[Federal Register: April 22, 2002 (Volume 67, Number 77)]
[Notices]
[Page 19625-19629]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ap02-128]
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Part II
Department of Education
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State Flexibility Program; Notice
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DEPARTMENT OF EDUCATION
State Flexibility Program
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed application requirements, selection
criteria, and competition schedule.
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SUMMARY: We propose application requirements, selection criteria, and a
competition schedule for granting State educational agencies (SEAs)
State flexibility (State-Flex) authority under the Elementary and
Secondary Education Act of 1965 (ESEA), as amended by the No Child Left
Behind Act of 2001 (Pub. L. 107-110). We are taking this action to
implement the State-Flex competitions, under which the Secretary will
grant State-Flex authority to up to seven SEAs. The authority will
assist these SEAs, and the local educational agencies (LEAs) with which
they enter into performance agreements, in making adequate yearly
progress and narrowing achievement gaps.
DATES: We must receive your comments and recommendations on the
application requirements, selection criteria, and competition schedule
proposed in this notice on or before May 22, 2002.
ADDRESSES: Address all comments about the application requirements,
selection criteria, and competition schedule proposed in this notice to
Mr. Charles Lovett, Group Leader, Office of School Support and
Technology Programs, U.S. Department of Education, 400 Maryland Avenue,
SW., room 3E241, Washington, DC 20202. If you prefer to send your
comments by facsimile transmission, use the following number: (202)
205-5870. If you prefer to send your comments through the Internet, use
the following address: charles.lovett@ed.gov.
If you want to comment on the information collection requirements,
you must send your comments to the Department representative named in
this section.
FOR FURTHER INFORMATION CONTACT: Mr. Charles Lovett, Group Leader.
Telephone: (202) 401-0039 or via Internet: charles.lovett@ed.gov.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this notice in an alternative
format (e.g., Braille, large print, audiotape, or computer diskette) on
request to the contact person listed above.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding the proposed application
requirements and selection criteria. All comments submitted in response
to this notice will be available for public inspection, during and
after the comment period, in Room 3E241, 400 Maryland Avenue, SW.,
Washington, DC between the hours of 8:30 a.m. and 4 p.m., Eastern time,
Monday through Friday of each week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments. If you want to schedule an
appointment for this type of aid, please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
General
The ESEA, as amended, authorizes the Secretary of Education to
grant State flexibility (State-Flex) authority to up to seven State
educational agencies (SEAs). (20 U.S.C. 7311 et seq.) With this
authority, SEAs may (1) consolidate certain Federal education funds
that are provided for State-level activities and State administration
and use those funds for any educational purpose authorized under the
ESEA in order to meet the State's definition of adequate yearly
progress (AYP) under section 1111(b)(2) of the ESEA and advance the
education priorities of the State and its LEAs; and (2) specify how
LEAs in the State may use funds allocated under section 5112(a) of the
ESEA (State Grants for Innovative Programs). In addition, an SEA with
State-Flex authority must enter into performance agreements with not
fewer than four, nor more than ten, LEAs (at least half of which must
be high-poverty LEAs), giving those LEAs the flexibility to consolidate
certain Federal education funds and to use those funds for any
educational purpose permitted under the ESEA in order to meet the
State's definition of AYP and specific, measurable goals for improving
student achievement and narrowing achievement gaps. An SEA must propose
the LEA performance agreements as part of its State-Flex application to
the Secretary, and the Secretary will approve the agreements as part of
the grant of State-Flex authority.
The purpose of the program is to create options for SEAs selected
for State-Flex authority and for LEAs that enter into performance
agreements to --
(1) Improve the academic achievement of all students and to focus
the resources of the Federal government on this achievement;
(2) Improve teacher quality and subject matter mastery, especially
in mathematics, reading, and science;
(3) Better empower parents, educators, administrators, and schools
to effectively address the needs of their children and students;
(4) Provide greater flexibility in determining how to increase
their students' academic achievement and implement education reforms in
their schools;
(5) Eliminate barriers to implementing effective State and local
education reform, while preserving the goals of opportunity for all
students and accountability for student progress;
(6) Hold them accountable for increasing the academic achievement
of all students, especially disadvantaged students; and
(7) Narrow achievement gaps between the lowest and highest
achieving groups of students so that no child is left behind.
The Secretary will grant State-Flex authority to SEAs on a
competitive basis using a peer review process. The grant of State-Flex
authority will be for a period of five years, but that time period may
be shortened or extended depending on an SEA's compliance with the
terms of the grant of authority and the performance of SEAs and LEAs
with performance agreements under that authority.
To be eligible for State-Flex, an SEA must submit to the Department
an application that, among other things, demonstrates that the grant of
authority offers substantial promise of (1) assisting the SEA in making
adequate yearly progress; and (2) aligning State and local reforms and
assisting the LEAs that enter into performance agreements with the SEA
in making adequate yearly progress.
An SEA does not receive additional Federal funding for
participating in State-Flex. Rather, an SEA with State-Flex authority
receives greater flexibility in spending funds allocated for State-
level activities and for State administration under the following ESEA
provisions: section 1004 (Improving the Academic Achievement of
Disadvantaged Children); paragraphs (4) and (5) of section 1202(d)
(Reading First); section 2113(a)(3) (Teacher and Principal Training and
Recruitment); section 2412(a)(1) (Enhancing Education
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through Technology); subsection (a) of section 4112 (Safe and Drug-Free
Schools and Communities Governor's funds, with agreement of the
Governor); subsection (b)(2) and (c)(1) of section 4112 (Safe and Drug-
Free Schools and Communities SEA funds); paragraphs (2) and (3) of
section 4202(c) (21st Century Community Learning Centers); and section
5112(b) (Innovative Programs). An SEA with State-Flex authority may
consolidate and use these funds for any educational purpose authorized
under the ESEA in order to make adequate yearly progress and advance
the educational priorities of the State and the LEAs with which the SEA
enters into performance agreements. In addition, an SEA with State-Flex
authority may specify how all LEAs in the State must use the funds that
they receive under section 5112(a) of the ESEA, but the SEA must comply
with the requirements in part A of title V for allocating those funds.
As noted above, an SEA seeking State-Flex authority must propose to
enter into performance agreements with not less than four, nor more
than ten, LEAs. At least half of these LEAs must be ``high-poverty
LEAs,'' which are defined in section 6141(b)(2) of the ESEA as LEAs in
which 20 percent or more of the children who are age five through
seventeen and served by the LEAs are from families with incomes below
the Federal poverty line. The term ``poverty line'' is defined in
section 9101(33) of the ESEA.
If any of an SEA's proposed performance agreements involve a
consortium of two or more LEAs rather than an individual LEA, each LEA
in the consortium is counted separately for purposes of determining
compliance with the statutory provision governing the number of LEAs in
a State that may enter into agreements and of determining if at least
half of the participating LEAs are high-poverty LEAs.
The Secretary will approve the performance agreements as part of
his initial grant of State-Flex authority to an SEA. An SEA may
subsequently seek to amend its grant of authority to add or remove
performance agreements, but at no time may there be performance
agreements with fewer than four nor more than ten LEAs, at least half
of which must be with high-poverty LEAs.
Like an SEA that receives State-Flex authority from the Secretary,
an LEA that enters into a performance agreement with its SEA does not
receive additional Federal funding for entering into the agreement.
Rather, the LEA receives additional flexibility in spending funds that
are allocated to it by formula under the following ESEA provisions:
Subpart 2 of part A of title II (Teacher and Principal Training and
Recruiting); subpart 1 of part D of title II (Enhancing Education
Through Technology); subpart 1 of part A of title IV (Safe and Drug-
Free Schools and Communities); and subpart 1 of part A of title V
(Innovative Programs). An LEA with a performance agreement may
consolidate and use these funds for any educational purpose authorized
under the ESEA in order to make adequate yearly progress and meet
specific, measurable goals for improving student achievement and
narrowing achievement gaps. The activities that an LEA would undertake
under a performance agreement must be consistent with the activities
that an SEA would undertake with its grant of authority. An LEA must
also demonstrate that it would meet the general purposes of the
programs included in the consolidation.
Participation in State-Flex does not relieve an SEA or the LEAs
with which it enters into performance agreements of their
responsibility to provide equitable services for private school
students and teachers under the affected programs.
The performance agreements between an SEA and LEAs in States with
State-Flex authority are essentially the same as the local flexibility
(Local-Flex) demonstration agreements between the Secretary and LEAs in
States that do not have State-Flex authority. On February 22, 2002, the
Secretary published in the Federal Register (67 FR 8442-8444) a notice
proposing application requirements and selection criteria for the
Local-Flex program, which is authorized under sections 6151 through
6156 of the ESEA, and announcing that the Department intends to conduct
two Local-Flex and two State-Flex competitions. We encourage you to
review the Local-Flex notice in order to gain a better understanding of
the relationship between State-Flex and Local-Flex. This notice is
available on the Department's web site at: http://www.ed.gov/
legislation/FedRegister.
As discussed in the Local-Flex notice, under the Local-Flex program
the Secretary may enter into local flexibility demonstration agreements
with (1) no more than three LEAs in a State; (2) a total of no more
than 80 LEAs; and (3) only LEAs in States that do not have State-Flex
authority. Furthermore, under the Local-Flex legislation, if an SEA
notifies the Secretary, by May 8, 2002, that it will be applying for
State-Flex, an LEA in that State will be precluded from applying for
Local-Flex until the Department makes a final determination concerning
the SEA's State-Flex application, should the SEA subsequently submit
one. The May 8, 2002 date is not the deadline for submission of a
State-Flex application. Rather, it is the final date by which an SEA
may preclude its LEAs from applying for Local-Flex by the SEA notifying
the Department that it intends to apply for State-Flex.
An SEA that chooses not to notify the Department prior to May 8,
2002 that it will be applying for State-Flex may nonetheless seek
State-Flex authority when the State-Flex competitions are conducted.
LEAs in that State, however, would have an opportunity to seek Local-
Flex before that SEA seeks State-Flex. An SEA would not be precluded
from applying for State-Flex so long as it agrees to incorporate into
its State-Flex proposal any Local-Flex agreements already entered into
between the Secretary and LEAs in the State.
In the February 22, 2002 Federal Register notice, the Secretary
indicated that he intends to publish a notice inviting applications for
the first Local-Flex competition during the spring and would select the
initial group of Local-Flex participants shortly thereafter. The
Secretary also announced that he intends to conduct the initial State-
Flex competition in late summer and would select three to four SEAs for
State-Flex during that competition. Later this year, the Secretary
would hold another Local-Flex and State-Flex competition. The Secretary
invited comments on the proposed two-staged processes and will announce
the final State-Flex and Local-Flex competition processes in a future
notice in the Federal Register.
I. Proposed State-Flex Application Requirements
In order that the Secretary can select State-Flex participants in
accordance with the statutory requirements, the Secretary proposes that
State-Flex applicants be required to submit the following information,
together with other information addressing the application requirements
in sections 6141(b) and (c) of the ESEA and the proposed selection
criteria:
(a) Evidence of the State's definition of adequate yearly progress.
Each SEA seeking a grant of State-Flex authority from the Secretary
would be required to provide, as part of its application, evidence that
the State has established a definition of adequate yearly progress
(AYP) that meets the requirements in section 1111(b)(2)(B) of the
reauthorized ESEA, unless the SEA has already submitted to the
Department evidence that it has established an AYP definition that
meets the new statutory
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requirements. An SEA would be eligible to participate in State-Flex
only if the State has established the required AYP definition and its
definition is reviewed by peer reviewers and approved by the Secretary
either prior to the SEA's submission of a State-Flex application or as
part of the State-Flex review process. (A description of the new AYP
requirements is provided in a January 18, 2002 Federal Register notice
(67 FR 2770-2772) requesting advice and recommendations on regulatory
issues, which is available on the Department's website at http://
www.ed.gov/legislation/FedRegister.)
(b) The SEA's strategies for consolidating funds, making adequate
yearly progress, and advancing the education priorities of the State.
Each SEA seeking State-Flex authority would submit a five-year plan
that describes how the SEA would consolidate and use funds from
programs included in the scope of the State-Flex authority to assist
the SEA in making adequate yearly progress and in advancing the
education priorities of the State and the LEAs with which the SEA
enters into performance agreements. In describing strategies for using
State-Flex to make adequate yearly progress and to advance its
education priorities, an SEA would also describe the specific
limitations, if any, that it would impose on the use of funds provided
to LEAs in the State under section 5112(a) of the ESEA.
(c) Proposed performance agreements with LEAs. Each SEA seeking
State-Flex authority would submit, as part of its application, five-
year performance agreements that the SEA proposes to enter into with
not fewer than four, and not more than ten, LEAs (at least half of
which must be high-poverty LEAs). The SEA would indicate why it
proposes to enter into agreements with these LEAs rather than other
LEAs in the State.
The SEA would describe the strategies that each LEA with a
performance agreement would implement in order to meet the State's
definition of adequate yearly progress and the LEA's specific,
measurable goals for improving student achievement and narrowing
achievement gaps. In particular, the SEA would describe how each of
these LEAs would consolidate and use funds received under subpart 2 of
part A of title II (Teacher and Principal Training and Recruitment);
subpart 1 of part D of title II (Enhancing Education Through
Technology); subpart 1 of part A of title IV (Safe and Drug-Free
Schools and Communities); and subpart 1 of part A of title V
(Innovative Programs); and what each LEA would seek to achieve under
its proposed agreement. The SEA would describe how an LEA's use of
consolidated funds under a performance agreement would be consistent
with the activities that the SEA would undertake with its grant of
State-Flex authority. The goals in each LEA's proposed performance
agreement would have to relate to the State's definition of AYP under
section 1111(b)(2)(B) of the ESEA.
II. Proposed State-Flex Selection Criteria
The Secretary proposes to use the following criteria in selecting
the SEAs to which he will grant State-Flex authority:
(a) Identification of the Need for the State-Flex Authority and the
Proposed Performance Agreements. The Secretary considers the SEA's need
for State-Flex authority, including the need for the performance
agreements that the SEA proposes in its State-Flex application. In
determining need, the Secretary considers the extent to which--
(i) The SEA's proposal identifies achievement gaps among different
groups of students, particularly in each of the LEAs with which the SEA
proposes to enter into a performance agreement.
(ii) The State-Flex authority and proposed performance agreements
would address the needs of students most at risk of educational
failure.
(iii) The LEAs that would enter into performance agreements with
the SEA serve a substantial portion of the students in the State who
are most at risk of educational failure.
(iv) Requirements in the Federal programs that the SEA and LEAs
with performance agreements would consolidate create barriers to
implementing specific State and local education reform strategies.
(b) Quality of SEA and LEA Strategies for Making Adequate Yearly
Progress and Enhancing Education Priorities. The Secretary considers
the quality of the strategies that the SEA will implement under its
grant of State-Flex authority, including the quality of the strategies
in each of the proposed performance agreements, for making adequate
yearly progress and for enhancing State and local education priorities.
In determining the quality of these strategies, the Secretary considers
the extent to which--
(i) The strategies that the SEA proposes for consolidating and
using funds under the scope of the State-Flex authority and for
directing how LEAs in the State will use funds under section 5112(a) of
the ESEA will likely assist the State in meeting its definition of
adequate yearly progress and in advancing its education priorities.
(ii) The performance agreements that the SEA proposes to enter into
with LEAs in the State will likely assist the State in meeting its
definition of adequate yearly progress and in advancing its education
priorities.
(iii) The strategies in each of the proposed performance
agreements, especially the strategies for consolidating and using funds
under the scope of the agreements, will likely assist each affected LEA
in meeting the State's definition of adequate yearly progress and
specific, measurable goals for improving student achievement and
narrowing achievement gaps.
(iv) The State-Flex proposal and each of the proposed performance
agreements represent a coherent, sustained approach for meeting the
purposes of the State-Flex program.
(v) The timelines for implementing the strategies in the State-Flex
proposal, including timelines in the proposed performance agreements,
are reasonable.
(c) Quality of the Management Plans. The Secretary considers that
quality of the management plans that the SEA and affected LEAs would
follow in implementing State-Flex activities. In reviewing the quality
of the management plans, the Secretary considers the extent to which--
(i) The SEA will provide effective technical assistance and support
to LEAs with performance agreements.
(ii) The SEA and each LEA with a performance agreement will use
disaggregated student achievement data and data on other academic
indicators to manage their proposed activities, to monitor their own
progress on an ongoing basis, and to make appropriate adjustments to
their implementation strategies.
(iii) The SEA will monitor LEA activities under each of the
performance agreements, evaluate the effectiveness of each agreement,
and propose modifications to LEA activities or to the agreements, as
appropriate.
(d) Adequacy of the Resources. The Secretary considers the adequacy
of the resources for the grant of State-Flex authority and the proposed
performance agreements. In considering the adequacy of the resources,
the Secretary considers the extent to which --
(i) The funds that the SEA proposes to consolidate under the grant
of State-Flex authority are adequate to support the strategies that it
seeks to implement with these funds.
(ii) The funds that each LEA would consolidate under its respective
performance agreement are adequate to support the strategies in its
agreement.
(iii) The SEA will coordinate the activities supported with funds
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consolidated under its grant of State-Flex authority with activities
funded with other resources to meet the purposes of the State-Flex
initiative.
(iv) Each LEA with a performance agreement will coordinate the
activities supported with funds consolidated under its agreement with
activities funded with other resources to meet the purposes of the
agreement.
(v) The costs that the SEA and affected LEAs will incur under the
grant of State-Flex authority and the proposed performance agreements
are reasonable in relationship to the goals that will be achieved.
III. Proposed Competition Schedule
In the notice proposing application requirements and selection
criteria for the Local-Flex program (67 FR 8442-8444), the Secretary
announced that the Department intends to conduct two Local-Flex
competitions and two State-Flex competitions. The Secretary received no
comments on the two-staged processes for these flexibility programs.
The Secretary plans to publish a notice inviting applications for
the first round of State-flex applications during June 2002. Those
applications would be due on October 1, 2002. Under the application
requirements that are proposed above, an SEA seeking State-Flex
authority at that time would be required to submit, among other things,
evidence that the State has established a definition of adequate yearly
progress that meets the requirements in section 1111(b)(2)(B) of the
reauthorized ESEA, unless the SEA has already submitted to the
Department evidence that the State has already established an AYP
definition that meets the new statutory requirements. The SEA would
also have to submit its strategies for consolidating funds, and
proposed performance agreements with not fewer than four, nor more than
ten, LEAs.
The Secretary proposes to grant three to four SEAs State-Flex
authority in the initial competition, and would award the remaining
State-Flex slots in a subsequent competition that would be announced
later this year.
The Secretary invites comments on whether this competition schedule
is reasonable and provides SEAs with sufficient time and opportunity to
seek State-Flex authority in light of the new Title I requirements.
Executive Order 12866
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 regulatory action.
The potential costs associated with the notice are those resulting
from statutory requirements and those we have determined as necessary
for administering this program effectively and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this notice, we have determined that the benefits
justify the costs.
We have also determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
Summary of Potential Costs and Benefits: It is not anticipated that
the application requirements proposed in this notice will impose any
significant costs on applicants. Since these regulations provide a
basis for the Secretary to grant State-Flex authority to up to seven
SEAs, giving the SEAs the flexibility to consolidate certain Federal
education funds, direct LEAs' use of funds under part A of title V of
the ESEA, and enter into performance agreements with four to ten LEAs,
the regulations would not impose any unfunded mandates on States or
LEAs. The benefits of the program are described in the SUMMARY section
of this notice.
Regulatory Flexibility Act Certification
The Secretary certifies that the requirements in this notice would
not have a significant economic impact on a substantial number of small
entities. The small entities affected by this notice would be small
LEAs. Since the Secretary is authorized to grant State-Flex authority
only to seven SEAs, and each of those SEAs must enter into performance
agreements with four to ten LEAs, the requirements proposed in this
notice will not affect a significant number of LEAs. In addition, these
requirements are minimal and are necessary to ensure effective program
management.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Although we do not believe these proposed application
requirements and selection criteria would have federalism implications
as defined in Executive Order 13132, we encourage State and local
elected officials to review them and to provide comments.
Paperwork Reduction Act of 1995
This document contains proposed data requirements. The feedback
received on these data requirements will eventually result in a new
information collection and will be under the review of the Office of
Management and Budget (OMB) until OMB approves the data requirements at
the time of the final notice.
If you want to comment on the proposed information collection
requirements, please send your comments to Mr. Charles Lovett, Office
of School Support and Technology Programs, U.S. Department of
Education, 400 Maryland Avenue, SW., room 3E241, Washington, DC 20202.
Electronic Access to this Document: You may view this document, as well
as 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: www.ed.gov/legislation/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 (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official version of the Federal Register and the Code of Federal
Regulations is available on GPO access at: www.access.gpo.gov/nara/
index.html.
Program Authority: 20 U.S.C. 7311 et seq.
Dated: April 17, 2002.
Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 02-9808 Filed 4-19-02; 8:45 am]
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