FR Doc 2010-17580
[Federal Register: July 19, 2010 (Volume 75, Number 137)]
[Page 41836-41838]
From the Federal Register Online via GPO Access []

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Waiver and Extension of Project Period

AGENCY: Office of Innovation and Improvement.

ACTION: Notice of waiver and extension of project period.


SUMMARY: The Secretary waives the requirements in 34 CFR 75.261(c)(2) 
of the Education Department General Administrative Regulations (EDGAR), 
as they apply to projects funded under the DC School Choice Incentive 
Program (DC Choice program). This regulation generally prohibits any 
project period extensions involving the obligation of additional 
Federal funds. A waiver of this regulation would allow the one-year 
grant funded with fiscal year (FY) 2009 funds under the DC Choice 
Program to be continued beyond its original project period with FY 2010 
funds. Additionally, this grantee will be able to receive additional 
Federal funds notwithstanding the limitation in 34 CFR 75.261(c)(2) 
that prohibits extension of a project period if it involves the 
obligation of additional Federal funds.

DATES: This waiver and extension of project period are effective August 
18, 2010.

Education, 400 Maryland Avenue, SW., Room 4W229, Washington, DC 20202. 
Telephone: (202) 260-1816 or by e-mail:
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    The DC Choice program, established under the DC School Choice 
Incentive Act of 2003 (Act), provides low-income parents residing in 
the District of Columbia (District) with an option to send their 
children to private schools. In FY 2009, the Department awarded a one-
year competitive grant to an applicant to provide scholarships, for the 
2009-2010 school year, to students who received them in the 2008-2009 
school year. The notice inviting applications for new awards for the FY 
2009 DC Choice Program grant competition was published in the Federal 
Register on July 6, 2009 (74 FR 31935).
    Under the absolute priority established in that notice, funds 
awarded under the FY 2009 competition were permitted to be used only to 
award scholarships to students already participating in this program 
prior to FY 2009.\1\ The absolute priority was established to align 
with the instructions of Congress included in the Joint Explanatory 
Statement accompanying Public Law 111-8, the Omnibus Appropriations 
Act, 2009, that the Department use FY 2009 funds only to provide 
scholarships to currently enrolled program participants and not to 
enroll new participants. Further, the FY 2010 Appropriations Act 
provides that FY 2010 and prior-year funds may be used to provide 
scholarships in the 2010-2011 school year only to students who received 
scholarships in the 2009-2010 school year.

    \1\ Funds are also permitted to be used for administrative and 
evaluation expenses.

Waiver of 34 CFR 75.261(c)(2)

    We are waiving the provisions of 34 CFR 75.261(c)(2) so that the 
current grantee may continue to receive additional funds to serve 
beyond the

[[Page 41837]]

2009-2010 school year students who are currently participating in the 
program. We are taking this action because we do not believe it would 
be in the public interest to hold a new competition under the DC Choice 
program for FY 2010 (and through FY 2011 provided that additional funds 
are appropriated under the DC Choice program) to serve these students 
through the time they graduate from high school.\2\ With the 
uncertainties presented by the absence of a future authority for this 
program, it would not be advisable to hold a competition for a project 
that would likely operate for only a short period of time, and serve a 
limited population. The grantee that received the award in the FY 2009 
competition, Washington Scholarship Fund (WSF), has recently 
transferred the administration of the grant to the current grantee, the 
DC Children and Youth Investment Trust Corporation. WSF could not 
continue to administer the DC Choice Program beyond the 2009-2010 
school year because it was unable to obtain the additional funding 
commitments necessary to serve the participating families and fulfill 
school oversight responsibilities. In order to receive this grant, the 
DC Children and Youth Investment Trust Corporation was required to 
submit to the Department for review, as part of the grant transfer 
agreement, a proposal that addressed the absolute priority and each 
selection criterion included in the original notice inviting 
applications for new awards for the FY 2009 DC Choice program grant 
competition published in the Federal Register on July 6, 2009 (74 FR 
31935). The current grantee will request the FY 2010 continuation 

    \2\ The President's 2011 budget requests funding for the program 
but states, ``it is expected that this will be the final request for 
Federal funding to support the DC Opportunity Scholarship program,'' 
and permits the use of funds appropriated in prior years for future 
school years until the current cohort participating in the program 

    Therefore, the Secretary is waiving the requirements in 34 CFR 
75.261(c)(2), which limit the extension of a project period if the 
extension involves the obligation of additional Federal funds. With 
this waiver, we will not announce a new competition or make a new award 
under the DC Choice program in FY 2010. Rather, the requirements 
applicable to continuation awards for the current DC Choice grantee in 
34 CFR 75.253 will apply to any continuation awards sought by the 
    The waiver of 34 CFR 75.261(c)(2) does not exempt the current DC 
Choice grantee from the account-closing provisions of 31 U.S.C. 
1552(a), nor does it extend the availability of funds previously 
awarded to the current grantee. As a result of 31 U.S.C. 1552(a), 
appropriations available for a limited period may be used for payment 
of valid obligations for only five years after the expiration of their 
period of availability for Federal obligation. After that time, the 
unexpended balance of those funds is canceled and returned to the U.S. 
Treasury Department and is unavailable for restoration for any purpose.

Waiver of Rulemaking

    Under the Administrative Procedure Act (5 U.S.C. 553) (APA) the 
Department generally offers interested parties the opportunity to 
comment on proposed regulations, including proposed waivers of its 
regulation in 34 CFR 75.261(c)(2). However, we are waiving the notice-
and-comment requirements of the APA for this waiver because it would be 
impracticable and contrary to the public interest to delay the award of 
FY 2010 funds until after soliciting notice and comment on the waiver 
of this regulation. In order for current scholarship students to 
receive scholarships for the next school year, 2010-2011, the grantee 
must take a number of actions within the next 30 to 45 days, including 
verifying the eligibility of students' families for scholarships and 
verifying school eligibility for program participation. More 
specifically, the students must be determined to be eligible and 
enrolled in the participating schools for the upcoming school year as 
soon as possible. If current scholarship students are not enrolled 
soon, school leaders will not have the enrollment figures that are 
required to hire the appropriate number of teachers. These schools, 
therefore, would not have the resources to serve current scholarship 
students who attempt to enroll when the schools reopen in September 
2010. In addition, a school will not enroll a current scholarship 
student whose eligibility for the program has not been verified. 
Enrolling a student who is later identified as ineligible would cause 
substantial financial duress for the school, and it would be 
detrimental to the student's education if the student is required to 
transfer to a new school once the school year has begun. For these 
reasons, it is imperative that the eligibility determinations begin 
immediately. Conducting notice and comment rulemaking would not allow 
the grantee or the schools to complete this work in the next 30 to 45 
days. Accordingly, under 5 U.S.C. 553(b)(B), the Secretary has 
determined that notice and comment on the waiver is unnecessary and 
contrary to the public interest.

Regulatory Flexibility Act Certification

    The Secretary certifies that this waiver will not have a 
significant economic impact on a substantial number of small entities.
    The small entity that will be affected by this waiver is the FY 
2009 grantee, the non-profit organization currently receiving Federal 
funds under the DC Choice program. The waiver will not have a 
significant economic impact on this entity because the waiver and the 
activities required to support the additional year(s) of funding will 
not impose excessive regulatory burdens or require unnecessary Federal 
supervision. The waiver will impose minimal requirements to ensure the 
proper expenditure of program funds, including requirements that are 
standard for continuation awards.

Paperwork Reduction Act of 1995

    This notice of waiver does not contain any information collection 

Intergovernmental Review

    This program is subject to Executive Order 12372 and the 
regulations in 34 CFR 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 early notification of our specific plans and 
actions for this program.

Electronic Access to This Document

    You may view this document, as well as all 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:
    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:

(Catalog of Federal Domestic Assistance Number: 84.370ADC School 
Choice Incentive Program)

    Program Authority: Consolidated Appropriations Act 2010, Pub. L. 
No. 111-117; DC Code Sec. Sec.  38-1851.01-38-1851.11.

[[Page 41838]]

    Dated: July 14, 2010.
James H. Shelton III,
Assistant Deputy Secretary for Innovation and Improvement.
[FR Doc. 2010-17580 Filed 7-16-10; 8:45 am]