[Federal Register Volume 75, Number 184 (Thursday, September 23, 2010)]
[Notices]
[Pages 57907-57910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23922]
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DEPARTMENT OF EDUCATION
[Docket ID ED-2010-OESE-0016]
RIN 1810-AB08
Teacher Incentive Fund
ACTION: Interim final requirements; request for comments.
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SUMMARY: The Secretary of Education (Secretary) amends the final
requirements for the Teacher Incentive Fund program to authorize the
Department to select more than sixteen high-need schools per local
educational agency (LEA) for participation in the Congressionally
mandated TIF national evaluation.
DATES: These interim final requirements are effective September 23,
2010. We must receive your comments by October 25, 2010.
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 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 interim final requirements,
address them to Office of Elementary and Secondary Education
(Attention: Teacher Incentive Fund Comments), U.S. Department of
Education, 400 Maryland Avenue, SW., room 3E120, Washington, DC 20202.
[[Page 57908]]
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.
FOR FURTHER INFORMATION CONTACT: April Lee. Telephone: (202) 205-5224,
or by e-mail: [email protected]. Note that we will not accept comments by 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:
Invitation To Comment
We invite you to submit comments regarding these interim final
requirements and 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 interim final
requirements.
During and after the comment period you may inspect all public
comments about these interim final requirements by accessing http://www.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 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.
Background and Summary of Interim Final Requirements: On May 21,
2010, the Secretary published a notice of final priorities,
requirements, definitions, and selection criteria (NFP) for the TIF
program in the Federal Register (75 FR 28713). The purpose of the TIF
program is to support projects that develop and implement performance-
based compensation systems for teachers, principals, and other
personnel in high-need schools in order to increase educator
effectiveness and student achievement, measured in significant part by
student growth.
The NFP announced priorities, requirements, definitions, and
selection criteria that would govern two separate TIF competitions, the
Main TIF competition and the TIF Evaluation competition. In the same
issue of the Federal Register, the Secretary also published a notice
inviting applications (NIA) for both TIF competitions for FY 2010 (75
FR 28740).
The TIF Evaluation competition responds to a requirement in the
American Recovery and Reinvestment Act of 2009, Division A, Title VIII,
Public Law 111-5 (the ARRA), that the Secretary use a portion of the
funds appropriated in the ARRA to conduct a national evaluation of the
TIF program. Specifically, along with authorizing TIF funds to be used
to support projects that implement performance-based compensation
systems (PBCSs), the ARRA also requires the Department to use the
appropriated funds to conduct a ``rigorous national evaluation . . .
utilizing randomized controlled methodology to the extent feasible,
that assesses the impact of performance-based teacher and principal
compensation systems supported by the funds provided in this Act on
teacher and principal recruitment and retention in high-need schools
and subjects.'' The ARRA thus requires the Department to conduct a
national evaluation that will ensure adequate participation of both a
treatment group and a control group.
In response to Congress' mandate, the Department developed a study
methodology that relies on a sufficient number of high-need schools--
both ``treatment schools'' in which teachers would be eligible for
performance-based compensation that is one element of the LEA's PBCS,
and ``control schools'' in which teachers would be part of the PBCS but
would not be eligible to receive performance-based compensation that
would be spread across a sufficient number of LEAs to yield
sufficiently meaningful and generally applicable results. The
Department announced in the NFP that each applicant for the TIF
Evaluation competition had to identify eight or more high-need schools
to be included in the TIF Evaluation. Based on our projections that 20
applicants would submit sufficiently high-quality applications for the
TIF Evaluation competition, and the number of high-need schools that
those applicants would propose to be included in the TIF Evaluation
competition, the Department announced in the NFP that applicants could
select up to 16 high-need schools per LEA to participate in the TIF
Evaluation. See 75 FR 28735.
As an incentive for applicants to identify high-need schools for
inclusion in the TIF Evaluation, the Department also announced in the
NFP (75 FR 28734) that applicants whose schools were selected for
inclusion in the evaluation would receive additional funding of up to
$2 million to be used for TIF-related activities as specified in the
NFP--$1 million for inclusion of up to eight high-need schools (four
pairs), and an additional $250,000 for each additional pair of high-
need schools up to a maximum of 16 schools.
After non-Federal readers reviewed and scored applications for the
TIF Evaluation competition, the Department determined that the number
of applicants that submitted high-quality applications for the TIF
Evaluation competition, and the number of high-need schools those
applicants identified for inclusion in the evaluation, were lower than
the Department wanted for a study that has the desired statistical
power. Even after extending an opportunity to applicants that had
submitted high-quality applications for the TIF Evaluation competition
to identify additional schools, up to 16 per LEA, for inclusion in the
national TIF Evaluation, the number of high-need schools identified for
inclusion was still lower than the Department desired for its study
sample size.
The Department's decision to cap at 16 the number of an LEA's high-
need schools that could be included in the evaluation (and the number
of high-need schools for which the Department would provide successful
applicants with incentive funding under the TIF Evaluation competition)
was intended to enable the evaluation to look at the impact of
performance-based compensation in a substantial number of
geographically diverse LEAs. And, at the time it adopted the
requirement, the Department had every reason to believe that it would
receive a sufficient number of high-quality applications such that a
16-school cap would not limit the effectiveness of the evaluation.
However, based on the number of applications deemed of sufficiently
high quality to warrant funding, the Department has determined that
including more than 16 high-need schools per LEA in the evaluation is
[[Page 57909]]
necessary if the Department is to use a strong design to conduct the
Congressionally mandated study. Accordingly, the Secretary has decided
to revise the requirements announced in the NFP by removing the cap of
16 high-need schools per LEA that may be included in the TIF
Evaluation, and by removing the cap of $2,000,000 on the incentive
payments that may be provided to grantees identifying additional pairs
of schools, beyond the minimum required four pairs of such schools.
We recognize that implementation of this new requirement has
budgetary implications for applicants that choose to offer more than 16
schools per LEA for inclusion in the evaluation. In addition to the
additional incentive payments and funding for the other costs of
implementing the PBCS, as stated in the NFP, the Department will
provide to grantees with schools participating in the evaluation: (a) A
one-percent across-the-board supplemental bonus payment for teachers,
principals, and other personnel (at those sites in which the grantee
has chosen to expand its PBCS to include these additional staff) in all
control schools, and (b) funds necessary to meet the costs of
implementing the supplemental differentiated effectiveness incentive
component of the PBCS in all treatment schools. However, the Department
has determined that, given the amount of available TIF funding and the
limited number of high-quality applications, inclusion of additional
schools beyond 16 per LEA and the award of the additional funds for
inclusion of such schools will have no adverse impact on the number of
grantees or the size of the TIF award that any grantee--under either
the Main TIF competition or the TIF Evaluation competition--would
otherwise receive.
Waiver of Rulemaking and Delayed Effective Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the
Department is generally required to publish a notice of proposed
rulemaking and provide the public with an opportunity to comment on
proposed regulations prior to establishing a final rule. However, we
are waiving the notice-and-comment rulemaking requirements under the
APA. Section 553(b) of the APA provides that an agency is not required
to conduct notice-and-comment rulemaking when the agency for good cause
finds that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest. Although these
requirements are subject to the APA's notice-and-comment requirements,
the Secretary has determined that it would be impracticable and
contrary to the public interest to conduct notice-and-comment
rulemaking.
As noted above, these interim final requirements are needed to
permit the Department to include in the Congressionally mandated
evaluation of the TIF program a sufficient number of high-need schools
to yield study results in which one may have great confidence. The
prior requirements, which limited the number of high-need schools to be
included in the TIF Evaluation and the Department's award of an
incentive for inclusion of such schools, to 16 per LEA and $2,000,000
in incentive payments, respectively, were based on our assumptions
about numbers of high-quality applications the Department would
receive, assumptions that were not correct. Additionally, we have
determined that imposition of those prior requirements may prevent the
TIF Evaluation from achieving its intended purpose.
As also noted in the discussion in the preceding section, this
change in the TIF Evaluation competition requirements will have no
financial impact on any applicant. No applicant will be denied or
receive decreased TIF funding because of a decision to permit other
applicants to increase the number of high-need schools participating in
the evaluation and to provide greater incentive payments to them for
doing so. Moreover, the Department's authority to make TIF awards under
both the Main TIF competition and the TIF Evaluation competition
expires on October 1, 2010. Waiver of rulemaking and the delayed
effective date are needed to permit these requirements to become
effective, and to make TIF awards by September 30, 2010. Even on the
most expedited timeline, it would be impossible for the Department to
conduct notice-and-comment rulemaking and then promulgate final
requirements before the October 1, 2010 deadline as this process
normally takes six months. With the Department's ability to conduct the
required evaluation at stake, and with so much interest in the results
of the study as they apply to performance-based compensation systems,
it would be impracticable and contrary to the public interest for the
Department to take this risk of not obligating funds available under
the TIF Evaluation competition by September 30, 2010.
Accordingly, and in order to make timely grant awards with ARRA
funds, the Secretary is issuing these interim final requirements
without first publishing proposed requirements for public comment.
These interim final requirements govern only the selection of schools
for the TIF Evaluation.
Although the Department is adopting these requirements on an
interim final basis, the Department requests public comment on the
requirements. After consideration of public comments, the Secretary
will publish final requirements.
The APA also requires that a substantive rule be published at least
30 days before its effective date, except as otherwise provided for
good cause (5 U.S.C. 553(d)(3)). For the reasons outlined in the
preceding paragraphs, the Secretary has determined that a delayed
effective date for these interim final requirements would be
unnecessary and contrary to the public interest, and that good cause
exists to waive the requirement for a delayed effective date. As such,
these interim final requirements are effective on the date of
publication.
Interim Final Requirements
For the reasons discussed previously, the Secretary amends the
final priorities, requirements, definitions, and selection criteria for
the TIF program, published in the Federal Register on May 21, 2010 (75
FR 28714), by revising--
(a) The Budget Information section (75 FR 28734):
Budget Information
In paragraph one, the last sentence is revised to read as follows:
``For each additional pair of schools participating in the evaluation,
a successful applicant will receive an additional $250,000.''
(b) The Scope of Schools section (75 FR 28735-28736):
Scope of Schools
1. In paragraph one, the last sentence, ``In addition, no LEA will
have more than 16 high-need schools (as defined in this notice)
selected for the TIF Evaluation.'', is removed.
2. In paragraph two, the last sentence, ``The Department will use
the number of eligible schools, up to 16 per LEA, that a successful
applicant makes available for the TIF Evaluation.'', is removed.
Executive Order 12866
Under Executive Order 12866, the Secretary must determine whether a
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
[[Page 57910]]
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 set forth in the Executive order. The
Secretary has determined that this regulatory action is significant
under section 3(f) of the Executive order.
Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action and have determined that these
interim final requirements will not impose additional costs to grantees
or the Federal government. The Department is regulating only to permit,
at the discretion of each applicant that submits an application of
sufficient quality, more schools per LEA to be included in the national
evaluation. Additionally, the Department has determined that this
regulatory action does not unduly interfere with State, local, and
Tribal governments in the exercise of their governmental functions.
Regulatory Flexibility Act Certification
The small entities affected by this regulatory action are (1) small
LEAs, and (2) nonprofit organizations applying for and receiving funds
under this program in partnership with an LEA or a State educational
agency (SEA). For the reasons stated in the NFP, 75 FR 28738-28739, the
Secretary certifies that this regulatory action will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act of 1995
These interim final requirements contain no new information
collection requirements that are subject to review by OMB under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 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 notification of our specific plans regarding
the TIF Evaluation competition for this program.
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.
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: September 21, 2010.
Thelma Mel[eacute]ndez de Santa Ana,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2010-23922 Filed 9-22-10; 8:45 am]
BILLING CODE 4000-01-P