

Fund, to build a Federal-State-local 

partnership to improve college 

success and completion, particularly 

for students from disadvantaged 

backgrounds. 

• The American Graduation Initiative, 

to promote innovations and reforms 

in our nation’s community colleges, 

including modernization of 

community college facilities and the 

development of online educational 

resources. 

• The Early Learning Challenge Fund, 

to provide competitive grants to States 

for the development of statewide 

infrastructure of integrated earlylearning supports and services for 

children from birth through age 5. 

Student Loans: H.R. 3221 would also 

enact the President’s proposal to 

originate 100 percent of new student 

loans under the Direct Loan program, 

under which the Federal Government 

provides capital for student loans. The 

bill would terminate the origination of 

loans under the Federal Family 

Education Loan program, under which 

the Federal Government currently 

guarantees loans made by the private 

sector. This bill also includes a proposal 

to transform the current Perkins Loan 

program from a separate program of 

revolving funds based at individual 

institutions of higher education into a 

subset of the Direct Loan program. 

D. Higher Education Opportunity Act 

The Higher Education Opportunity 

Act (HEOA), enacted on August 14, 

2008, amended and extended the Higher 

Education Act of 1965 (HEA). During 

the coming year, we plan to amend our 

regulations to address several key 

issues, including issues related to 

program integrity and foreign schools. 

As necessary we may also amend our 

regulations for several discretionary 

grant programs to reflect changes made 

by the HEOA. 

Unless subject to an exemption, 

regulations to carry out changes to the 

student financial aid programs under 

Title IV of the HEA must generally go 

through the negotiated rulemaking 

process. 

E. Individuals with Disabilities 

Education Act 

We plan to issue final regulations 

implementing changes to the Part C 

program—the early intervention 

program for infants and toddlers with 

disabilities—under the IDEA. 

F. Family Educational Rights and 

Privacy Act 

Given the President’s emphasis on 

improving the collection and use of data 

as a key element of educational reform, 

we are reviewing the Family 

Educational Rights and Privacy Act of 

1974 (FERPA) and its implementing 

regulations to ensure that States are able 

to effectively establish and expand 

robust statewide longitudinal data 

systems while protecting student 

privacy. If necessary, we will amend our 

current FERPA regulations. 

G. Other Potential Regulatory Activities 

Congress may take up legislation to 

reauthorize the Adult Education and 

Family Literacy Act (AEFLA) (Title II of 

the Workforce Investment Act of 1998) 

and the Rehabilitation Act of 1973. The 

Administration is working with 

Congress to ensure that any changes to 

these laws (1) improve the State grant 

and other programs providing assistance 

for adult basic education under the 

AEFLA and for vocational rehabilitation 

and independent living services for 

persons with disabilities under the 

Rehabilitation Act of 1973; and (2) 

provide greater accountability in the 

administration of programs under both 

statutes. Changes to our regulations may 

be necessary as a result of the 

reauthorization of these two statutes. 

III. Principles for Regulating 

Over the next year, other regulations 

may be needed because of new 

legislation or programmatic changes. In 

developing and promulgating 

regulations we follow our Principles for 

Regulating, which determine when and 

how we will regulate. Through 

consistent application of the following 

principles, we have eliminated 

unnecessary regulations and identified 

situations in which major programs 

could be implemented without 

regulations or with limited regulatory 

action. 

In deciding when to regulate, we 

consider: 

• Whether regulations are essential to 

promote quality and equality of 

opportunity in education. 

• Whether a demonstrated problem 

cannot be resolved without 

regulation. 

• Whether regulations are necessary to 

provide a legally binding 

interpretation to resolve ambiguity. 

• Whether entities or situations subject 

to regulation are so diverse that a 

uniform approach through regulation 

does more harm than good. 

• Whether regulations are needed to 

protect the Federal interest; that is, to 

ensure that Federal funds are used for 

their intended purpose, and to 

eliminate fraud, waste, and abuse. 

In deciding how to regulate, we are 

mindful of the following principles: 

• Regulate no more than necessary. 

• Minimize burden to the extent 

possible, and promote multiple 

approaches to meeting statutory 

requirements when possible. 

• Encourage coordination of federally 

funded activities with State and local 

reform activities. 

• Ensure that benefits justify costs of 

regulation. 

• To the extent possible, establish 

performance objectives rather than 

specify compliance behavior. 

• Encourage flexibility, to the extent 

possible, so institutional forces and 

incentives achieve desired results. 

ED—Office of Elementary and 

Secondary Education (OESE) 

PROPOSED RULE STAGE 

37. ∑ TEACHER INCENTIVE FUND— 

PRIORITIES, REQUIREMENTS, 

DEFINITIONS, AND SELECTION 

CRITERIA 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

PL 111–5; ESEA title V, part D, subpart 

1 (20 USC 7243); PL 111–8, division 

F, title III 

CFR Citation: 

None 

Legal Deadline: 

None 

Abstract: 

The Secretary proposes priorities, 

requirements, definitions, and selection 


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64196 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

criteria for the Teacher Incentive Fund, 

which supports performance-based 

teacher and principal compensation 

systems in high-need schools, primarily 

through grants to school districts and 

consortia of school districts. 

Statement of Need: 

The proposed priorities, requirements, 

definitions, and selection criteria are 

needed to implement the TIF program 

and to conduct a competition to award 

funds under this program. 

Summary of Legal Basis: 

American Recovery and Reinvestment 

Act of 2009, PL 111-5. 

Alternatives: 

The Department is still developing this 

proposed rule; our discussion of 

alternatives will be included in the 

notice of proposed priorities, 

requirements, definitions, and selection 

criteria. 

Anticipated Cost and Benefits: 

Estimates of the costs and benefits are 

currently under development and will 

be published in the proposed rule. 

Risks: 

None. 

Timetable: 

Action Date FR Cite 

NPRM 12/00/09 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

Agency Contact: 

James Butler 

Department of Education 

Office of Elementary and Secondary 

Education 

Room 3E108 

400 Maryland Avenue SW 

Washington, DC 20202 

Phone: 202 260–2274 

Email: james.butler@ed.gov 

RIN: 1810–AB08 

ED—OESE 

FINAL RULE STAGE 

38. ∑ SCHOOL IMPROVEMENT 

GRANTS—NOTICE OF PROPOSED 

REQUIREMENTS UNDER THE 

AMERICAN RECOVERY AND 

REINVESTMENT ACT OF 2009; TITLE I 

OF THE ELEMENTARY AND 

SECONDARY EDUCATION ACT OF 

1965 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

20 USC 6303(g) 

CFR Citation: 

None 

Legal Deadline: 

None 

Abstract: 

The Secretary has proposed 

requirements for School Improvement 

Grants authorized under section 1003(g) 

of title I of the Elementary and 

Secondary Education Act of 1965, as 

amended (ESEA), and funded through 

both the Department of Education 

Appropriations Act, 2009, and the 

American Recovery and Reinvestment 

Act of 2009. The proposed 

requirements would define the criteria 

that a State educational agency (SEA) 

must use to implement the statutory 

priority that the SEA award school 

improvement funds to local educational 

agencies (LEAs) with the lowestachieving title I schools that 

demonstrate (a) the greatest need for 

the funds and (b) the strongest 

commitment to use those funds to 

provide adequate resources to their 

lowest-achieving title I schools to raise 

substantially the achievement of their 

students. The proposed requirements 

also would require an SEA to give 

priority, through a waiver under section 

9401 of the ESEA, to LEAs that wish 

to serve the lowest-achieving secondary 

schools that are eligible for, but do not 

receive, title I funds. The proposed 

requirements would require an SEA to 

award school improvement funds to 

eligible LEAs in amounts sufficient to 

enable the targeted schools to 

implement one of four specific 

proposed interventions. 

Statement of Need: 

The proposed requirements are needed 

to implement the School Improvement 

Grants program in a manner that the 

Department believes will best enable 

the program to achieve its objective of 

supporting comprehensive and effective 

efforts by LEAs to overcome the 

challenges faced by low-achieving 

schools that educate concentrations of 

children living in poverty. 

Summary of Legal Basis: 

20 USC 6303(g). 

Alternatives: 

A likely alternative to promulgation of 

the proposed requirements would be 

for the Secretary to allocate the FY 

2009 school improvement funds 

without setting any regulatory 

requirements governing their use. 

Under such an alternative, States and 

LEAs would be required to meet the 

statutory requirements, but funds likely 

would not be targeted to the very 

lowest-achieving schools and LEAs 

would likely not use all the funds for 

activities most likely to result in a real 

turn-around of those schools and 

significant improvement in the 

educational outcomes for the students 

they educate. 

Anticipated Cost and Benefits: 

The Department believes that the 

proposed requirements will not impose 

significant costs on States, LEAs, or 

other entities that receive school 

improvement funds. These proposed 

requirements would drive school 

improvement funds to LEAs that have 

the lowest-achieving schools in 

amounts sufficient to turn those schools 

around and significantly increase 

student achievement. They would also 

require participating LEAs to adopt the 

most effective approaches to turning 

around low-achieving schools. In short, 

the Department believes that the 

proposed requirements would ensure 

that limited school improvement funds 

are put to their optimum use—that is, 

that they would be targeted to where 

they are most needed and used in the 

most effective manner possible. The 

benefits, then, would be more effective 

schools serving children from lowincome families and a better education 

for those children. 

The Department believes that the State 

and local costs of implementing the 

proposed requirements (including State 

costs of applying for grants, distributing 

the grants to LEAs, ensuring 

compliance with the proposed 

requirements, and reporting to the 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64197 

Department; and LEA costs of applying 

for subgrants and implementing the 

interventions) will be financed through 

the grant funds. The Department does 

not believe that the proposed 

requirements would impose a financial 

burden that States and LEAs would 

have to meet from non-Federal sources. 

Risks: 

None. 

Timetable: 

Action Date FR Cite 

NPRM 08/26/09 74 FR 43101 

NPRM Comment 

Period End 

09/25/09 

Final Action 12/00/09 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

Agency Contact: 

Zollie Stevenson Jr. 

Department of Education 

Office of Elementary and Secondary 

Education 

Room 3W230 

400 Maryland Avenue SW 

Washington, DC 20202–6132 

Phone: 202 260–1824 

Email: zollie.stevenson@ed.gov 

RIN: 1810–AB06 

ED—Office of Innovation and 

Improvement (OII) 

PROPOSED RULE STAGE 

39. ∑ INVESTING IN INNOVATION— 

PRIORITIES, REQUIREMENTS, 

DEFINITIONS, AND SELECTION 

CRITERIA 

Priority: 

Economically Significant. Major under 

5 USC 801. 

Legal Authority: 

PL 111–5 

CFR Citation: 

None 

Legal Deadline: 

None 

Abstract: 

The Secretary of Education proposes 

priorities, requirements, definitions, 

and selection criteria under the 

Investing in Innovation Fund, 

authorized under the American 

Recovery and Reinvestment Act of 2009 

(Pub. L. 111-5). These priorities, 

requirements, definitions, and selection 

criteria are intended to support the 

efforts of local educational agencies and 

nonprofit organizations that have strong 

records of improving student 

achievement to develop, implement, 

evaluate, and replicate innovative 

programs and practices. 

Statement of Need: 

These proposed priorities, 

requirements, definitions, and selection 

criteria are needed to implement the 

Investing in Innovation Fund and to 

conduct a competition to award funds 

under this program. 

Summary of Legal Basis: 

American Recovery and Reinvestment 

Act of 2009, PL 111-5. 

Alternatives: 

The Department considered a variety of 

possible priorities, requirements, 

definitions, and selection criteria before 

deciding to propose those included in 

the notice. The proposed priorities, 

requirements, definitions, and selection 

criteria are those that the Department 

believes best capture the purposes of 

the program while clarifying what the 

Secretary expects the program to 

accomplish and ensuring that program 

activities are aligned with Departmental 

priorities. The proposals would also 

provide eligible applicants with 

flexibility in selecting activities to 

apply to carry out under the program. 

Anticipated Cost and Benefits: 

The Department believes that the 

proposed priorities, requirements, 

definitions, and selection criteria would 

result in selection of high-quality 

applications to implement activities 

that are most likely to have a 

significant national impact on 

educational reform and improvement. 

Through these proposals, the 

Department seeks to provide clarity as 

to the scope of activities we expect to 

support with program funds and the 

expected burden of work involved in 

preparing an application and 

implementing a project under the 

program. The pool of possible 

applicants is very large; during school 

year 2007-08, 9,729 LEAs across the 

country (about 65 percent of all LEAs) 

made adequate yearly progress. 

Although not every one of those LEAs 

would necessarily meet all the 

eligibility requirements, the number of 

LEAs that would meet them is likely 

to be in the thousands. 

The Department believes that the costs 

imposed on applicants by the proposed 

priorities, requirements, definitions, 

and selection criteria would be limited 

to paperwork burden related to 

preparing an application and that the 

benefits of implementing these 

proposals would outweigh any costs 

incurred by applicants. The costs of 

carrying out activities would be paid 

for with program funds and with 

matching funds provided by privatesector partners. Thus, the costs of 

implementation would not be a burden 

for any eligible applicants, including 

small entities. 

Risks: 

None. 

Timetable: 

Action Date FR Cite 

NPRM 12/00/09 

Regulatory Flexibility Analysis 

Required: 

No 

Government Levels Affected: 

None 

Agency Contact: 

Margo Anderson 

Department of Education 

Office of Innovation and Improvement 

Room 4W311 

400 Maryland Avenue SW 

Washington, DC 20202 

Phone: 202 205–3010 

Email: margo.anderson@ed.gov 

RIN: 1855–AA06 

BILLING CODE 4000–01–S 


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