FR Doc 03-26650
[Federal Register: October 22, 2003 (Volume 68, Number 204)]
[Proposed Rules]
[Page 60597-60606]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc03-30]
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Part V
Department of Education
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34 CFR Part 222
Impact Aid Programs; Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 222
RIN 1810-AA94
Impact Aid Programs
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary issues these proposed regulations to implement
the Impact Aid Discretionary Construction Program, which is authorized
under section 8007(b) of the Elementary and Secondary Education Act of
1965 (the Act), as amended by the No Child Left Behind Act of 2001. The
program provides competitive grants for emergency repairs and
modernization of school facilities to certain eligible school districts
that receive Impact Aid formula funds. These proposed regulations
incorporate statutory requirements and provide guidance for applying
and qualifying for, as well as spending, the Federal funds provided
under this program. These proposed regulations would apply to the grant
competitions after fiscal year (FY) 2002.
DATES: We must receive your comments on these proposed regulations on
or before November 21, 2003.
ADDRESSES: Address all comments about these proposed regulations to
Catherine Schagh, Director, Impact Aid Program, U.S. Department of
Education, 400 Maryland Avenue, SW., Washington, DC 20202-6244. If you
prefer to send comments through the Internet, use the following address: Impact.Aid@ed.gov.
If you want to comment on the information requirements, you must
send your comments to the Office of Management and Budget at the
address listed in the Paperwork Reduction Act of 1980 section of this
preamble. You may also send a copy of these comments to the Department
representative named in this section.
FOR FURTHER INFORMATION CONTACT: Marilyn Hall, Impact Aid Program, U.S.
Department of Education, 400 Maryland Avenue, SW., Washington, DC
20202-6244. Telephone: (202) 260-3858 or via the Internet, at: Impact.Aid@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 document in an
alternative 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 proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations. The Secretary is particularly interested
in comments on proposed Sec. Sec. 222.176, 222.185, and 222.192.
We invite you 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 proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations in Room 3C101, 400 Maryland
Avenue, SW., Washington, DC, 20202-6244 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 or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
These proposed regulations implement the Impact Aid Discretionary
Construction Program, which is authorized under section 8007(b) of the
Act, as amended by the No Child Left Behind Act of 2001 (Pub. L. 107-
110, enacted January 8, 2002). Final regulations for the FY 2002 grant
competition were published in the Federal Register on August 16, 2002.
These proposed regulations are similar to the final FY 2002
regulations, but we have included clarifying language based on our own
experiences in implementing this program. These clarifications are made
in sections 222.172, 222.173, and 222.176. These proposed regulations
are otherwise substantially identical to the final rule for FY 2002.
The purpose of the Impact Aid Discretionary Construction Program is
to assist certain eligible Impact Aid school districts in meeting the
emergency or modernization needs of their school facilities.
The following is a summary of the proposed regulatory provisions,
such as interpretations of statutory text, and standards and procedures
for the operation of the program that the Secretary believes are
necessary for implementing the statute. We discuss substantive issues
under the sections of the regulations to which they pertain. Generally,
we do not address regulatory provisions that are technical or otherwise
minor in effect.
Section 222.172 What Activities May an LEA Conduct With Funds Under
This Program?
The proposed regulations detail the types of construction
activities that recipients of emergency and modernization grants may
conduct with grant funds. The regulations clarify that allowable
repairs and improvements must be for educational facilities, and this
does not include improvements to school grounds or teacher housing.
These proposed provisions also clarify that both emergency and
modernization grants may be used for new construction only if a local
educational agency (LEA) holds title to an existing facility and the
proposed construction meets the standards detailed in the regulations
for determining that improving a current facility is less cost-
effective than replacing it.
Section 222.173 What Activities Are Prohibited?
Proposed section 222.173 specifies the various types of activities
that may not be supported with grant funds under this program. The
statute prohibits using grant funds for acquiring real property but
allows these funds to be used for the construction of a new building in
limited circumstances. Since a building is also typically considered to
be ``real property,'' the proposed provision clarifies, consistent with
the authorizing statute, that grant funds cannot be used to acquire an
interest in real property except when the Secretary determines under
Sec. 222.173 that construction of a new building will be permitted.
[[Page 60599]]
Section 222.176 What Definitions Apply to This Program?
The proposed regulations define the term ``emergency'' to include
health and safety conditions that present an immediate threat to the
building's occupants, as well as those conditions that will present
health and safety hazards in the very near future, including
accessibility for the disabled as part of a larger project. The
proposed definition also provides examples of some of the types of
health and safety conditions that the Secretary anticipates the
emergency grants will address.
The proposed provisions clarify that ``modernization'' grants must
be used to repair, renovate, alter, or extend facilities in order to
support a contemporary educational program that is consistent with the
laws, standards, or common practices in the LEA's State. Since the
Secretary anticipates that the need for these grants will exceed the
amount of available funds, this provision clarifies that the Secretary
does not intend for these grants to be used to fund facility
modernization projects that exceed a State's standards.
Sections 222.177-182 Eligibility
The statutory eligibility criteria for emergency and modernization
grants are complex and are further complicated by funding provisions
that specify, in descending priority order, two emergency grant and two
modernization grant eligibility categories. These proposed regulations
provide details on each of the four eligibility categories so that
applicants can determine under which funding priority their application
will be considered. This will be particularly important for applicants
to understand, because the statute mandates that the Secretary must
first use available funds for applications in the first priority. After
all eligible applications in the first priority have been funded, the
Secretary considers applications in the second priority, followed by
the third and fourth priorities in descending order.
Sections 222.183-187 How To Apply for a Grant
The statute does not specify a complete application process; the
proposed regulations provide for an application that requests objective
and subjective information that will be used to rank applicants. An
applicant will also be required to agree to certain assurances that are
contained in the application package. In addition, the Secretary,
before making final award decisions, will request detailed data on the
funds that the highest-ranked applicants have available to contribute
to their proposed projects. The proposed regulations specify that the
applications must be based on student and fiscal data from the
preceding fiscal year, unless satisfactory fiscal data from that year
are not available.
The regulations clarify that an applicant may submit more than one
emergency repair application for the same facility, and may also submit
both modernization and emergency repair applications for the same
facility. Emergency repair grant applications must include an
independent certification of the health and safety concerns, signed by
a local building inspector, a licensed architect, or a licensed
engineer.
Sections 222.188-194 How Grants Are Made
The Department will review applications separately among the four
funding priorities. Field readers will review the applications by
category, based on the selection criteria and any other applicable
factors that will be detailed in an application notice published in the
Federal Register. Field readers will also evaluate and make
recommendations to the Department as to whether emergency repair
applications submitted under the first and second priorities represent
valid health and safety considerations under the program definitions.
Similarly, when field readers review modernization applications under
the third and fourth priorities, they will evaluate and make
recommendations to the Department as to whether those applications
represent valid modernization considerations under the program
definitions.
Prior to making final funding decisions and determining final grant
awards, the Secretary may verify certain data with applicants' States
and will also assess available resources for all highly ranked
grantees, limitations on the grant awards for certain grantee
categories, and the availability of in-kind contributions. The
Secretary considers as available to fund the project the closing
capital fund balance identified in the LEA's audited financial report
for the prior year, not including $100,000 or ten percent of the
average annual capital expenditures of the applicant for the three
previous fiscal years, whichever is greater.
As detailed in the ``Eligibility'' portion of the proposed
regulations, the Secretary will generally fund all eligible
applications in the first application priority group before funding
applications in each of the next three groups. This will vary if the
remaining funds are insufficient to fund another project in the
highest-priority group but adequate to fund a project in the next
priority group. The next-ranked applicants in the higher-priority group
will be offered the opportunity to accept funds for a portion of their
projects before lower-priority projects are funded. If they accept the
lower grant amount, they would forfeit the right to have their
applications carried over and considered for funding in the next year's
competition. However, they could submit new applications for the next
year for the remainder of their projects. If they do not accept the
lower grant award, the application is carried over and considered in
the next year's competition.
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for administering this program effectively
and efficiently. Elsewhere in this SUPPLEMENTARY INFORMATION section we
identify and explain burdens specifically associated with information
collection requirements. See the heading Paperwork Reduction Act of
1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would 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.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
[sbull] Are the requirements in the proposed regulations clearly
stated?
[sbull] Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
[sbull] Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
[sbull] Would the proposed regulations be easier to understand if
we divided them
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into more (but shorter) sections? (A ``section'' is preceded by the
symbol ``Sec. '' and a numbered heading; for example, Sec. 222.189
What funding priority does the Secretary give to applications?)
[sbull] Could the description of the proposed regulations in the
``Supplementary Information'' section of this preamble be more helpful
in making the proposed regulations easier to understand? If so, how?
[sbull] What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations will not
have a significant economic impact on a substantial number of small
entities. The small entities that would be affected by these
regulations are small LEAs receiving Federal funds under this program.
However, in the FY 2002 grant competition, fewer than 40 applications
that were eligible to be evaluated by field readers were small
entities. In addition, we do not believe that the regulations would
have a significant economic impact on the limited number of small LEAs
affected because the regulations would not impose excessive regulatory
burdens or require unnecessary Federal supervision.
The proposed regulations would benefit both small and large
entities in that they clarify confusing and complex statutory
requirements. Also, since the statute requires Impact Aid school
districts to apply if they wish to receive these discretionary funds,
the Department would not be able to award these funds without the
specified application information. The proposed application process
will ensure that districts do not provide significant amounts of
information that is already available to the Department from annual
Impact Aid formula fund applications.
In addition, we anticipate that electronic applications will first
be available for the FY 2003 competition, which will further minimize
burden to all applicants. The software will populate certain
application data fields for applicants that submitted an FY 2003 Impact
Aid section 8003 application, and will have built-in checks for
completion of all necessary items. This software will reduce the burden
on applicants of organizing and entering data that were already
submitted to the Impact Aid Program, will help applicants determine
whether their LEAs meet the program's eligibility requirements, and
will reduce the number of errors in applications. Also, whenever
possible, certain fiscal data are collected from State agencies, which
are not defined as ``small entities'' in the Regulatory Flexibility
Act.
The regulations would impose minimal paperwork burden requirements
for all applicants and minimal requirements with which the grant
recipients must comply. However, the Secretary specifically invites
comments on the effects of the proposed regulations on small entities,
and on whether there may be further opportunities to reduce any
potential adverse impact or increase potential benefits resulting from
these proposed regulations without impeding the effective and efficient
administration of the Impact Aid Discretionary Construction Program.
Commenters are requested to describe the nature of any effect and
provide empirical data and other factual support for their views to the
extent possible. These comments will be placed in the public comment
file and considered in the preparation of the final regulations.
Paperwork Reduction Act of 1995
Sections 222.183, 222.184, 222.185, and 222.186 contain information
collection requirements. Under the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education submitted a copy of the
information collection ``Impact Aid Discretionary Construction Grant
Program'' to the Office of Management and Budget (OMB) for its review
and approval. OMB granted provisional clearance on the information
collection requirements associated with the FY 2002 grant application
package. The Department nevertheless sought public comment on these
information collection requirements for the FY 2003 application, but
did not receive any comments.
The Department will use the information collected in the
application to determine whether an applicant meets the basic
eligibility requirements of section 8007(b) of the Act, to determine
whether the applicant is requesting an emergency or modernization
grant, and to determine which of the four priorities described in the
statute applies to the application. In addition, information on the
application will be used to evaluate applications within each of the
four priorities. Among the criteria the Secretary is required to
consider are the applicant's total assessed value of real property that
may be taxed for school purposes, its use of bonding capacity, and the
nature and severity of its need for funds.
Since the statute requires applicants to apply for funds, the
Department would not be able to award these funds without the
application to collect the required information.
We collect information only once for each school for which the
applicant seeks funds. We estimate the annual reporting and
recordkeeping burden for this collection of information to average 5.25
hours for each respondent for 250 applicants, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. In addition, we estimate that 188 of these
applications will include the preparation of an emergency certification
form, requiring 0.75 hours for completion by an independent certifying
official. Thus, we estimate the total annual reporting and
recordkeeping burden for this collection to be 1,453.5 hours.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC
20503; Attention: Desk Officer for U.S. Department of Education. You
may also send a copy of these comments to the Department representative
named in the FOR FURTHER INFORMATION section of this preamble.
We consider your comments on this proposed collection of
information in--
[sbull] Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
[sbull] Evaluating the accuracy of our estimate of the burden of
the proposed collection, including the validity of our methodology and
assumptions;
[sbull] Enhancing the quality, usefulness, and clarity of the
information we collect; and
[sbull] Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submission of
responses.
Your comments will be considered for the FY 2003 competition. To
ensure that OMB gives your comments full consideration, we ask that you
send comments concerning the collection of information contained in
these regulations between 30 and 60 days
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after publication of this document in the Federal Register.
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 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:
http://www.ed.gov/news/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.
You may also view this document in PDF at the following site:
http://www.ed.gov/programs/8007b/.
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
.
(Catalog of Federal Domestic Assistance Number 84.041C Impact Aid
Discretionary Construction Program)
List of Subjects in 34 CFR Part 222
Education, Education of children with disabilities, Educational
facilities, Elementary and secondary education, Federally affected
areas, Grant programs-education, Indians--education, Public housing,
Reporting and recordkeeping requirements, School construction, Schools.
Dated: October 17, 2003.
Ronald J. Tomalis,
Acting Assistant Secretary for Elementary and Secondary Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend title 34 of the Code of Federal Regulations by revising
subpart L of part 222 to read as follows:
PART 222--IMPACT AID PROGRAMS
1. The authority citation for part 222 continues to read as
follows:
Authority: 20 U.S.C. 7701-7714, unless otherwise noted.
2. Revise subpart L of part 222 to read as follows:
Subpart L--Impact Aid Discretionary Construction Grant Program Under
Section 8007(b) of the Act
General
Sec.
222.170 What is the purpose of the Impact Aid Discretionary
Construction grant program (Section 8007(b) of the Act)?
222.171 In general, what LEAs may be eligible for Discretionary
Construction grants?
222.172 What activities may an LEA conduct with funds received under
this program?
222.173 What activities are prohibited?
222.174 What other prohibitions apply to these funds?
222.175 What regulations apply to recipients of funds under this
program?
222.176 What definitions apply to this subpart?
Eligibility
222.177 What eligibility requirements must an LEA meet to apply for
an emergency grant under the first priority?
222.178 What eligibility requirements must an LEA meet to apply for
an emergency grant under the second priority?
222.179 Under what circumstances may an ineligible LEA apply on
behalf of a school for an emergency grant under the second priority?
222.180 What eligibility requirements must an LEA meet to apply for
a modernization grant under the third priority?
222.181 What eligibility requirements must an LEA meet to apply for
a modernization grant under the fourth priority?
222.182 Under what circumstances may an ineligible LEA apply on
behalf of a school for a modernization grant under the fourth
priority?
How to Apply for a Grant
222.183 How does an LEA apply for a grant?
222.184 What information must an application contain?
222.185 What additional information must be included in an emergency
grant application?
222.186 What additional information must be included in a
modernization grant application?
222.187 Which year's data must an SEA or LEA provide?
How Grants Are Made
222.188 What priorities may the Secretary establish?
222.189 What funding priority does the Secretary give to
applications?
222.190 How does the Secretary rank and select applicants?
222.191 What is the maximum award amount?
222.192 What local funds may be considered as available for this
project?
222.193 What other limitations on grant amounts apply?
222.194 Are ``in-kind'' contributions permissible?
Conditions and Requirements Grantees Must Meet
222.195 How does the Secretary make funds available to grantees?
222.196 What additional construction and legal requirements apply?
Authority: 20 U.S.C. 7701-7714, unless otherwise noted.
General
Sec. 222.170 What is the purpose of the Impact Aid Discretionary
Construction grant program (Section 8007(b) of the Act)?
The Impact Aid Discretionary Construction grant program provides
competitive grants for emergency repairs and modernization of school
facilities to certain eligible local educational agencies (LEAs) that
receive formula Impact Aid funds.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.171 In general, what LEAs may be eligible for Discretionary
Construction grants?
(a) Applications for these grants are considered in four funding
priority categories. The specific requirements for each priority are
detailed in Sec. Sec. 222.177 through 222.182.
(b)(1) Generally, to be eligible for an emergency construction
grant, an LEA must--
(i) Enroll a high proportion (at least 40 percent) of federally
connected children in average daily attendance (ADA) who reside on
Indian lands or who reside on Federal property and have a parent on
active duty in the U.S. uniformed services;
(ii) Have a school that enrolls a high proportion of one of these
types of students;
(iii) Be eligible for funding for heavily impacted LEAs under
section 8003(b)(2) of the Act; or
(iv) Meet the specific numeric requirements regarding bonding
capacity.
(2) The Secretary must also consider such factors as an LEA's total
assessed value of real property that may be taxed for school purposes,
its availability and use of bonding capacity, and the nature and
severity of the emergency.
(c)(1) Generally, to be eligible for a modernization construction
grant, an LEA must--
(i) Be eligible for Impact Aid funding under either section 8002 or
8003 of the Act;
[[Page 60602]]
(ii) Be eligible for funding for heavily impacted LEAs under
section 8003(b)(2) of the Act;
(iii) Enroll a high proportion (at least 40 percent) of federally
connected children in ADA who reside on Indian lands or who reside on
Federal property and have a parent on active duty in the U.S. uniformed
services;
(iv) Have a school that enrolls a high proportion of one of these
types of students;
(v) Meet the specific numeric requirements regarding bonding
capacity; or
(vi) Be eligible for funding under section 8002 of the Act
(payments for Federal property).
(2) The Secretary must also consider such factors as an LEA's total
assessed value of real property that may be taxed for school purposes,
its availability and use of bonding capacity, and the nature and
severity of its need for modernization funds.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.172 What activities may an LEA conduct with funds received
under this program?
(a) An LEA may use emergency grant funds received under this
program only to repair, renovate, alter, and, in the limited
circumstances described in paragraph (c) of this section replace a
public elementary or secondary school facility used for free public
education to ensure the health and safety of students and personnel,
including providing accessibility for the disabled as part of a larger
project.
(b) An LEA may use modernization grant funds received under this
program only to renovate, alter, retrofit, extend, and, in the limited
circumstances described in paragraph (c) of this section replace a
public elementary or secondary school facility used for free public
education to provide school facilities that support a contemporary
educational program for the LEA's students at normal capacity, and in
accordance with the laws, standards, or common practices in the LEA's
State.
(c)(1) An emergency or modernization grant under this program may
be used for the construction of a new school facility but only if the
Secretary determines--
(i) That the LEA holds title to the existing facility for which
funding is requested; and
(ii) In consultation with the grantee, that partial or complete
replacement of the facility would be less expensive or more cost-
effective than improving the existing facility.
(2) When construction of new school facilities is permitted,
emergency and modernization funds may be used only for new school
facilities that are used for free public education. These may include
the--
(i) Construction of instructional, resource, food service, and
general or administrative support areas, so long as they are a part of
the instructional facility; and
(ii) Purchase of initial equipment, machinery, and initial utility
connections.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.173 What activities are prohibited?
The Secretary does not fund the following activities under a
Discretionary Construction grant:
(a) Improvements to facilities for which the LEA does not have full
title or other interest.
(b) Improvements to or repairs of school grounds, such as
environmental remediation, traffic remediation, and landscaping, that
do not directly involve instructional facilities.
(c) Repair, renovation, alteration, or construction for stadiums or
other facilities that are primarily used for athletic contests,
exhibitions, and other events for which admission is charged to the
general public.
(d) Improvements to or repairs of teacher housing.
(e) Except in the limited circumstances as provided in Sec.
222.172(c), when new construction is permissible, acquisition of any
interest in real property.
(f) Maintenance costs associated with any of an LEA's school
facilities.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.174 What other prohibitions apply to these funds?
Grant funds under this program may not be used to supplant or
replace other available non-Federal construction money. These grant
funds may be used for emergency or modernization activities only to the
extent that they supplement the amount of construction funds that
would, in the absence of these grant funds, be available to a grantee
from non-Federal funds for these purposes.
Example of supplanting: An LEA signs a contract for a $300,000 roof
replacement and plans to use its capital expenditure fund to pay for
the renovation. Since the LEA already has non-Federal funds available
for the roof project, it may not now use a grant from this program to
pay for the project or replace its own funds in order to conserve its
capital fund.
Example of non-supplanting: The LEA above that has the $300,000
roof commitment has also received a $400,000 estimate for the
replacement of its facility's heating, ventilation, and air
conditioning (HVAC) system. The LEA has not made any commitments for
the HVAC system because it has no remaining funds available to pay for
that work. Since other funds are not available, it would not be
supplanting if the LEA received an emergency grant under this program
to pay for the HVAC system.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.175 What regulations apply to recipients of funds under this
program?
The following regulations apply to the Impact Aid Discretionary
Construction program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 75 (Direct Grant Programs) except for 34 CFR
through 75.617.
(2) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(3) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(4) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments).
(5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(6) 34 CFR part 82 (New Restrictions on Lobbying).
(7) 34 CFR part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants)).
(b) The regulations in 34 CFR part 222.
(Authority: 20 U.S.C. 1221e-3)
Sec. 222.176 What definitions apply to this subpart?
(a) In addition to the terms referenced in 34 CFR Sec. 222.2, the
following definitions apply to this program:
Bond limit means the cap or limit that a State may impose on an
LEA's capacity for bonded indebtedness. For applicants in States that
place no limit on an LEA's capacity for bonded indebtedness, the
Secretary shall consider the LEA's bond limit to be ten percent of its
total assessed valuation.
Construction means (1) preparing drawings and specifications for
school facilities; (2) repairing, renovating, or altering school
facilities; (3) extending school facilities as described in Sec.
222.172(b); (4) erecting or building school facilities, as described in
Sec. 222.172(c); and (5) inspections or supervision related to school
facilities projects.
[[Page 60603]]
Emergency means a school facility condition that is so injurious or
hazardous that it either poses an immediate threat to the health and
safety of the facility's students and staff or can be reasonably
expected to pose such a threat in the near future. These conditions can
include deficiencies in the following building features: a roof;
electrical wiring; a plumbing or sewage system; or heating,
ventilation, or air conditioning; or the need to bring a school
facility into compliance with fire and safety codes, or providing
accessibility for the disabled as part of a larger project.
Level of bonded indebtedness means the amount of long-term debt
issued by an LEA divided by the LEA's bonding capacity.
Minimal capacity to issue bonds means that the total assessed value
of real property in an LEA that may be taxed for school purposes is at
least $25,000,000 but not more than $50,000,000.
Modernization means the repair, renovation, alteration, or
extension of a public elementary or secondary school facility in order
to support a contemporary educational program for an LEA's students in
normal capacity, and in accordance with the laws, standards, or common
practices in the LEA's State.
No practical capacity to issue bonds means that the total assessed
value of real property in an LEA that may be taxed for school purposes
is less than $25,000,000.
School facility means a building used to provide free public
education, including instructional, resource, food service, and general
or administrative support areas, so long as they are a part of the
facility.
Total assessed value per student means the assessed valuation of
real property per pupil (AVPP), unless otherwise defined by an LEA's
State.
(Authority: 20 U.S.C. 7707(b))
(b) Definitions in EDGAR. The following terms used in this subpart
are defined or referenced in 34 CFR 77.1:
Applicant
Application
Award
Contract
Department
EDGAR
Equipment
Fiscal year
Grant
Grantee
Project
Public
Real property
Recipient
(Authority: 20 U.S.C. 7707(b) and 1221e-3)
Eligibility
Sec. 222.177 What eligibility requirements must an LEA meet to apply
for an emergency grant under the first priority?
An LEA is eligible to apply for an emergency grant under the first
priority of section 8007(b) of the Act if it--
(a) Is eligible to receive formula construction funds for the
fiscal year under section 8007(a) of the Act;
(b)(1) Has no practical capacity to issue bonds;
(2) Has minimal capacity to issue bonds and has used at least
seventy-five percent of its bond limit; or
(3) Is eligible to receive funds for the fiscal year for heavily
impacted districts under section 8003(b)(2) of the Act; and
(c) Has a school facility emergency that the Secretary has
determined poses a health or safety hazard to students and school
personnel.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.178 What eligibility requirements must an LEA meet to apply
for an emergency grant under the second priority?
Except as provided in Sec. 222.179, an LEA is eligible to apply
for an emergency grant under the second priority of section 8007(b) of
the Act if it--
(a) Is eligible to receive funds for the fiscal year under section
8003(b) of the Act;
(b)(1) Has federally connected children living on Indian lands
equal to at least 40 percent of the total number of children in average
daily attendance (ADA) in its schools; or
(2) Has federally connected children with a parent in the U.S.
uniformed services equal to at least 40 percent of the total number of
children in ADA in its schools;
(c) Has used at least seventy-five percent of its bond limit;
(d) Has an average per-student assessed value of real property
available to be taxed for school purposes that is below its State
average; and
(e) Has a school facility emergency that the Secretary has
determined is a health or safety hazard to students and school
personnel.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.179 Under what circumstances may an ineligible LEA apply on
behalf of a school for an emergency grant under the second priority?
An LEA that is eligible to receive section 8003(b) assistance for
the fiscal year but that does not meet the other eligibility criteria
described in Sec. 222.178(a) or (b) may apply on behalf of a school
located within its geographic boundaries for an emergency grant under
the second priority of section 8007(b) of the Act if--
(a) The school--
(1) Has children living on Indian lands equal to at least 40
percent of the total number of children in ADA; or
(2) Has children with a parent in the U.S. uniformed services equal
to at least 40 percent of the total number of children in ADA;
(b) The school has a school facility emergency that the Secretary
has determined is a health or safety hazard to students and school
personnel;
(c) The LEA has used at least 75 percent of its bond limit; and
(d) The LEA has an average per-student assessed value of real
property available to be taxed for school purposes that is below its
State average.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.180 What eligibility requirements must an LEA meet to apply
for a modernization grant under the third priority?
An LEA is eligible to apply for a modernization grant under the
third priority of section 8007(b) of the Act if it--
(a) Is eligible to receive funds for the fiscal year under section
8002 or 8003(b) of the Act;
(b)(1) Has no practical capacity to issue bonds;
(2) Has minimal capacity to issue bonds and has used at least 75
percent of its bond limit; or
(3) Is eligible to receive funds for the fiscal year for heavily
impacted districts under section 8003(b)(2) of the Act; and
(c) Has facility needs resulting from the presence of the Federal
Government, such as the enrollment of federally connected children, the
presence of Federal property, or an increase in enrollment due to
expanded Federal activities, housing privatization, or the acquisition
of Federal property.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.181 What eligibility requirements must an LEA meet to apply
for a modernization grant under the fourth priority?
An LEA is eligible to apply for a modernization grant under the
fourth priority of section 8007(b) of the Act if it--
(a)(1) Is eligible to receive funds for the fiscal year under
section 8003(b) of the Act; and
(i) Has children living on Indian lands equal to at least 40
percent of the total number of children in ADA in its schools; or
(ii) Has children with a parent in the U.S. uniformed services
equal to at least 40 percent of the total number of children in ADA in
its schools; or
[[Page 60604]]
(2) Is eligible to receive assistance for the fiscal year under
section 8002 of the Act;
(b) Has used at least 75 percent of its bond limit;
(c) Has an average per-student assessed value of real property
available to be taxed for school purposes that is below its State
average; and
(d) Has facility needs resulting from the presence of the Federal
Government, such as the enrollment of federally connected children, the
presence of Federal property, or an increase in enrollment due to
expanded Federal activities, housing privatization, or the acquisition
of Federal property.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.182 Under what circumstances may an ineligible LEA apply on
behalf of a school for a modernization grant under the fourth priority?
An LEA that is eligible to receive a payment under Title VIII for
the fiscal year but that does not meet the other eligibility criteria
described in Sec. 222.181 may apply on behalf of a school located
within its geographic boundaries for a modernization grant under the
fourth priority of section 8007(b) of the Act if--
(a) The school--
(1) Has children living on Indian lands equal to at least 40
percent of the total number of children in ADA; or
(2) Has children with a parent in the U.S. uniformed services equal
to at least 40 percent of the total number of children in ADA;
(b) The LEA has used at least 75 percent of its bond limit;
(c) The LEA has an average per-student assessed value of real
property available to be taxed for school purposes that is below its
State average; and
(d) The school has facility needs resulting from the presence of
the Federal Government, such as the enrollment of federally connected
children, the presence of Federal property, or an increase in
enrollment due to expanded Federal activities, housing privatization,
or the acquisition of Federal property.
(Authority: 20 U.S.C. 7707(b))
How To Apply for a Grant
Sec. 222.183 How does an LEA apply for a grant?
(a) To apply for funds under this program, an LEA may submit more
than one application in a fiscal year.
Examples: 1. An LEA wants to receive both an emergency and a
modernization grant for one school that has a failing roof and that
also needs significant classroom modernization. The LEA would submit
an emergency repair grant application to address the roof issues and
a separate modernization application to request funds to renovate
classroom space.
2. An LEA has five schools and seeks emergency grants to replace
a roof and a boiler in one school and to replace windows in a second
school. It should submit two applications--one for each of the two
school facilities.
3. An LEA has one school that has several conditions that need
to be corrected--a failing roof, aging windows that impair the
efficiency of the heating system, and asbestos in floor tiles. The
LEA may submit a single application for all of these conditions or
separate emergency repair grant applications for each condition, if
the LEA judges that they present varying degrees of urgency.
(b) An application must--
(1) Contain the information required in Sec. Sec. 222.184 through
222.186, as applicable, and in any application notice that the
Secretary may publish in the Federal Register; and
(2) Be timely filed in accordance with the provisions of the
Secretary's application notice.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.184 What information must an application contain?
An application for an emergency or modernization grant must contain
the following information:
(a) The name of the school facility the LEA is proposing to repair,
construct, or modernize.
(b)(1) For an applicant under section 8003(b) of the Act, the
number of federally connected children described in section 8003(a)(1)
enrolled in the school facility, as well as the total enrollment in the
facility, for which the LEA is seeking a grant; or
(2) For an applicant under section 8002 of the Act, the total
enrollment (based on the fall State count date) for the preceding year
in the LEA and in the school facility for which the LEA is seeking a
grant.
(c) An identification of the LEA's interest in, or authority over,
the school facility involved, such as an ownership interest or a lease
arrangement.
(d) The original construction date of the school facility that the
LEA proposes to renovate or modernize.
(e) The dates of any major renovations of that school facility and
the areas of the school covered by the renovations.
(f) The proportion of Federal acreage within the geographic
boundaries of the LEA.
(g) Fiscal data including the LEA's--
(1) Maximum bonding capacity;
(2) Amount of bonded debt;
(3) Total assessed value of real property for school purposes;
(4) State average assessed value per pupil of real property that
was taxed for school purposes;
(5) Local real property tax levy, in mills or dollars, that was
used for capital expenditures; and
(6) Sources of funds available for the proposed project.
(h) A description of the need for funds and the proposed project
for which a grant under this subpart would be used, including a cost
estimate for the project.
(i) Applicable assurances and certifications identified in the
approved grant application package.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.185 What additional information must be included in an
emergency grant application?
In addition to the information specified in Sec. 222.184, an
application for an emergency grant must contain the following:
(a) A description of the deficiency that poses a health or safety
hazard to occupants of the facility.
(b) A description of how the deficiency adversely affects the
occupants and how it will be repaired.
(c) A statement signed by an appropriate local official, as defined
below, that the deficiency threatens the health and safety of occupants
of the facility or prevents the use of the facility. An appropriate
local official may include a local building inspector, a licensed
architect, or a licensed structural engineer. An appropriate local
official may not include a staff person of the applicant LEA.
(Authority: 20 U.S.C. 7707 (b))
Sec. 222.186 What additional information must be included in a
modernization grant application?
In addition to the information specified in Sec. 222.184, an
application for a modernization grant must contain a description of--
(a) The need for modernization; and
(b) How the applicant will use funds received under this program to
address the need referenced in paragraph a of this section.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.187 Which year's data must an SEA or LEA provide?
(a) Except as provided in paragraph (b) of this section, the
Secretary will determine eligibility under this Discretionary Program
based on student and fiscal data for each LEA from the fiscal year
preceding the fiscal year for which the applicant is applying for
funds.
(b) If satisfactory fiscal data are not available from the
preceding fiscal year, the Secretary will use data from the most recent
fiscal year for which data
[[Page 60605]]
that are satisfactory to the Secretary are available.
(Authority: 20 U.S.C. 7707(b))
How Grants Are Made
Sec. 222.188 What priorities may the Secretary establish?
In any given year, the Secretary may assign extra weight for
certain facilities systems or emergency and modernization conditions by
identifying the systems or conditions and their assigned weights in a
notice published in the Federal Register.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.189 What funding priority does the Secretary give to
applications?
(a) Except as provided in paragraph (b) of this section, the
Secretary gives funding priority to applications in the following
order:
(1) First priority is given to applications described under Sec.
222.177 and, among those applicants for emergency grants, priority is
given to applications based on a rank order of the application quality
factors referenced in Sec. 222.190, including the severity of the
emergency.
(2) After all eligible first-priority applications are funded,
second priority is given to applications described under Sec. Sec.
222.178 and 222.179 and, among those applicants for emergency grants,
priority is given to applications based on a rank order of the
application quality factors referenced in Sec. 222.190, including the
severity of the emergency.
(3) Third priority is given to applications described under Sec.
222.180 and, among those applicants for modernization grants, priority
is given to applications based on a rank order of the application
quality factors referenced in Sec. 222.190, including the severity of
the need for modernization.
(4) Fourth priority is given to applications described under
Sec. Sec. 222.181 and 222.182 and, among those applicants for
modernization grants, priority is given to applications based on a rank
order of the application quality factors referenced in Sec. 222.190,
including the severity of the need for modernization.
(b)(1) The Secretary makes awards in each priority described above
until the Secretary is unable to make an approvable award in that
priority.
(2) If the Secretary is unable to fund a full project or a viable
portion of a project, the Secretary may continue to fund down the list
of high-ranking applicants within a priority.
(3) The Secretary applies any remaining funds to awards in the next
priority.
(4) If an applicant does not receive an emergency or modernization
grant in a fiscal year, the Secretary will, subject to the availability
of funds and to the priority and award criteria, consider that
application in the following year along with the next fiscal year's
pool of applications.
Example: The first five applicants in priority one have been
funded. Three hundred thousand dollars remain available. Three
unfunded applications remain in that priority. Application
6 requires a minimum of $500,000, application 7
requires $400,000, and application 8 requires $300,000 for
a new roof and $150,000 for related wall and ceiling repairs.
Applicant 8 agrees to accept the remaining $300,000 since
the roof upgrade can be separated into a viable portion of applicant
8's total project. Applications 6 and 7
will be retained for consideration in the next fiscal year and will
compete again with that fiscal year's pool of applicants. Applicant
8 will have to submit a new application in the next fiscal
year if it wishes to be considered for the unfunded portion of the
current year's application.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.190 How does the Secretary rank and select applicants?
(a) To the extent consistent with these regulations and section
8007(b) of the Act, the Secretary will follow grant selection
procedures that are specified in 34 CFR 75.215 through 75.222. In
general these procedures are based on the authorizing statute, the
selection criteria, and any priorities or other applicable requirements
that have been published in the Federal Register.
(b) In the event of ties in numeric ranking, the Secretary may
consider as tie-breaking factors: The severity of the emergency or the
need for modernization; for applicants under section 8003 of the Act,
the numbers of federally connected children who will benefit from the
project; or for applicants under section 8002 of the Act, the numbers
of children who will benefit from the project; the AVPP compared to the
LEA's State average; and available resources or non-Federal funds
available for the grant project.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.191 What is the maximum award amount?
(a) Subject to any applicable contribution requirements as
described in Sec. Sec. 222.192 and 222.193, the procedures in
Sec. Sec. 75.231 through 75.236, and the provisions in paragraph (b)
of this section, the Secretary may fund up to 100 percent of the
allowable costs in an approved grantee's proposed project.
(b) An award amount may not exceed the difference between--
(1) The cost of the proposed project; and
(2) The amount the grantee has available or will have available for
this purpose from other sources, including local, State, and other
Federal funds.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.192 What local funds may be considered as available for this
project?
To determine the amount of local funds that an LEA has available
under Sec. 222.191(b)(2) for a project under this program, the
Secretary will consider as available all LEA funds that may be used for
capital expenditures except $100,000 or ten percent of the average
annual capital expenditures of the applicant for the three previous
fiscal years, whichever is greater.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.193 What other limitations on grant amounts apply?
(a) Except as provided in paragraph (b) of this section and Sec.
222.191, the amount of funds provided under an emergency grant or a
modernization grant awarded under this subsection to an eligible LEA is
subject to the following limitations:
(1) The award amount may not be more than 50 percent of the total
cost of an approved project.
(2) The total amount of grant funds may not exceed four million
dollars during any four-year period.
Example: An LEA that is awarded $4 million dollars in the first
year may not receive any additional funds for the following three
years.
(b) Emergency or modernization grants to LEAs with no practical
capacity to issue bonds as defined in Sec. 222.176 are not subject to
the award limitations described in paragraph (a) of this section.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.194 Are ``in-kind'' contributions permissible?
(a) LEAs that are subject to the applicable matching requirement
described in Sec. 222.193(a) may use allowable third party in-kind
contributions as defined below to meet the requirements.
(b) Third party in-kind contributions mean property or services
that benefit this grant program and are contributed by non-Federal
third parties without charge to the grantee or by a cost-type
contractor under the grant agreement.
(c) The provisions of 34 CFR 80.24 govern the allowability and
valuation of in-kind contributions, except that it is permissible for a
third party to contribute real property to a grantee for
[[Page 60606]]
a project under this program, so long as no Federal funds are spent for
the acquisition of real property.
(Authority: 20 U.S.C. 7707(b))
Conditions and Requirements Grantees Must Meet
Sec. 222.195 How does the Secretary make funds available to grantees?
The Secretary makes funds available to a grantee during a project
period using the following procedure:
(a) Upon final approval of the grant proposal, the Secretary
authorizes a project period of up to 60 months based upon the nature of
the grant proposal and the time needed to complete the project.
(b) The Secretary then initially makes available to the grantee 10
percent of the total award amount.
(c) After the grantee submits a copy of the emergency or
modernization contract approved by the grantee's governing board, the
Secretary makes available 80 percent of the total award amount to a
grantee.
(d) The Secretary makes available up to the remaining 10 percent of
the total award amount to the grantee after the grantee submits a
statement that--
(1) Details any earnings, savings, or interest;
(2) Certifies that--
(i) The project is fully completed; and
(ii) All the awarded funds have been spent for grant purposes; and
(3) Is signed by the--
(i) Chairperson of the governing board;
(ii) Superintendent of schools; and
(iii) Architect of the project.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.196 What additional construction and legal requirements
apply?
(a) Except as provided in paragraph (b) of this section, a grantee
under this program must comply with--
(1) The general construction legal requirements identified in the
grant application assurances;
(2) The prevailing wage standards in the grantee's locality that
are established by the Secretary of Labor in accordance with the Davis-
Bacon Act (40 U.S.C. 276a, et seq.); and
(3) All relevant Federal, State, and local environmental laws and
regulations.
(b) A grantee that qualifies for a grant because it enrolls a high
proportion of federally connected children who reside on Indian lands
is considered to receive a grant award primarily for the benefit of
Indians and must therefore comply with the Indian preference
requirements of section 7(b) of the Indian Self-Determination Act.
(Authority: 20 U.S.C. 7707(b) and 1221e-3)
[FR Doc. 03-26650 Filed 10-21-03; 8:45 am]
BILLING CODE 4000-01-U