FR Doc 2010-14730
[Federal Register: June 18, 2010 (Volume 75, Number 117)]
[Notices]               
[Page 34891-34910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn10-109]                               

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Part III





Department of Education





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Carol M. White Physical Education Program; Notices


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DEPARTMENT OF EDUCATION

 
Carol M. White Physical Education Program; Catalog of Federal 
Domestic Assistance (CFDA) Number: 84.215F

AGENCY: Office of Safe and Drug-Free Schools, Department of Education.

ACTION: Notice of final priorities, requirements, and definitions.

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SUMMARY: The Assistant Deputy Secretary for Safe and Drug-Free Schools 
announces priorities, requirements, and definitions for the Carol M. 
White Physical Education Program (PEP). The Assistant Deputy Secretary 
may use one or more of these priorities, requirements, and definitions 
for competitions in fiscal year (FY) 2010 and later years. We take this 
action to align PEP projects more closely with best practices and 
research related to improving children's health and fitness, to improve 
students' physical activity, and to improve students' ability to meet 
their State physical education standards.

DATES: Effective Date: These priorities, requirements, and definitions 
are effective July 19, 2010.

FOR FURTHER INFORMATION CONTACT: Carlette Huntley, U.S. Department of 
Education, 550 12th Street, SW., Room 10071, PCP, Washington, DC, 
20202-6450. Telephone: (202) 245-7871 or by e-mail: 
Carlette.Huntley@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: The purpose of PEP is to initiate, expand, and 
improve physical education for students in grades K-12.

    Program Authority: 20 U.S.C. 7261-7261f.

    Applicable Program Regulations: 34 CFR part 299.
    We published a notice of proposed priorities, requirements, and 
definitions (NPP) in the Federal Register on March 16, 2010 (75 FR 
12522). That notice contained background information and our reasons 
for proposing the particular priorities, requirements, and definitions.
    There are several differences between the NPP and this notice of 
final priorities, requirements, and definitions (NFP) as discussed in 
the Analysis of Comments and Changes section elsewhere in this notice.
    Public Comment: In response to our invitation in the NPP, 59 
parties submitted comments on the proposed priorities, requirements, 
and definitions.
    We discuss substantive issues under the title of the item to which 
they pertain. Generally, we do not address technical and other minor 
changes, or suggested changes we are not authorized to make under the 
applicable statutory authority. In addition we do not address general 
comments that raised concerns not directly related to the proposed 
priorities or requirements.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priorities, requirements, and definitions since 
publication of the NPP follows.

Absolute Priority--Programs Designed To Create Quality Physical 
Education Programs

    Comment: One commenter suggested rewriting the absolute priority to 
include improving physical education as an educational outcome.
    Discussion: We consider an improvement in physical education to be 
an educational outcome and do not see the need to include additional 
outcomes. The absolute priority clearly requires applicants to propose 
projects that address physical education. More specifically, the 
absolute priority requires every applicant to develop, expand, or 
improve its physical education program and address its State's physical 
education standards. Additionally, an applicant must provide 
instruction in healthy eating habits and implement at least one of the 
other program elements as described in the program statute (see 
sections 5501-5507 of the Elementary and Secondary Education Act of 
1965, as amended; 20 U.S.C. 7261-7261f). These 2010 program 
requirements will help applicants develop a strategic approach to 
improving physical education and nutrition instruction by requiring an 
assessment of local efforts to address identified deficiencies.
    Changes: None.
    Comment: Some commenters suggested that encouraging students to 
engage in moderate to vigorous exercise should be the primary focus of 
PEP. Some commenters also suggested that increasing the proportion of 
time in which students in physical education classes are active should 
be a priority.
    Discussion: We agree that moderate to vigorous physical activity by 
students and increasing the proportion of time that students are active 
in physical education classes are important outcomes for physical 
education programs, but disagree with the commenters that these should 
be the exclusive or primary focus of PEP. Instead, we believe that a 
comprehensive approach, incorporating both high-quality physical 
education and nutrition instruction strategies, offers the best 
opportunity for students to acquire the knowledge and skills necessary 
to help them understand the complementary relationship between physical 
education and nutrition, and the role that both of these areas can play 
in improving their health.
    Further, we believe that the program requirements we are 
establishing will promote the types of programs that will improve the 
percentage of students who engage in moderate to vigorous physical 
activity during physical education classes and throughout the day. 
Through these requirements, we highlight the importance of initiatives 
that move students from being sedentary, often because of a lack of 
high-quality programming, to being more active, and towards a lifestyle 
that includes moderate to vigorous physical activity in various 
settings, including in physical education classes. The requirements 
reflect an approach that looks not just at student-level improvements, 
but at broad, systemic changes that will be sustained over time to 
continually improve opportunities for students to engage in moderate to 
vigorous physical activity. If grantees would like to assess the time 
that students engage in moderate to vigorous physical activity, we 
would encourage them to do so and have designed at least one of our 
required performance measures to support this type of assessment. For 
all of these reasons, we believe that improvements to physical 
education programs under PEP will result in more active time for 
students during physical education classes, resulting in improved 
student outcomes, and that there is no need to focus explicitly on 
moderate to vigorous physical activity and increased activity time in 
physical education classes as part of the absolute priority.
    Changes: None.
    Comment: One commenter suggested that all six of the PEP elements 
included in the program's authorizing statute be part of all quality 
physical education programs.
    Discussion: We agree that all six elements are important facets of 
a comprehensive program, and applicants may propose to include all six 
elements as part of their proposed project if desired. At this time, 
however, we are not requiring applicants to include in their projects 
all six of the PEP program elements, because we want to provide 
flexibility for applicants to select approaches and activities that are 
linked to the priority needs identified for their schools and 
communities. We believe the absolute priority appropriately balances 
the positive aspects of moving to a more comprehensive approach with

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flexibility for applicants to design a project that effectively 
addresses their particular needs.
    Changes: None.
    Comment: One commenter expressed concern that the competitive 
preference priorities do not address the absolute priority.
    Discussion: The competitive preference priorities are designed to 
encourage applicants to develop proposals that will result in stronger 
PEP projects within the context of the absolute priority.
    We note that, in our judgment, the adoption of either, or both, of 
the approaches identified as competitive preference priorities is 
likely to produce superior results. Both competitive preference 
priorities are likely to enhance long-term sustainability by 
encouraging efforts to leverage community resources and to build 
community investment in the program (partnership), and also efforts to 
provide data to policymakers so that they can make informed decisions 
about budget and programming in the future. An effective PEP project 
could be implemented without a grantee engaging in either competitive 
preference priority, which is why we opted not to require either or 
both.
    Changes: None.
    Comment: One commenter expressed a desire to increase 
accountability in PEP, and suggested that adding the term 
``assessment'' to each of the program elements in the absolute priority 
would emphasize the need for assessment to be part of activities 
implemented as part of a PEP grant.
    Discussion: We agree that PEP would be strengthened by increasing 
the emphasis on assessment, evaluation, and accountability, and have 
already incorporated requirements in the final priorities, 
requirements, and definitions to address this concern. For example, we 
are ensuring accountability in the program by requiring the use of 
assessment tools such as the Physical Education Curriculum Assessment, 
the Health Education Curriculum Assessment, and the School Health 
Index, all of which enhance program assessment. As a result, we do not 
believe that it is necessary to make the change suggested by the 
commenter.
    Changes: None.
    Comment: Several commenters expressed a concern that requiring PEP 
grantees to address the program element related to nutrition 
instruction would weaken the focus on physical education and dilute 
limited funding available to support activities designed to improve 
physical education.
    Discussion: We believe that a PEP project that incorporates both 
high-quality physical education and nutrition instruction strategies 
offers the best opportunity for students to acquire the information and 
skills necessary to help them understand the complementary relationship 
between physical education and nutrition, and understand the role that 
physical activity and nutrition can play in improving and maintaining 
their health.
    Furthermore, the legislation authorizing PEP has always included 
nutrition instruction as a program element and a significant number of 
past PEP grantees have elected to incorporate nutrition instruction in 
their projects. Generally, costs associated with including nutrition 
instruction have represented a fairly modest proportion of project 
funds, especially when compared to the costs of purchasing fitness 
equipment.
    Changes: None.
    Comment: Several commenters asked us to emphasize in the absolute 
priority the use of evidence-based approaches or established best 
practices in the field. For example, some commenters suggested that the 
Department focus the priority on research-based curriculum design, 
which is common in other subjects such as math, reading, and science, 
and encourage use of similar strategies for physical education, 
including alignment of curriculum, instruction, and assessment; other 
commenters stated that the Department should emphasize a variety of 
evidence-based approaches for which information is readily available 
via the Internet. Another commenter suggested that we fund only 
programs that use evidence-based approaches.
    Discussion: We agree that use of research-based programs and 
established best practices strategies by PEP grantees would likely 
improve program outcomes. However, there is a limited research base of 
effective programs and strategies that would be applicable to the scope 
of PEP and relevant to all communities and applicants, and 
additionally, we want to encourage innovation in this area. We believe 
that the program requirements that require implementation of the School 
Health Index (SHI) assessment, as well as of the Physical Activity 
Curriculum Analysis Tool (PECAT) and the Health Education Curriculum 
Analysis Tool (HECAT) curriculum assessments will help applicants 
compare their current activities to established best practices in the 
field.
    We provide examples of a range of resources for evidence-based 
practices in the application package, including some of those suggested 
by one commenter. We encourage applicants to refer to those resources, 
as well as other resources, to design an evidence-based program that 
addresses the applicant's greatest needs.
    Changes: None.
    Comment: One commenter requested that we more clearly define what 
we mean by the absolute priority elements concerning motor skills, 
physical activity, and the development of positive social and 
cooperative skills.
    Discussion: We believe that the statutory language is sufficiently 
clear; these are terms that are commonly understood in the field or may 
be specifically defined in State standards. Accordingly, we do not 
believe it is necessary to define them here.
    Changes: None.

Competitive Preference Priority 1--Collection of Body Mass Index 
Measurement

    Comment: One commenter suggested that PEP grantees secure BMI 
information from physicians' offices and that this approach would help 
address some of the issues related to collection of BMI data, including 
privacy concerns and the need to purchase equipment and provide 
training on collecting BMI data.
    Discussion: We believe that the approach suggested by the commenter 
would introduce different data collection and reporting challenges. For 
example, it is unlikely that all students have regular physicians that 
maintain wellness and other records. Also, physicians might not have 
collected BMI information and could not be compelled to furnish this 
information if it is available. Grantees and physicians would also need 
to be sure that requirements are satisfied concerning the non-
consensual sharing of any protected health-related information or 
personally identifiable information from education records, such as the 
requirements contained in Federal, State, and local laws, regulations, 
and policies regarding student level data collection and privacy.
    Changes: None.
    Comment: One commenter urged the Department to exercise caution in 
using measures such as BMI to measure progress for the program, and 
indicated that the measures required under the Government Performance 
and Results Act of 1993 (GPRA) included in requirement 9 are more 
appropriate measures for short-term grant projects.
    Discussion: We agree with the commenter. The competitive preference 
priority concerning BMI is designed to provide important aggregate 
information

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about the health status of students generally, and should serve as a 
surveillance tool for grantees that elect to implement the priority, 
not as a measure of program performance. We believe that the 
performance measures included as part of requirement 9 will complement 
the collection of BMI data by providing a range of measures that will 
permit grantees to assess improvements in several key areas, and 
provide data that the Department can use to help assess the overall 
effectiveness of PEP.
    Changes: None.
    Comment: Some commenters expressed concerns about the need to have 
appropriate supports in place for students and families when BMI data 
are reported. For example, one commenter expressed concern that the 
collection and reporting of BMI data to students and parents without 
appropriate information could be associated with an increase in eating 
disorders and urged the Department to provide technical assistance to 
PEP grantees to help address this concern. Another commenter suggested 
that grantees collecting BMI data have a system in place to refer 
students with weight concerns to qualified health professionals for 
additional assessment and intervention if that is needed.
    Discussion: We agree that careful consideration should be given to 
the complex policy and practice questions related to BMI data 
collection, particularly if BMI information is to be shared with both 
students and parents. The competitive preference priority requires that 
grantees who choose to address the priority ensure that their plan 
includes resources for safe and effective follow-up with trained 
medical care providers when BMI data suggest that such follow-up 
services are needed.
    We plan to include in the application package a reference to 
available resources to help applicants implement these kinds of 
activities in the safest and most effective way possible, including the 
Centers for Disease Control and Prevention's (CDC) Children's BMI Tool 
for Schools; that information is available online at http://
www.cdc.gov/healthyyouth/obesity/bmi/. We will also offer technical 
assistance to applicants and grantees to ensure that students' privacy 
is protected and that procedures are carried out in a manner that is 
confidential and sensitive to all students' privacy.
    We note that recent research shows no increase in eating disorders 
or disordered eating behaviors following an increased focus on obesity 
prevention. Data from Arkansas, where schools have been collecting BMI 
from students for several years, show no increase in eating 
disorders.\1\
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    \1\ Schwarz M. and Henderson K. Does obesity prevention cause 
eating disorders? J Am Acad Child Adolesc Psychiatry, 2009, 
48(8):784-786.
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    Changes: None.
    Comment: Several commenters suggested that we use an additional or 
alternative measure to BMI to assess population health status and the 
impact of PEP, including measures collected by a commercial fitness 
assessment tool, bioelectric impedance, skin fold tests, or measures 
such as attendance and academic performance that may correlate with 
fitness and health.
    Discussion: BMI is relatively easy to measure, can be done quickly 
and non-invasively, and provides a standard tool for measuring and 
assessing student weight status across a site or between sites. We have 
opted to use the CDC's BMI-for-age growth charts as our standard for 
measurement and assessment because this approach represents the 
recommended method of reporting size and growth patterns among children 
in the United States. The CDC BMI-for-age growth charts provide a full 
array of percentile levels, which allows for greater interpretation of 
weight status in the population and among individuals. The CDC 2000 
growth charts provide the best reference data available for the growth 
of U.S. children. Additionally, using the same method for interpreting 
BMI data collection will allow for data comparisons across PEP sites.
    Applicants that opt to undertake BMI measurement and assessment as 
part of their project should describe their plan to obtain student-
level data, consistent with the Family Education Rights and Privacy Act 
(FERPA) and the Protection of Pupil Rights Act Amendment (PPRA), which 
may be done using commercial fitness testing products that applicants 
may already have in use. The raw height and weight data collected using 
this tool can be easily converted to correspond with the CDC BMI-for-
age growth charts, which must be used to be responsive to the 
competitive preference priority.
    Changes: None.
    Comment: One commenter expressed concern about BMI measurement and 
the lack of evidence that use of BMI measurements will lead to more 
physical activity or improved physical education programs.
    Discussion: The use of BMI assessment data under this competitive 
priority is intended to create a mechanism to understand trends at the 
population level, including in the context of the other required 
measures of this program, in fitness, physical activity, and nutrition, 
and how the combination of these measures can be used to improve 
physical education programming and policy, and potentially help 
students meet their State standards for physical education.
    The use of BMI assessment data would inform program planners about 
overall trends in the population's weight status, which may be used to 
inform decisions about programming and policy at the program site and 
in the broader community. BMI data are not intended to be used to 
measure a project's success; projects might not even reasonably expect 
to see major changes in BMI scores during the project period. Rather, 
applicants that choose to address the competitive preference priority 
for collecting and reporting BMI data should consider how BMI 
information would be used in the context of the required measures for 
PEP. We also encourage applicants who choose to address this priority 
to use this opportunity to create or enhance sustainable systems that 
can be used to make data-based decisions for continuous program 
improvement.
    Changes: None.
    Comment: Some commenters expressed concern that some States permit 
the collection and use of BMI data, while other States might prohibit 
or have restrictions on the collection and use of such data. One 
commenter cited States that already require the use of BMI data, 
potentially providing an advantage to applicants from those States. 
Similarly, another commenter suggested that some States may prohibit 
BMI assessment and that including BMI assessment as a competitive 
preference priority would place applicants from those States at a 
disadvantage. These commenters suggested that if BMI assessment is 
included in the program, that applicants not receive any additional 
points for electing to implement a plan to use such data.
    Discussion: While applicants that are already collecting BMI data 
may be able to implement the competitive preference priority more 
quickly if their project is funded, they will not have any advantage 
over other applicants because the priority requires only that 
applicants demonstrate their commitment to addressing the elements of 
the priority by including an assurance with their application. Grantees 
will be able to use program funds to obtain equipment, training, and 
other resources necessary to assist them in effectively implementing 
this competitive preference priority, helping to level the playing 
field for all applicants.
    We do not believe that there are any States that prohibit BMI data 
collection,

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but we encourage applicants to understand and follow Federal, State, 
and local laws, regulations, and policies regarding student-level data 
collection and privacy.
    Change: None.
    Comment: One commenter suggested that the complexity involved with 
BMI data collection could discourage smaller educational entities and 
communities from applying for a grant.
    Discussion: We understand that collecting and reporting BMI data 
might pose challenges for applicants. If small school districts or 
communities need additional assistance to implement the competitive 
preference priority, they should include costs associated with 
collecting and reporting BMI data in their proposed budget. Allowable 
costs might include, for example, additional staff time to facilitate 
collection and reporting, purchase of needed equipment, purchase of 
technical assistance services, professional development costs, or 
resources to develop and disseminate information to parents and the 
community about BMI data.
    Changes: None.
    Comment: We received several comments expressing concern that BMI 
data interpreted in isolation at the individual level might not provide 
an accurate assessment of health status, particularly for athletes, or 
at the program level to assess project goals.
    Discussion: The intent of the BMI data collection is to provide a 
population-level analysis of the weight status of the student 
population, at the school, site, or district level. Although applicants 
should consider whether and how individual assessments may be shared 
with students and their families, the intent of this priority is 
focused on population surveillance. BMI assessment is also not 
necessarily intended to serve as an assessment of the program's short- 
or long-term goals. Program planners should consider how they will use 
the data to assess the impact of the program on the population's weight 
patterns but we expect that the changes as a result of PEP 
implementation may take longer than the project period. We have 
measures to assess the project's goals, such as physical activity, that 
are, in theory, directly affected by the activities that grantees will 
implement.
    Changes: None.
    Comment: Two commenters suggested that the Department provide 
specific instructions on how to collect BMI data. The commenters stated 
that this information should be included on CDC's Web site.
    Discussion: We agree that careful planning and training should be 
undertaken for projects that elect to address the proposed competitive 
preference priority concerning BMI assessment. As a result, we plan to 
include in the application package a reference to examples of available 
resources, including CDC's Children's BMI Tool for Schools, to help 
implement these kinds of activities in the safest and most effective 
way possible. This information is available on the CDC's Web site at: 
http://www.cdc.gov/healthyyouth/obesity/ bmi/.
    Changes: None.
    Comment: One commenter questioned why parental permission would be 
necessary to collect BMI data since overall fitness testing or other 
assessments do not require parental permission.
    Discussion: The competitive preference priority requires that 
parents be given the opportunity to have their child opt out of the BMI 
assessment after they have been informed of this choice. Applicants who 
wish to address the competitive preference priority related to BMI 
assessment are required to sign a Program-Specific Assurance that they 
will include parents in the development and implementation of their 
protocols to collect and report BMI data.
    The final priorities, requirements, and definitions also reference 
the Federal Policy for the Protection of Human Subjects. Grantees that 
engage in BMI data collection could be subject to the U.S. Department 
of Education's Protection of Human Subjects regulations found in 34 CFR 
part 97 if the data are used in research funded by the Federal 
Government or for any future research conducted by an institution that 
has adopted the Federal policy for all research of that institution.
    Grantees will need to review carefully the scope and design of 
their project to determine if parental permission for collecting and 
reporting BMI data is required by State or local laws, regulations, or 
policies, if applicable. We will provide technical assistance to 
grantees to help them make this determination.
    Changes: None.
    Comment: One commenter believed that by requiring the collection of 
BMI data, grantees would be compelled to purchase a commercial fitness 
assessment product.
    Discussion: The use of a commercial product is not necessary to 
collect BMI data. Grantees can effectively collect BMI data without a 
specific fitness assessment product. In fact, many districts are 
conducting population-based BMI assessments with fairly simple 
equipment and spending more time and resources developing protocols and 
engaging in professional development to ensure that the assessment is 
done accurately and with sensitivity to students.
    Grantees should design a program that is commensurate with their 
identified needs and propose a budget that is commensurate with that 
project design. Because BMI assessment is a competitive preference 
priority, applicants can opt not to undertake that collection. If, 
however, an applicant commits to undertaking BMI assessment, the 
applicant should determine the most appropriate methods and tools for 
undertaking this activity. While the grant does allow for costs 
associated with needed equipment, technical assistance, and resource 
products, the Department does not require, recommend, or endorse the 
purchase or use of any particular commercial product for meeting this 
priority.
    Changes: None.
    Comment: Some commenters requested that we change the competitive 
preference priority to an invitational priority.
    Discussion: We believe the collection of BMI data has value in 
helping programs identify the percentage of students who might be 
obese, overweight, normal weight, and underweight, thus allowing them 
to better understand the needs of the population they serve. As such, 
we have opted to give competitive preference to applicants that choose 
to undertake this activity.
    Changes: None.

Competitive Preference Priority 2--Partnerships Between Applicants and 
Supporting Community Entities

    Comment: Several commenters expressed a concern about the 
requirement to include the ``head of local government,'' as a required 
partner in order to satisfy the proposed competitive preference 
priority concerning partnerships. Specifically, commenters doubted that 
the head of local government would have time to play a meaningful role 
in a PEP project and were also concerned about the difficulty of 
securing support from the head of local government, particularly in 
large urban areas. One commenter expressed concern that requiring 
involvement of the head of local government would inject a political 
element into the grant.
    Discussion: Although we believe that the head of local government 
can

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provide a significant leadership role in community-wide efforts to 
improve physical education, increase levels of physical activity, and 
enhance knowledge about nutrition and healthy eating, we understand 
that in some communities it may be difficult or even impossible to 
secure support of the head of local government. We address this concern 
by providing a broader definition of the term ``head of local 
government'' in the final definitions.
    Changes: We have revised the definition of ``head of local 
government'' as follows: ``the head of, or an appropriate designee of, 
the party responsible for the civic functioning of the county, city, 
town, or municipality would be considered the head of local 
government.''
    Comment: Some commenters expressed concern that the competitive 
preference priority for partnerships is far-reaching and detracts from 
PEP's basic purpose of helping students meet State standards for 
physical education. Commenters also expressed concern about the burden 
associated with creating and maintaining the kinds of partnerships 
envisioned in the competitive preference priority, and stated that work 
on partnerships would dilute efforts to improve the quality of physical 
education programs. In some instances, commenters stated that it might 
also be difficult for community based organizations (CBOs) to establish 
such partnerships and that the inability to do so might place them at a 
competitive disadvantage.
    Discussion: We believe that collaborative efforts between school 
and community entities will greatly enhance the ability of grantees to 
provide effective and comprehensive PEP programs that help students 
live and learn lifelong healthy habits. We believe that both schools 
and CBOs can contribute to partnerships that are designed specifically 
to meet the needs of their student population. Best practices in the 
field suggest that this type of community collaboration enhances the 
project's effectiveness and possibility for being sustained past the 
period of Federal assistance. Although all applicants who choose to 
address this competitive preference priority would be required to 
engage in additional work to create and maintain partnerships, we 
believe that the important outcomes that could be gained by doing the 
work outweigh the concerns about the potential burden imposed.
    We have designed a competitive preference priority to allow CBOs to 
identify community partners that would enhance their efforts and 
connect their programs to other community initiatives. Although the 
makeup of the partner groups will differ between LEAs and CBOs, we do 
not believe that there is a significant difference between the priority 
requirements for LEAs or CBOs or that the priority places CBOs at a 
competitive disadvantage because both LEAs and CBOs are equally able to 
create and maintain the partnerships required.
    Changes: None.
    Comment: One commenter stated that partners provide significant 
help in implementing and sustaining programs and policies and suggested 
that we incorporate competitive preference priority 2 into the absolute 
priority for the program.
    Discussion: We agree that a coordinated, community-wide approach is 
likely to be the most powerful model for establishing and sustaining 
comprehensive efforts to provide physical education, nutrition 
education, and other activities and programs.
    However, we are concerned that some potential applicants for PEP 
might not be able to secure each of the required partners. We believe 
that inclusion of the competitive preference priority strikes an 
appropriate balance between encouraging the use of this approach and 
not creating a disadvantage for applicants that cannot secure each of 
the required partners.
    Changes: None.
    Comment: One commenter suggested that applicants be permitted to 
use the State public health entity rather than the local public health 
entity to satisfy the competitive preference priority concerning 
partnerships because responsibility for some issues related to PEP 
might rest with State officials.
    Discussion: The proposed definition of the term ``local public 
health entity'' included in the NPP provided an exception for 
applicants from Rhode Island and Hawaii because neither State has sub-
State public health units. While we believe that a local public health 
entity is likely to be more involved in implementing a PEP project, we 
have learned that some States that have local public health units may 
not assign responsibility for issues related to nutrition, physical 
education, or physical activity to those local units. Based on this new 
information, we have revised the definition of the term ``local public 
health entity'' to address this situation.
    Changes: We have revised the definition of the term ``local public 
health entity'' to permit applicants whose local public health entity 
does not have responsibility for issues related to physical education, 
nutrition, or physical activity to partner with the State public health 
entity instead.
    Comment: One commenter suggested that we revise the language 
concerning partner contributions in item (2) of the competitive 
preference priority by removing the word ``if''. Because partners are 
signing the partnership agreement, the commenter stated that it is 
reasonable to assume that they will be contributing to the partnership 
in some way and that those contributions should be specified in the 
agreement.
    Discussion: We agree with the commenter's suggestion and have 
revised the priority.
    Changes: We have revised item (2) in the competitive preference 
priority accordingly.
    Comment: One commenter expressed concern that the time typically 
allowed to complete the application would not be sufficient to create a 
partnership as described in the competitive priority concerning 
partnerships.
    Discussion: The Department must obligate all FY 2010 PEP funds by 
September 30, 2010 or those funds will revert to the U.S. Treasury. We 
are providing as much time as possible for applicants to develop and 
submit their applications under the FY 2010 PEP grant competition. All 
applicants will be subject to the same deadline.
    Changes: None.
    Comment: One commenter suggested that public health entities be 
allowed to function as the required partner representing an 
organization supporting nutrition or healthy eating under competitive 
preference priority 2.
    Discussion: If the only entity in the community that can provide a 
perspective on nutrition to the advisory committee is the public health 
entity, we believe it would be an acceptable partner to satisfy the 
competitive priority and, therefore, have revised the priority.
    Changes: We have revised the language in the priority and added 
public health entities to the definition of ``organizations supporting 
nutrition and healthy eating.''

Requirement 1--Align Project Goals With Identified Needs Using the 
School Health Index

    Comment: One commenter suggested that the Department promote 
implementation of Coordinated School Health Programs in conjunction 
with the use of the School Health Index (SHI) as included in this 
requirement.
    Discussion: We agree that a Coordinated School Health Program model 
provides a strong framework and context in which physical education, 
nutrition, and other important health

[[Page 34897]]

topics can be addressed by schools. Proposed requirement 4, which 
concerns linkages with Federal, State, and local initiatives, is 
designed to encourage applicants to consider how their proposed PEP 
project could be implemented in ways that maximize coordination with 
other health-related activities being implemented in schools and 
communities, including with Coordinated School Health Program 
initiatives. However, because eligible applicants for PEP include 
entities that are not schools or school districts, it would not be 
appropriate to require that all PEP projects implement a Coordinated 
School Health Program.
    We believe that requirement 1, with its focus on SHI only, is an 
appropriate assessment tool because it can be used without requiring 
the use of the Coordinated School Health Program framework for 
programming and policy development.
    Changes: None.
    Comment: One commenter suggested that the Department use the CDC's 
SHI as part of a competitive preference priority rather than as part of 
a program requirement so that applicants would be encouraged to conduct 
an assessment for each application cycle.
    Discussion: We agree that applicants should use the SHI assessment 
tool to plan their proposed PEP project. For that reason, we drafted 
this requirement to ensure that each applicant conducts the SHI 
assessment at the time of application and that funded grantees 
undertake the SHI at the end of their project period to assess their 
progress. With this structure, use of the SHI assessment is required, 
which we view as better than simply encouraging it.
    Changes: None.
    Comment: Some commenters suggested allowing applicants more 
flexibility in choosing a needs assessment tool rather than requiring 
that applicants use CDC's SHI. One commenter stated that any needs 
assessment should include a review of the legal and policy context in 
which the project would be implemented, and examine the incentives and 
enforcement mechanisms that are in place to ensure that students are 
receiving quality physical education.
    Discussion: In part, we included this requirement in the NPP to 
respond to language in the conference report accompanying the FY 2010 
appropriations statute that includes funding for PEP. In addition to 
Congressional interest in having PEP applicants complete the SHI, we 
believe that completing the questions concerning physical activity and 
nutrition required in Modules 1-4 of the SHI assessment tool will 
assist applicants in designing a project that is closely aligned with 
their needs and is consistent with best practices in the field.
    The SHI is a relatively easy and straightforward tool, designed 
specifically for a school to assess its current policies and practices 
based on evidence and best practices. Findings from the SHI are also 
tied to action plans, which should inform the project design. We do not 
believe there is another tool that is easy to use, free, publicly 
accessible, aligned with technical assistance opportunities, and 
broadly applies scientifically-based principles to program and policy 
in a national context. Moreover, by requiring LEA applicants to use a 
single assessment tool, we will be better able to understand how 
schools change over the course of their project.
    As set forth in the text of the requirement, CBO applicants that 
have not identified a school or LEA partner in their applications are 
not required to use the SHI. However, they must use an alternative 
needs assessment tool to assess the nutrition and physical activity 
environment in the community for the children to be served by the 
grant. There are no comparable tools for CBOs that embody all of the 
desirable attributes of the SHI for the community-based setting. We 
will include, in the application package, guidance to CBO applicants on 
what CBO applicants might consider if they select an alternative 
assessment tool to the SHI.
    Finally, while not required, we encourage all applicants to assess 
their policy and legal contexts if they determine it is appropriate and 
they are able to do so. We believe that the SHI will assess the policy 
context but because grantees cannot necessarily change the legal 
context in which they would implement their projects, we do not believe 
that we should require this type of assessment.
    Changes: None.
    Comment: A number of commenters offered suggestions about how CDC's 
SHI assessment should be used in the PEP program. One commenter 
recommended that the Department revise requirement 1 to make it clear 
that applicants must complete Modules 1-4 of the SHI, while another 
commenter recommended that we delete the requirement that applicants 
complete Module 1 because not all of the questions in that module 
relate to topics that are likely to be included in a PEP project. Other 
commenters recommended expanding the requirement to include Module 8 of 
the SHI (Family and Community Involvement) given the Department's 
increased focus on creating school-community partnerships, as evidenced 
by the proposed priorities, requirements, and definitions in the NPP.
    Discussion: Applicants are only required to complete the physical 
activities and nutrition questions in Modules 1-4 of the SHI assessment 
tool. Applicants are not required to complete any other questions in 
those or other SHI modules. Applicants may choose to complete other 
questions (in addition to those physical activity and nutrition 
questions required) if they believe that doing so would be helpful in 
designing their proposed PEP projects.
    Changes: None.

Requirement 2--Nutrition- and Physical Activity-Related Policies

    Comment: Two commenters expressed concern about the ability of an 
LEA or CBO to change or affect physical activity and nutrition policies 
in their respective settings. One commenter stated that it will be 
difficult for CBOs to change or affect policies because the scope of 
the policies subject to review and revision under this requirement is 
much broader than the scope of the policies that a CBO can adopt and 
implement. Another commenter discussed the challenges in writing and 
implementing specific policies in school districts, and stated that the 
focus of the requirement should be on reviewing and updating policies 
rather than developing new policies.
    Discussion: Requirement 2, which addresses the nutrition- and 
physical activity-related policies to be developed, updated, or 
enhanced by grantees during the PEP grant, does not specify particular 
policies that must be developed, reviewed, and potentially revised. 
Rather, applicants must describe their current policy framework and the 
process they plan to use to review, develop, implement, and monitor 

policies. The purpose of this requirement is to ensure that PEP 
grantees carefully consider the role of policy development and 
implementation in creating comprehensive PEP projects, and that they 
commit to making policy changes that support improvements in the areas 
of physical activity and nutrition during the project period of the PEP 
grant. Policy changes are also likely key to institutionalizing and 
sustaining progress made during a PEP project.
    We believe that examining the policy framework in which projects 
are implemented will help grantees identify needed policy changes that 
can remove impediments to, or provide incentives

[[Page 34898]]

for, enhanced physical education or improved nutrition outcomes. We do 
not expect grantees to address policies that are outside their 
authorized mission or scope.
    Changes: None.
    Comment: Several comments expressed concern about the relationship 
between proposed requirements 2 (nutrition-and physical activity-
related policies), 3 (linkage with local wellness policies), and 4 
(linkages with Federal, State, and local initiatives). One commenter 
proposed that the Department offer applicants the option of meeting 
either requirement 2 or 3 stating that both requirements entail the 
same sort of analysis and action. Another commenter suggested that we 
combine the three requirements into a single requirement because the 
foci of the three requirements are related.
    Discussion: We acknowledge that requirements 2, 3, and 4 are 
related, but we elected not to combine them because the three 
requirements may apply differently depending on the applicant's 
organization and the context in which it operates. We believe that 
stating the three requirements separately enables us to address how 
each requirement applies in different contexts. We believe that this 
approach will help ensure that applicants understand the requirements 
and will be able to respond to them appropriately in their 
applications.
    For example, requirement 3 concerns linkages with local wellness 
policies. LEAs are typically the entities responsible for developing 
and implementing local wellness polices. For this reason, the 
requirement, as applied to LEAs, is straightforward. Given that we also 
expect non-LEA applicants to apply for PEP grants, we have included 
information in this requirement to address those applicants as well. 
Under this requirement, CBOs whose PEP applications include a 
partnership with LEAs must describe in their applications how the 
project will enhance or support the intent of the local wellness 
policies of participating LEAs, while CBOs not in partnerships with 
LEAs do not have to satisfy this requirement.
    Although we believe that the best approach to describing these 
three program requirements is to present them separately, applicants 
are encouraged to provide in their applications a comprehensive 
discussion of their policy framework and of linkages with other 
existing initiatives. Applicants need not repeat information that 
responds to more than one of the requirements.
    Changes: None.

Requirement 3--Linkage With Local Wellness Policies

    Comment: Some commenters raised concerns that proposed requirement 
3, which concerns the linkage with local wellness policies, will be 
challenging for CBOs to meet and that time spent by staff in managing 
activities related to the requirement would reduce an organization's 
ability to provide direct services to students.
    Discussion: As stated in this requirement, if an applicant or one 
its partners does not participate in the school programs authorized by 
the Richard B. Russell National School Lunch Act and the Child 
Nutrition and WIC Reauthorization Act of 2004, it might not have a 
local wellness policy and, therefore, might not be required to meet 
this requirement or to adopt a local wellness policy. However, we 
encourage all applicants to consider developing a local wellness policy 
consistent with the policies required by the Richard B. Russell 
National School Lunch Act and the Child Nutrition and WIC 
Reauthorization Act of 2004 in conjunction with their PEP projects. If 
a CBO applicant has an LEA partner, it would be required to address 
that LEA's local wellness policy.
    Changes: None.
    Comment: One commenter suggested that the Department revise this 
requirement concerning linkages to local wellness policies to 
accommodate any changes that might result from reauthorization of the 
Child Nutrition Act.
    Discussion: In future years before using the priorities, 
requirements, and definitions established in this NFP, we will 
carefully review program requirements to determine if legislative 
action or other changes require the Department to modify the 
priorities, requirements, or definitions in this NFP under this 
requirement.
    Changes: None.

Requirement 4--Linkages With Federal, State, and Local Initiatives

    Comment: Two commenters suggested that we include a reference to 
the Recovery Act Community Putting Prevention to Work Community 
Initiative (CPPW) grantees in the application package.
    Discussion: We agree that adding such a reference could be helpful 
to applicants. The link to the CPPW Web page (http://www.cdc.gov/
chronicdisease/recovery/community.htm), which includes a list of grant 
recipients and additional information on the initiative, will be 
provided in the application package. We believe that this program, 
which includes in its goals a focus on improving physical activity and 
nutrition habits of residents, has the potential to complement efforts 
undertaken as part of the PEP program.
    Changes: None.
    Comment: One commenter expressed concern that having programs align 
with Coordinated School Health programs or CPPW grants, as required 
under Requirement 4, would place a significant burden on applicants.
    Discussion: We believe that applicants and PEP-funded projects must 
complement, rather than duplicate, existing, ongoing, or new efforts 
that promote physical activity and healthy eating, and help students 
meet their State standards for physical education. CDC's Coordinated 
School Health Program, USDA's Team Nutrition initiative, and HHS's CPPW 
grantees are working on projects directly related to one or more 
elements of PEP. Coordinating with these programs and initiatives will 
allow PEP grantees to maximize their resources, reduce duplication, 
provide more effective programming for their students, and increase 
chances for a PEP project's sustainability.
    Changes: None.
    Comment: Two commenters requested that we add State associations 
for health, physical education, recreation, and dance to the list of 
linkages to Federal, State, and local initiatives that could be made by 
PEP grantees.
    Discussion: This requirement specifically requires applicants that 
are implementing CDC's Coordinated School Health Program, USDA's Team 
Nutrition Initiative, or CPPW, to align its proposed PEP project 
activities with these initiatives. Applicants that are implementing 
other Federal, State, or local initiatives are required to sign a 
Program-Specific Assurance that commits them to align their project 
with such initiatives.
    Changes: None.
    Comment: One commenter suggested that we add language to proposed 
requirement 4 that would mandate that USDA's Team Nutrition 
coordinators be involved in planning and implementing the PEP project 
and that their involvement be verified by a signed assurance or other 
documentation.
    Discussion: We believe that it is important for PEP projects to 
complement rather than duplicate existing or new efforts to promote 
physical activity and healthy eating behaviors. For this reason, 
requirement 4 requires applicants that receive funding under the USDA's 
Team Nutrition initiative to describe how

[[Page 34899]]

their proposed PEP project supports the efforts of the USDA's Team 
Nutrition initiative.
    Although we agree that it is important for PEP-funded activities to 
be coordinated with other related activities such as those supported by 
Team Nutrition, we believe that the proposed requirement is sufficient 
to address this issue without imposing an additional requirement for a 
signed assurance from the Team Nutrition coordinator.
    Changes: None.

Requirement 5--Updates to Physical Education and Nutrition Instruction 
Curricula

    Comment: One commenter expressed concern that the proposed 
requirement related to updating physical education and nutrition 
instruction curricula is not aligned with the absolute priority. The 
commenter stated that completion of the PECAT and analysis of PECAT 
results should guide applicants in choosing which of the absolute 
priority elements related to physical education they should include in 
their proposed PEP project.
    Discussion: We believe that each of the proposed requirements in 
the NPP (and adopted in this NFP) is closely linked to the components 
of the absolute priority in this notice and that each requirement 
supports the adoption of high-quality, evidence-based programming and 
curricula. As part of a general planning framework for a PEP grant, 
results from the PECAT and HECAT should be used as part of the needs 
assessment process that each applicant will undertake to be optimally 
responsive to the absolute priority or as part of a grantee's analysis 
of available curricula during the project period. Undertaking the SHI 
or another needs assessment leads an applicant to select elements of 
the absolute priority to be included in their proposed project. If one 
of the needs identified is a curricular need, the PECAT and HECAT are 
intended to guide applicants or grantees to identify a curriculum that 
fills that identified need. These tools, therefore, should help 
applicants or grantees to be responsive to the absolute priority and 
function as tools to help meet the absolute priority. The PECAT and 
HECAT can be done as part of the application process or after the grant 
is awarded, as appropriate.
    Changes: None.
    Comment: Several commenters expressed concern about requiring the 
use of the HECAT and PECAT tools. Two commenters stated that use of 
these tools limits local flexibility and does not allow for alignment 
with State standards. Others contended that these tools have limited 
ability to assess cognitive components of physical education or that 
the tools are limited to secondary level curricula. Finally, one 
commenter expressed concerns that these tools do not assess 
implementation of curricula.
    Discussion: We believe that the PECAT and HECAT tools provide a 
low-cost and rapid way to assess existing curricula and identify needed 
enhancements in those curricula. These tools are designed to provide a 
complete, consistent, and objective assessment of a site's needs and 
resources and to provide feedback on curricula to best meet the 
identified needs. According to CDC, the PECAT and HECAT are appropriate 
for all grade levels and relate to national physical education and 
health education standards. Our goal in requiring the use of these 
tools is to help grantees make the best choices for curricula and, in 
turn, equipment, before funds are spent unnecessarily on items that do 
not meet the needs of the site. However, this requirement does not 
prohibit applicants or grantees from also using additional analysis or 
needs assessment tools if they so choose.
    We agree that the PECAT and HECAT are not designed to assess 
implementation of the curriculum or cognitive components of PE. For 
this reason, applicants must undertake the SHI or another comparable 
needs assessment tool to assess needs, which may include implementation 
issues. In addition, grantees must undertake the SHI at the end of 
their project period to assess their progress. The PECAT and HECAT 
complement the SHI in that the PECAT and HECAT address written 
curricula and the SHI addresses the implementation of those curricula. 
The SHI is a self-assessment and planning tool that schools use to 
assess their student health policies and programs and their school 
health environments. We also note that, in addition to requiring the 
use of these assessment and planning tools, we also are establishing 
performance measures for this program that are designed to help assess 
the effectiveness of the chosen program, including curricula, on 
changing student outcomes.
    Changes: None.
    Comment: One commenter expressed concern about tying PEP-related 
equipment purchases to the curricular components of the applicant's 
physical education and nutrition program. The commenter stated that 
there would not be sufficient opportunity during the grant to create an 
action plan related to a newly developed or adopted curriculum to help 
students meet their State standards for physical education.
    Discussion: The intent of this requirement is to ensure that 
grantees align equipment purchases using PEP-related funds to the PEP 
elements and curricula applicable to their PEP projects, as identified 
by the PECAT and HECAT. Grantees must tie equipment purchases to any 
curricula that will be implemented as part of a PEP project. Without 
this alignment, equipment purchased with PEP funds would not support 
the effective implementation of physical education or health curricula. 
For this reason, applicants must undertake the PECAT--either as part of 
the application process or during the grant's project period--to assess 
their needs and plan related equipment purchases accordingly. We do not 
intend to prohibit a grantee from changing its plans for equipment 
purchases during the project period so long as the grantee aligns the 
equipment purchases with the PEP elements applicable to their projects 
(identified in priority 1) and any applicable curricula, within the 
scope of the funded project.
    Changes: None.

Requirement 6--Equipment Purchases

    Comment: One commenter suggested that it would be appropriate for 
applicants to consider both the schools' and the community's physical 
activity needs when selecting equipment for purchase so that equipment 
purchased for schools could be used by community members under a 
shared-use agreement.
    Discussion: Grantees under this program may only purchase equipment 
with PEP-related funds (either Federal funds or funds used to satisfy 
the program's matching requirement) if the purchase is aligned with the 
curricular components of the physical education and nutrition program. 
We expect that applicants will describe in their application what 
equipment they expect to purchase with PEP funds, and how the equipment 
would address their curricular needs, including gaps and weaknesses in 
their current programming for the students served by the grant, and the 
specific curricular needs of the students to be served by the grant. 
However, it is important to note that during the project period, the 
equipment may be used only by students served by the grant in grades K-
12. Therefore, community members may not use the equipment during the 
project period.
    Changes: None.
    Comment: None.
    Discussion: Upon further review, we determined that it was 
appropriate to clarify the first sentence in requirement

[[Page 34900]]

6. Specifically, we did not think the phrase ``purchases of equipment 
with PEP funds and related to grant activities'' was sufficiently clear 
for applicants.
    Changes: We revised the first sentence of requirement 6 to state 
that purchases of equipment with PEP funds or with funds used to meet 
the program's matching requirement must be aligned with the curricular 
components of the proposed physical education and nutrition program.

Requirement 7--Increasing Transparency and Accountability

    Comment: One commenter suggested that we require reports generated 
by a particular commercial fitness product to be sent home to parents 
so that this additional information can be used by parents and 
pediatricians to monitor growth and development.
    Discussion: The Department does not endorse specific commercial 
products. There are many mechanisms and reports that can provide 
information to parents and, if they so choose, parents may share this 
information with their child's pediatricians. We encourage applicants 
to consider plans to share student-level information with parents.
    Changes: None.
    Comment: One commenter requested clarification on whether reporting 
mechanisms required for grantees to increase transparency and 
accountability include making available to the public reports of 
students' progress towards meeting State physical education standards.
    Discussion: The new PEP design seeks to increase accountability and 
transparency by requiring grantees to report aggregate student data to 
the public on program indicators required under GPRA, as published in 
the performance measurement section of the notice inviting applications 
(NIA), published elsewhere in this issue of the Federal Register, and 
any unique project-level measures proposed in their applications. 
Grantees may elect to establish measures specific to their project, 
which may include student's progress towards meeting State standards 
for physical education. Because of the diversity not only in grantee 
sites, but also the quality of State physical education standards, it 
is not practical for us to require grantees to report on this issue as 
a performance measure for PEP. We have chosen performance measures that 
best balance the potential data collection burden, which we believe is 
low, with the value of providing grantees with practical and actionable 
student-level data and obtaining comparable data that can be aggregated 
across program sites, which we believe is high.
    Changes: None.
    Comment: None.
    Discussion: Upon further review of this requirement, we determined 
that the language in the final paragraph regarding the Program-Specific 
Assurance might be confusing. Specifically, we determined that the 
phrase ``including parents of students under 18 years old'' was not 
necessary, might cause readers to be confused as to what was required, 
and did not meaningfully add to the intent of the requirement.
    Changes: We revised the first sentence in the last paragraph of 
requirement 7 to clarify that applicants must commit to reporting 
information to the public by signing a Program-Specific Assurance, and 
deleting the phrase ``including parents of students under 18 years 
old.''

Requirement 8--Participation in a National Evaluation

    Comment: One commenter expressed concern about how much time would 
be needed to collect data related to the national evaluation and PEP's 
performance measures.
    Discussion: Although we understand that the required performance 
measures and data collection methodology may be challenging for some 
grantees, they are similar to the measures and data collection 
methodology that many grantees currently collect and implement. 
Grantees are, and have always been, allowed to hire staff to assist in 
the collection and analysis of their site-specific data related to 
performance measurement. For the national evaluation, the Department 
will work directly with a contractor, who will use existing data, to 
the extent possible and minimize the data collection burden on 
grantees.
    Changes: None.
    Comment: One commenter requested information about the national 
evaluation of the PEP program.
    Discussion: The scope of the national evaluation is still being 
considered. If a grantee is selected to participate in the national 
evaluation, more specific information about the study will be shared 
prior to the initiation of the evaluation. We expect that the 
evaluation will broadly examine the performance measures, which focus 
on increases in the percentage of students meeting the recommended 
levels of physical activity (at least 60 minutes every day), and 
improvements in student fitness levels and nutritional intake. These 
measures will likely be examined at the PEP program level to illustrate 
the range of projects implemented and outcomes achieved by grantees 
funded under this program.
    Changes: None.

Requirement 9--Required Performance Measures and Data Collection 
Methodology

Additional or Alternative Measures

    Comment: One commenter suggested requiring applicants to gather 
data on the four CDC physical activity recommendations in addition to 
the GPRA measures already listed in requirement 9. These CDC measures 
include assessments of the type and intensity of physical activity in 
which students engage, such as whether or not a student has engaged in 
moderate to vigorous physical activity, bone strengthening and muscle 
strengthening for at least three days; as well as the student's 
consumption of sugar-sweetened beverages; hours of sleep; and ``screen 
time.''
    Discussion: Although we agree that these CDC measures can be useful 
for understanding a student's nutrition and physical activity habits, 
we have found that grantees are best able to focus fully on a smaller 
set of measures that most closely align with the desired goals and 
objectives of their program. We expect that the three performance 
measures that we have selected will serve as a proxy for the full range 
of these CDC measures, as well as for longer-term outcomes, and will 
provide the Department with the most useful assessment of whether a 
program is making substantial progress from year to year. With that 
said, we encourage grantees to adopt these CDC measures or other site-
specific measures to assess their performance during their project 
period.
    Changes: None.
    Comment: Several commenters suggested expanding the required 
performance measures to include components, such as a standard metric 
that would assess the number of physical activity minutes offered to 
students during a school year, by school and by program, as well as the 
actual number of minutes that a student is engaged in physical 
activity, which would be assessed by using direct observation or 
pedometry. Another commenter suggested assessing the program's 
effectiveness in improving children's ability to pursue different 
physical activities, and the extent to which students embrace a healthy 
lifestyle. Still another commenter recommended that we require grantees 
to collect and report data on performance measures that are aligned 
with the six PEP program elements

[[Page 34901]]

outlined in the absolute priority and State standards for physical 
education.
    Discussion: Under requirement 7 (Increasing Transparency and 
Accountability), applicants may propose a variety of unique project-
level performance measures for their individual programs that would 
best help them understand their program's progress towards their unique 
goals and objectives and assess their students' performance. However, 
we are requiring three performance measures that are aligned with the 
desired program outcomes. Although we agree that one metric would be 
optimal for cross-site comparability, PEP grantees represent a diverse 
array of programs that would make a single specific metric difficult, 
if not impossible, to implement. For example, some programs operate 
only after school or in the summer, and others are school-based 
physical education programs. Because of this diverse array of programs, 
many grantees will not have the ability to increase the minutes of 
physical activity offered to students. Also, grantees are not required 
to undertake all six of the PEP program elements, and, as such, we 
cannot hold all grantees accountable for elements that they will not 
address as part of their funded project.
    We are also interested in measuring changes in students' physical 
activity habits throughout the day and in multiple settings, not just 
in the activities funded under the PEP program. We believe that 
measuring changes to students' overall activity level will not only 
measure improvements in programming, but also changes in students' 
behavior. As such, we prefer to assess student-level outcomes, such as 
the minutes spent in physical activity, fitness levels, and 
improvements in nutritional intake. These outcome measures are also the 
logical outcomes of the adoption of healthier lifestyles, as we hope 
that there will be increases in the percentage of students who practice 
healthy habits. We also believe these outcomes will serve as a proxy 
for a teacher's effectiveness in imparting lessons that students 
understand and, in turn, apply to their daily lives, and are reflected 
in healthier activity and nutritional choices.
    Changes: None.
    Comment: Due to a concern about program quality and the need to 
ensure that programs are comprehensive and not just focused on 
equipment purchases for physical activity, one commenter suggested that 
grantees be required to demonstrate their progress during the period of 
the grant using at least one indicator of change, such as the 
development of a school- or district-level curriculum, or changes as 
assessed by the PECAT and HECAT, or SHI.
    Discussion: We agree with the commenter that projects should be 
comprehensive in nature, improve physical education, and enhance 
physical activity opportunities for youth, as well as help students 
develop lifelong healthy habits, rather than just support equipment 
purchases. All grantees will be required to use the PECAT if they are 
developing or purchasing a new curriculum for physical education or the 
HECAT if they are developing or adopting a new curriculum for nutrition 
education. All applicants will also be required to undertake the SHI or 
a comparable local needs assessment, submit their scores as part of 
their application, and create a program designed to address their 
greatest needs in programming and policy. Although the SHI is designed 
to help schools assess their policy and practice environments, it is 
not designed as an evaluation tool and may not be used for this 
purpose. Grantees will be required to undertake the SHI at the end of 
their project to determine if they have made the changes that they had 
desired (and to assess any unplanned consequences). The SHI should be 
used only as a program management tool--not to assess accountability--
because a grantee's progress, as measured by the SHI, may or may not 
reflect the results of the grantee's project. Similarly, the PECAT and 
HECAT are tools designed to help schools and CBOs assess curricula and 
choose improvement areas based on their needs, rather than as tools to 
evaluate a project's progress. Not all grantees will need to develop or 
adopt new curricula; for example, some grantees may have recently 
adopted a new curriculum while others may be part of a larger 
organization that has control over the curriculum used.
    We encourage grantees to track their progress towards implementing 
changes identified through these tools, or the adoption of any 
curriculum; grantees are welcome to include these process measures as 
part of their own performance goals and objectives. We believe that the 
required performance measures will appropriately assess the desired 
student-level outcomes related to changing curriculum, practice, and 
policy.
    Changes: None.
    Comment: Two commenters suggested that the Department add two new 
measures to this requirement. These new measures would assess students' 
progress towards meeting State standards on competency and proficiency 
in motor skills and movement forms and physical activity-related 
knowledge, as measured by the National Association of Sport and 
Physical Education's (NASPE) assessment tools. The commenter noted that 
NASPE's elementary school assessment tools are currently complete and 
tools for secondary schools will be complete in fall, 2010.
    Discussion: We agree that it is important to assess students' 
progress towards meeting State standards on competency and proficiency 
in motor skills and movement forms and physical activity-related 
knowledge. Grantees may adopt metrics that assess students' competency 
and proficiency in motor skills and movement forms and students' 
physical activity related knowledge, but we do not believe it is 
appropriate to require them to do so. We continue to believe that the 
measures proposed in requirement 9 will appropriately assess the 
student-level outcomes that we seek to change through PEP, as they are 
designed to measure changes in student's knowledge, skills, and 
abilities related to physical activity and movement, as well as changes 
in their adoption of lifelong healthy habits.
    Changes: None.
    Comment: One commenter expressed concern about the validity of the 
3-day physical activity recall (3DPAR) for middle school students 
required in measure 1, and proposed piloting a 1-day measure with a 
small group of grantees to determine feasibility, reliability, and 
validity.
    Discussion: The 3DPAR is a validated self-report instrument 
designed to capture habitual physical activity of adolescents. The 
instrument can be completed during a single 30 minute session, making 
it ideal for school-based data collection. Particularly when combined 
with pedometer data, the 3DPAR provides a reasonably good estimate of 
the type and intensity of students' physical activity. It is important 
to gather three days of physical activity data through self-report to 
help identify not only the amount, but also the type, of physical 
activity. The 3DPAR is not meant to be used on three separate 
occasions; rather, students are asked to report their physical activity 
one time and to report about their physical activity from the past 
three days. The use of the 3DPAR in combination with the pedometer is 
designed to capture small changes in behavior because the pedometer 
measures activity continuously and we can determine time and intensity 
through pedometers.

[[Page 34902]]

    We require that students in grades 5-12 complete the 3DPAR because 
it has been used successfully with middle school and high school 
students. Several recent studies have used the 3DPAR with this 
population, combined with an objective measure of physical activity 
such as data gathered via pedometer use.2 3
---------------------------------------------------------------------------

    \2\ Ward DS, Dowda M, Trost SG, Felton GM, Dishman RK, and Pate 
RR. Physical activity correlates in adolescent girls who differ by 
weight status. Obesity. Jan 2006;14(1):97-105
    \3\ Dowda M, Pate RR, Felton GM, Saunders R,et al. Physical 
activities and sedentary pursuits in African American and Caucasian 
girls. Res Q Exerc Sport. Dec 2004;75(4):352-360.
---------------------------------------------------------------------------

    With grantees using a uniform data collection and assessment 
methodology, we will be able to aggregate data to provide information 
that informs our national evaluation.
    Changes: None.
    Comment: One commenter stated that the 3DPAR methodology is too 
cumbersome to implement and recommended that the Department require the 
use of a pen and paper or computer-based seven-day recall survey 
instrument based on the Youth Risk Behavior Surveillance System (YRBSS) 
survey.
    Discussion: Although a seven-day physical activity recall 
instrument is an option for grantees, we believe that the resources 
involved in implementing and completing a seven-day survey outweigh the 
relative benefits. Additionally, a seven-day recall instrument would 
not be appropriate for younger children, who have a harder time 
recalling the seven prior days. The YRBSS survey instrument has 
historically been used with high-school students and, although some 
States collect YRBS data from middle school students, we are uncertain 
about the validity and reliability of YRBS data collected at grade 
levels lower than middle school.
    We recognize that some applicants and grantees will not have 
experience in implementing the 3DPAR. We intend to provide grantees 
with technical assistance to ensure relatively uniform data collection 
and to help students and staff understand what type of physical 
activity to include in the data collection.
    Changes: None.
    Comment: Several commenters expressed concern about the validity of 
the pedometer data required to be collected under measure 1. The first 
concern was about accurately reporting data because the data would be 
self-reported and could be reported inaccurately either inadvertently 
or deliberately by the teacher or the student. The second concern 
focused on the collection of pedometer data, which the commenter stated 
could be inflated by, for example, the student shaking the pedometer.
    Discussion: The use of pedometers to assess students' physical 
activity during the day is well-validated and recommended by many 
physical activity researchers. Multiple studies conducted over the last 
decade have examined noncompliance, and the overwhelming finding is 
that the use of pedometers does not present data collection or 
aggregation challenges that compromise the validity and reliability of 
student-level self-reported data. A nationally-representative study of 
over 11,000 Canadian students used pedometers as its data collection 
methodology and did not find data collection methodology challenges 
with pedometers. This population-based study and other studies relied 
on self-report data and found this method to be acceptable and to 
produce valid and reliable data.
    We will provide technical assistance to grantees to help them 
introduce pedometers during physical education lessons, including 
explaining how pedometers work, allowing students to explore moving 
with pedometers, teaching students how pedometers should be worn and 
taken care of, and how to record the data from the pedometers. Physical 
education teachers' prompts and reminders to students about wearing the 
pedometers during the data collection period are also important in 
helping students accurately collect their activity data.
    Although self-reported data may be a challenge because of the 
potential for students to report socially desirable responses, self-
report is still the most widely used method for assessing physical 
activity among all age groups. Combining the use of pedometers with a 
3DPAR provides researchers, physical education teachers, and program 
coordinators with a good idea of young people's physical activity 
levels from a subjective (self-report 3DPAR) and objective (pedometer) 
method. This combination of strategies provides information regarding 
how much activity (through both pedometers and 3DPAR), as well as what 
types of activity (3DPAR) students are engaged in.
    Changes: None.
    Comment: Two commenters suggested that we allow grantees to collect 
data from a sample of students rather than collect pedometer data from 
all participants.
    Discussion: Depending on the size of the project and the number of 
students served, grantees may use a sampling methodology and framework 
instead of assessing their whole target population. We have developed a 
sampling methodology that will be shared with grantees and, if the 
grantee decides to use sampling, we will provide technical assistance 
in setting up the sample and ensuring that the methodology is 
implemented correctly.
    Changes: None.
    Comment: A few commenters expressed concern that pedometers are not 
able to appropriately and adequately reflect physical activity for 
specific populations, such as young children, or specific activities, 
such as riding a recumbent bike, and requested information on 
``approved'' pedometers to be used in these instances.
    Discussion: Pedometers have been shown to be a cost-effective, 
noninvasive, valid, and reliable method of collecting information on 
students' activity levels while engaging in a variety of activities. 
Research shows that pedometers are reliable and valid for use with 
children, even children as young as kindergarten age and for 
adolescents because they measure the physical activity of youth in 
steps accurately on a consistent basis. Researchers in Canada 
implemented a nationwide study using pedometers with 5-19-year-olds, 
and were able to obtain reliable data from this age group.\4\
---------------------------------------------------------------------------

    \4\ Craig, C.L., Cameron, C., Griffiths, J.M. and C. Tudor-
Locke. Descriptive epidemiology of youth pedometer-determined 
physical activity: CANPLAY. Medicine & Science in Sports & Exercise. 
2010; in press.
---------------------------------------------------------------------------

    Additionally, for all ages, it is possible to use pedometers to 
determine moderate to vigorous physical activity. For example, one 
study showed that approximately 120 steps per minute equates to 
moderate activity.5 6 Another study showed that the number 
of steps taken per day was a significant predictor of activity time.\7\
---------------------------------------------------------------------------

    \5\ ``Moderate physical activity'' is defined as a level of 
exercise that makes one sweat and breathe hard. During moderate 
activity, one can talk but not sing, and includes activities such as 
walking briskly, ballroom dancing, doubles tennis, or gardening. 
``Vigorous physical activity,'' is defined as a level of activity 
during which one can only talk with a pause between words, and 
includes activities such as singles tennis, jumping rope, or speed 
walking, jogging, or running.
    \6\ Graser, S.V., R.P. Pangrazi, and W.J. Vincent. Steps it up: 
Activity intensity using pedometers. Journal of Physical Education, 
Recreation, and Dance. 2009; 80(1): 22-24.
    \7\ Beighle and Pangrazi. Measuring Children's Activity Levels: 
The Association between Step-Counts and Activity Time. Journal of 
Physical Activity and Health. 2006; 1: 221-229.
---------------------------------------------------------------------------

    There are many different kinds of pedometers made by a variety of 
manufacturers and, to the extent practicable, we will provide guidance 
in the application package on

[[Page 34903]]

specifications that may enhance the validity and reliability of 
pedometers for this population and provide an accurate overall 
depiction of physical activity across a student's 
day.8 9 10 11 12 13 14
---------------------------------------------------------------------------

    \8\ Eston, RG, Rowlands, AV, Ingledew, DK. Validity of heart 
rate, pedometry, and accelerometry for predicting the energy cost of 
children's activities. J Appl Physiol. 1998;84(1):362-371.
    \9\ Kilanowski, CK, Consalvi, AR, Epstein, LH. Validation of an 
electronic pedometer for measurement of physical activity in 
children. Pediatr Exerc Sci. 1999;11:63-68.
    \10\ Louie, L., Eston, R.G., Rowlands, A.V., Tong, K.K., 
Ingledew, D.K., & Fu, F.H. (1999). Validity of heart rate, 
pedometry, and accelerometry for estimating the energy cost of 
activity in Hong Kong Chinese boys. Pediatr Exerc Sci. 11, 229-239.
    \11\ Rowlands, AV, Eston, RG, Ingledew, DK. Measurement of 
physical activity in children with particular reference to the use 
of heart rate and pedometry. Sports Med. 1997;24(4):258-272.
    \12\ Beets, M, Patton, MM, Edwards, S. The accuracy of pedometer 
steps and time during walking in children. Med Sci Sport Exer. 
2005;37(3):513-520.
    \13\ Schneider, PL, Crouter, SE, Lukajic, O, Bassett, DR. 
Accuracy and reliability of 10 pedometers for measuring steps over 
400-m walk. Med Sci Sport Exer. 2003;35:1779-1784.
    \14\ Basset, DR, et al. Accuracy of five electronic pedometers 
for measuring distance walked. Med Sci Sport Exer. 1996, 28(8) 1071-
1077.
---------------------------------------------------------------------------

    Changes: None.
    Comment: Some commenters expressed concern about the burden 
associated with collecting, reporting, and analyzing pedometer data; 
commenters stated that additional staff would be needed to facilitate 
the collection of these data. Two commenters suggested that some of the 
proposed GPRA measures for the program would be better collected by the 
national evaluator to mitigate burden to the local grant sites.
    Discussion: Under PEP, applicants may propose to hire staff, 
including a project manager, program coordinator, or evaluator to 
support, within reason, activities commensurate with the scope of work 
and activities of the program. This would include efforts related to 
data collection and analysis. PEP does not allow applicants to propose 
a staffing plan that would supplant existing staffing requirements, but 
the program does allow for funding to supplement the existing program 
to carry out the tasks delineated in the project or evaluation design. 
We believe that these data are best collected by the grantee because 
they are able to structure their data collection appropriate to their 
particular site.
    Changes: None.
    Comment: We received some comments regarding the potential 
complexity of collecting pedometer data during out-of-school hours as 
well as the related burden on parents, students, and grantees that lack 
an appropriate project management structure.
    Discussion: We acknowledge that the responsibility of collecting 
pedometer data during out-of-school hours will result in some 
additional burden on students and their families. We carefully 
considered issues of burden in developing the requirements for the 
program, and believe that the value of obtaining comprehensive 
information about changes in levels of student physical activity served 
by PEP grants outweighs the relatively limited burden on students and 
families.
    Moreover, grantees can implement strategies to limit this burden 
for parents and students. For example, grantees could provide 
orientation sessions to both students and parents to introduce 
pedometer use to them and provide instruction on using the pedometer, 
how a pedometer should be worn and taken care of, as well as on how 
students should record the data from the pedometers. We will provide 
additional technical assistance to grantees on these and other 
strategies to enhance the validity and reliability of the data 
collected.
    Finally, under PEP, grantees may propose to hire a project manager 
or program coordinator, as well as evaluation support, within reason 
and commensurate with their project's scope of work. PEP does not allow 
grantees to supplant existing staff requirements, but will allow 
funding to supplement an existing program to carry out new tasks 
delineated in the project, including the project evaluation.
    Changes: None.
    Comment: We received several comments concerning the durability of 
pedometers. These commenters expressed concern that requiring the use 
of pedometers would result in grantees wasting funds by purchasing 
replacement pedometers when they are lost, stolen, or broken.
    Discussion: Like other types of equipment, pedometers can be lost, 
stolen, or broken. However, there are straps that are available to 
connect the pedometer to a belt loop or waistband to minimize loss. 
Student training in correct pedometer use and care before data 
collection begins may also help to minimize breakage. As an objective 
measure of physical activity, the pedometer is one of the most 
moderately priced options and one that requires minimal training to 
use. Pedometer use is also much less time and labor intensive than 
other objective measures of physical activity.
    Changes: None.
    Comment: We received several comments recommending that other tools 
be used instead of, or in addition to, pedometers to measure activity 
levels. Suggestions included using downloadable heart rate monitors, 
accelerometers, or a type of watch to appropriately measure physical 
activity levels. These commenters stated that such tools would be more 
accurate and effective than pedometers for recording and evaluating 
information about physical activity.
    Discussion: Applicants are welcome to propose using other 
measurement tools in addition to pedometers. We have elected to use 
pedometers to measure physical activity under performance measure 1 
because they are an accurate, feasible, and unobtrusive measure of 
physical activity, particularly in physical education. They can be put 
on quickly, and measure many types of activity, including walking, 
jogging, running, tennis, dancing, aerobics, and roller skating. 
Pedometers record physical activity of all intensities, and provide 
immediate concrete feedback to students. Some pedometers also measure 
the number of steps and activity time; this then allows the calculation 
of steps per minute, which can then be associated with intensity.\15\
---------------------------------------------------------------------------

    \15\ Graser, S.V., R.P. Pangrazi, and W.J. Vincent, Step it up: 
Activity intensity using pedometers. Journal of Physical Education, 
Recreation, and Dance, 2009. 80(1): 22-24.
---------------------------------------------------------------------------

    Research also shows that pedometers can be used in large 
population-based assessments of physical activity, which implies that 
they are practical in a range of settings with different populations. 
Pedometers also tend to be more affordable and require little or no 
additional investments in complementary pieces of technology such as 
computers or handheld devices to upload the data.
    Changes: None.
    Comment: Several commenters shared a concern about the use of the 
20-meter shuttle run as a performance measure. Specifically, some 
commenters expressed concern that grantees would be required to 
purchase a particular commercial fitness-assessment package to meet the 
requirement. Other commenters sought clarification about whether we 
intend for the 20-meter shuttle run to be implemented as a criterion- 
or norm-referenced test.
    Discussion: The 20-meter shuttle run is a test that has been widely 
used in schools across the U.S. as part of physical education classes. 
It is not necessary for grantees to purchase a commercial package to 
collect and report data on this performance measure. The shuttle run 
provides a measure of students' cardio-respiratory fitness, due to its 
predictive validity and

[[Page 34904]]

correlation with maximal oxygen uptake, which indicates one's 
cardiovascular or aerobic capacity. The test measures aerobic capacity 
by having the student run back and forth over 20-meters at increasing 
rates of speed over specific periods of time.
    We intend for grantees to implement the 20-meter shuttle run as a 
criterion-referenced test, rather than as a norm-referenced test, such 
as the 20-meter shuttle run test that is used as part of the 
President's Fitness Challenge. While grantees are not required to 
purchase any commercial package to meet this requirement, grantees may 
choose to use the 20-meter shuttle run test from a commercial package 
to satisfy the 20-meter shuttle run test requirement.
    Changes: None.
    Comment: Two commenters recommended that the Department permit, 
rather than require, grantees to use the 20-meter shuttle run for 
purposes of performance measure 2. One commenter recommended that the 
Department allow grantees to use the 1-mile walk/run as an alternative 
assessment to the 20-meter shuttle run.
    Discussion: Research demonstrates that the 20-meter shuttle run is 
a better measure of cardio-respiratory fitness than the 1 mile walk/
run.
    Changes: None.
    Comment: One commenter expressed concern as to the size and safety 
of some school's facilities for conducting the 20-meter shuttle run 
assessment.
    Discussion: We recognize that many LEAs and CBOs face challenges in 
maintaining adequate facilities to implement physical education 
activities, but the space requirements necessary to implement the 20-
meter shuttle run in a safe manner are minimal (e.g., a volleyball 
court is approximately 20 meters in length). If the area is not wide 
enough for all students to complete the run simultaneously, the test 
can be completed in shifts, with half the class running at a time. This 
is not ideal, but it is an acceptable alternative if space is limited. 
Also, the shuttle run can be conducted outdoors if needed.
    Changes: None.
    Comment: One commenter suggested adding descriptive and clarifying 
language related to the second GPRA measure, including describing the 
shuttle run as a criterion-referenced health-related fitness testing 
protocol and identifying the measure as an assessment of student 
health-related fitness levels.
    Discussion: We agree with the commenter. The 20-meter shuttle run 
is a criterion-referenced health-related fitness testing protocol used 
to assess student health-related fitness levels. Therefore, we have 
changed the language in the requirement accordingly.
    Changes: We have changed the language in the requirement to refer 
to the criterion-referenced health-related fitness testing protocol 
when describing the shuttle run and referring to the GPRA measure as an 
assessment of student health-related fitness levels.

Consumption of Fruits and Vegetables

    Comment: Some commenters objected to the proposed performance 
measure concerning daily consumption of fruits and vegetables, based on 
their opposition to the requirement contained in the absolute priority 
that nutrition education be required as part of each PEP-funded 
program. One commenter stated that fruit and vegetable consumption is 
not an outcome of effective physical education.
    Discussion: After a careful review of comments received about the 
proposed absolute priority, we have elected to retain the requirement 
that projects include a component addressing healthy eating habits and 
good nutrition because we believe that a PEP project that incorporates 
both high-quality physical education and nutrition instruction 
strategies offers the best opportunity for students to acquire the 
information and skills necessary to help them understand the 
complementary relationship between physical education and nutrition, 
and the role that both can play in improving their health. We believe 
that the measure related to daily consumption of fruits and vegetables 
is an important measure that will provide data about project 
effectiveness.
    Changes: None.
    Comment: Several commenters recommended methods for collecting 
information on elementary and middle school students' nutritional 
intake. Suggestions included using a new nutrition survey, adapting 
nutrition-related questions from the YRBS, and administering a seven-
day nutrition recall assessment, the Healthy Eating Index, or the 
USDA's MyPyramid nutrition tools. Two commenters suggested that the 
performance measures be revised to give grantees flexibility to select, 
depending on their local needs, the method to collect this information 
(such as through the use of site-, region-, or State-specific 
instruments).
    Discussion: We appreciate the variety of recommendations provided 
by these commenters and carefully considered all the different tools 
suggested. We are not aware of any available tools that are free and 
publicly accessible, that would provide valid and reliable data for 
elementary and middle school students, and that are not associated with 
commercial products or curriculum, which the Department is prohibited 
from endorsing. Because we are unable to identify an appropriate data 
collection tool, we are not requiring a specific measurement tool for 
programs serving students in elementary or middle school. Instead, we 
will provide guidance to applicants on factors they should consider in 
selecting an appropriate assessment tool to collect data on the 
percentage of elementary and middle school students who consumed fruit 
two or more times per day and vegetables three or more times per day.
    Changes: We have revised this requirement to clarify that we will 
not require programs serving elementary and middle school students to 
use a specific measurement tool, and that they may select an 
appropriate assessment tool for their population.

General Issues Related to Performance Measures

    Comment: One commenter encouraged us to consider requiring all 
grantees to aggregate the data they collect on the required performance 
measures at the school level, as opposed to the district level, to 
increase and enhance accountability for school teachers and school 
personnel.
    Discussion: All participating schools or other grant sites will be 
responsible for collecting data on the students served and aggregating 
those data. Grantees must provide to the Department (as part of their 
required annual and final reports) data that are aggregated across all 
students served in the grant. To minimize burden, we do not require 
that grantees provide data to the Department for required performance 
measures at the school building or classroom levels. While not 
required, grantees are welcome to use data collected at the school 
building and classroom levels to assess project progress.
    Changes: None.
    Comment: Two commenters questioned the need for counting out-of-
school physical activity, stating that there has been little evidence 
of the relationship between school-based programs and a student's out-
of-school physical activity.
    Discussion: Because of the diversity of PEP programs, not all 
programs will be school-based or implemented during school hours. Some 
programs will occur during the after-school hours, on the weekend, or 
during the summer. Other programs may be primarily school-based

[[Page 34905]]

or combine in-school programming with programs and initiatives during 
out-of-school hours, sometimes in partnership with community groups. 
Our intent is to fund programs that begin to create systemic changes in 
students' environments, as well as changes in students' overall habits 
and behavior throughout the day.
    Changes: None.
    Comment: Several commenters stated that the requirement to collect 
data four times during the project period in addition to baseline data 
would be challenging and cumbersome. Some commenters stated that it 
would be difficult for grantees to begin data collection at the start 
of the grant period when initial implementation and professional 
development would be occurring.
    Discussion: Although we recognize that taking time from service 
delivery to collect data may pose challenges for some grantees, we have 
used this data collection strategy and methodology for several years 
with several cohorts of PEP grantees. Generally, we have found that 
grantees have not been challenged by multiple data collections or the 
additional baseline data collection during the first year of the grant 
before program implementation begins. This data collection methodology 
allows us to standardize the way that data are collected and ensure 
that grantees are collecting enough data to evaluate program quality 
and student progress. The frequency of the data collection reduces 
potential confounds related to changes in student population or 
expected seasonal differences. The collection of baseline data before 
and follow-up data after the project is implemented provides data for 
grantees to assess the effectiveness of their individual PEP projects. 
If grantees are unable to collect baseline data at the time of their 
application, they may do so before large-scale implementation of their 
projects at the beginning of the project period.
    Changes: None.

General Comments

    Comment: Some commenters recommended that some of the terms used in 
the NPP be defined. Commenters suggested defining the terms ``physical 
education,'' ``quality physical education,'' ``physical activity,'' and 
``physical fitness'' to improve clarity.
    Discussion: We agree that providing more information about these 
terms as they are used in the context of the PEP competition could be 
helpful to applicants. We will include this information in the 
application package for the program.
    Changes: None.
    Comment: One commenter expressed concern that some school districts 
do not have the expertise to prepare an application for a PEP grant 
based on the requirements proposed in the NPP, and suggested that LEAs 
be allowed to join together to prepare and submit an application for a 
PEP grant.
    Discussion: Under the Department's existing general administrative 
regulations (34 CFR 75.127), applicants eligible to receive a PEP grant 
(LEAs or CBOs) may elect to submit an application on behalf of a 
consortium. All members of a consortium applying for a PEP grant must 
be either LEAs or CBOs. One eligible entity within the consortium must 
submit the application on behalf of the consortium and serve as the 
program's administrative and fiscal agent. We encourage applicants 
applying as a consortium to establish a partnership agreement or a 
memorandum of understanding to delineate roles, responsibilities, and 
expectations.
    Changes: None.
    Comment: One commenter expressed concern that the proposed 
priorities and requirements for PEP will entail outside-the-classroom 
responsibilities for physical education teachers and that these 
responsibilities might, in turn, reduce the effectiveness of those 
teachers in the classroom.
    Discussion: We understand that physical education teachers already 
have significant responsibilities, and that activities related to 
implementing a PEP project are likely to increase those 
responsibilities. However, we do not expect that physical education 
teachers will be responsible for all aspects of implementing a funded 
PEP project. Applicants are free to request funding for project 
personnel, consistent with the scope of their proposed projects.
    Changes: None.
    Comment: Two commenters recommended increasing the focus on 
``shared-use'' or ``joint-use'' agreements so as to enhance and 
encourage the use of school and community recreation facilities and 
community linkages.
    Discussion: We generally agree that shared-use or joint-use 
agreements have the potential to expand options for increasing the 
opportunities for physical activity in a community. However, we believe 
that requirement 2, which requires a review of the broad policy context 
in which projects will operate, is preferable to imposing a requirement 
for all applicants to enact a particular policy, such as shared-use or 
joint-use agreements.
    Additionally, we note that PEP funds must be used to provide 
services to students from kindergarten through the twelfth grade; other 
individuals are not permitted to use the equipment purchased with PEP 
grant funds during the grant period.
    Changes: None.
    Comment: One commenter suggested that we encourage teachers to 
utilize recreational facilities in the community as a way to increase 
links between schools and communities and to help students and their 
families become more aware of opportunities for physical activity in 
their communities.
    Discussion: We agree that collaborative efforts between schools and 
communities are likely to produce the kind of benefits identified by 
the commenter. We believe that the competitive preference priority for 
partnerships will encourage coordinated, collaborative approaches that 
include strategies such as use of community recreational facilities by 
teachers and students.
    Changes: None.
    Comment: Two commenters encouraged the Department to make awards to 
communities with populations that are at risk for obesity and obesity-
related health problems or to sites that experience other significant 
barriers to promoting physical activity for youth.
    Discussion: We agree that the needs of an applicant's target 
population should be considered in selecting grantees. As indicated in 
the NIA, published elsewhere in this issue of the Federal Register, 
applications will be judged by peer reviewers against selection 
criteria that include documentation of the need for the proposed 
project.
    Changes: None.
    Comment: One commenter expressed concern that the page limit for a 
PEP application is insufficient to address all of the required 
priorities.
    Discussion: The NPP did not propose a page limit for applications 
submitted under the PEP competition. We note that the NIA provides a 
recommended length for the project narrative section of the 
application, but applicants are not bound by that recommendation.
    Changes: None.
    Comment: One commenter suggested the Department award only one-year 
grants so that more schools might receive funding in a year.
    Discussion: At the inception of PEP, we made only one-year grants 
under the program. Based on our experience in monitoring the 
implementation of early PEP projects and reviewing final reports for 
those early grants, we concluded that those projects consisted largely 
of

[[Page 34906]]

purchasing equipment that could be used to assist students in meeting 
State standards for physical education. Many funded projects lacked a 
comprehensive approach. Beginning in fiscal year 2004, we expanded the 
program to permit applicants to propose longer-term projects that are 
more comprehensive and incorporate strategies such as curriculum 
development (or revision), modification of policies, and professional 
development strategies. Many program applicants have incorporated some 
of these strategies in subsequent years. Based on this experience, we 
believe that continuing to support multi-year projects will provide the 
best opportunity for schools and communities to make meaningful and 
sustainable changes in their physical and nutrition education 
activities.
    Changes: None.
    Comment: Several commenters expressed concern about the number of 
proposed priorities and requirements, and the time commitment that 
would be required to implement the priorities and requirements, 
including obtaining needed assurances.
    Discussion: We acknowledge that meeting the priorities and 
requirements will require PEP grantees to invest additional time in 
implementing their PEP projects. However, we believe that the absolute 
priority and requirements are necessary to encourage the development of 
comprehensive PEP projects that provide opportunities for schools and 
communities to make a significant contribution to improving the health 
status of the students they serve and to build systems and programs 
that are sustainable. Applicants are not required to address or 
implement the activities in the competitive preference priorities.
    In the past, PEP projects have too often consisted primarily of 
large expenditures for equipment without convincing evidence that those 
project expenditures were coordinated with other related activities in 
the community, or were based on a careful assessment of gaps and needs. 
We have balanced the impact on grantees of additional requirements 
against the potential for creating a cohort of comprehensive and 
focused PEP projects, and believe that the additional investment of 
time and effort is justified.
    Changes: None.
    Comment: One commenter stated that grantees need to be able to use 
PEP grant funds to support a staff position so that the grant 
requirements can be met.
    Discussion: PEP grantees have always been able to request funding 
for a project director or project coordinator position, and many 
grantees have done so. In that regard, applicants should ensure that 
their budget requests for proposed projects are closely aligned with 
the activities and strategies in their application, including funding 
for a project director or project coordinator, if such a position is 
needed.
    Changes: None.
    Comment: One commenter suggested we include a focus on 
infrastructure development and sustainability in PEP.
    Discussion: We agree that infrastructure development and 
sustainability are important elements of a quality physical education 
program. Many of the elements of this program address both 
infrastructure development and sustainability, particularly those 
activities centered on updating nutrition and physical activity related 
policies; building linkages with Federal, State, and local initiatives; 
and updating physical education and nutrition curricula. In addition, 
applicants that opt to establish partnerships may strengthen their 
infrastructure and sustainability capabilities.
    Changes: None.
    Comment: Two commenters requested that we modify certain language 
used throughout the NPP. Specifically, these commenters stated that all 
references to the term ``physical activity'' should be changed to 
``physical education.'' The commenters also recommended that whenever 
the terms ``nutrition'' and ``physical education'' or ``physical 
activity'' appear, that ``physical education'' be placed first because 
the program's primary purpose is to improve physical education.
    Discussion: There are differences between the terms ``physical 
education'' and ``physical activity'', and we believe that we have used 
each term to specifically reference either education or activity 
consistent with the context of the priorities, requirements, and 
definitions. We acknowledge that the intent of the program is to 
increase the percentage of students who meet their State standards for 
physical education; however, the program is also intended to help 
students adopt lifelong healthy habits, as evidenced by an increase in 
physical activity and better nutrition.
    In this context, placing the terms ``physical education'' or 
``physical activity'' before references to ``nutrition'' would be an 
artificial distinction that undercuts the concept of more coordinated, 
comprehensive PEP projects.
    Changes: None.
    Final Priorities: This priority is: Absolute Priority.
    Under this priority, an applicant is required to develop, expand, 
or improve its physical education program and address its State's 
physical education standards by undertaking the following activities: 
(1) Instruction in healthy eating habits and good nutrition and (2) 
physical fitness activities that must include at least one of the 
following: (a) Fitness education and assessment to help students 
understand, improve, or maintain their physical well-being; (b) 
instruction in a variety of motor skills and physical activities 
designed to enhance the physical, mental, and social or emotional 
development of every student; (c) development of, and instruction in, 
cognitive concepts about motor skills and physical fitness that support 
a lifelong healthy lifestyle; (d) opportunities to develop positive 
social and cooperative skills through physical activity participation; 
or (e) opportunities for professional development for teachers of 
physical education to stay abreast of the latest research, issues, and 
trends in the field of physical education.

Competitive Preference Priority 1--Collection of Body Mass Index (BMI) 
Measurement

    We will give a competitive preference priority to applicants that 
agree to implement aggregate BMI data collection, and use it as part of 
a comprehensive assessment of health and fitness for the purposes of 
monitoring the weight status of their student population across time. 
Applicants are required to sign a Program-Specific Assurance that will 
commit them to:
    (a) Use the Centers for Disease Control and Prevention's (CDC) BMI-
for-age growth charts to interpret BMI results 
(http://www.cdc.gov/growthcharts);
    (b) Create a plan to develop and implement a protocol that will 
include parents in the development of their BMI assessment and data 
collection policies, including a mechanism to allow parents to provide 
feedback on the policy. Applicants are required to detail the following 
required components in their aggregate BMI data collection protocol: 
The proposed method for measuring BMI, who will perform the BMI 
assessment (i.e., staff members trained to obtain accurate and reliable 
height and weight measurements), the frequency of reporting, the 
planned equipment to be used, methods for calculating the planned 
sampling frame (if the applicant would use sampling), the policies used 
to ensure student privacy during measurement, how the data will be 
secured to protect student confidentiality, who will have access to

[[Page 34907]]

the data, how long the data will be kept, and what will happen to the 
data after that time. Applicants that intend to inform parents of their 
student's weight status must include plans for notifying parents of 
that status, and must include their plan for ensuring that resources 
are available for safe and effective follow-up with trained medical 
care providers;
    (c) Create a plan to notify parents of the BMI assessment and to 
allow parents to opt out of the BMI assessment and reasonable 
notification of their choice to opt out. Unless the BMI assessment is 
permitted or required by State law, LEA applicants are required to 
detail their policies for providing reasonable notice of the adoption 
or continued use of such policies directly to the parents of the 
students enrolled in the LEA's schools served by the agency. At a 
minimum, the LEA must provide such notice at least annually, at the 
beginning of the school year and within a reasonable period of time 
after any substantive change in such policies, pursuant to the 
Protection of Pupil Rights Amendment, 20 U.S.C. 1232h(c)(2)(A); and
    (d) De-identify the student information (such as by removing the 
student's name and any identifying information from the record and 
assigning a record code), aggregate the BMI data at the school or 
district level, and make the aggregate data publicly available and 
easily accessible to the public annually. Applicants must describe 
their plan for the level of reporting they plan to use, depending on 
the size of the population, such as at the district level or the school 
level. Applicants must also detail in their application their plan for 
how these data will be used in coordination with other required data 
for the program, such as fitness, physical activity, and nutritional 
intake measures, and how the combination of these measures will be used 
to improve physical education programming and policy.
    On June 18, 1991, 17 Federal Departments and Agencies, including 
the Department of Education, adopted a common set of regulations known 
as the Federal Policy for the Protection of Human Subjects or ``Common 
Rule.'' See 34 CFR part 97. Applicants that engage in BMI data 
collection may be subject to the Department's Protection of Human 
Subjects regulations if the data are used in research funded by the 
Federal government or for any future research conducted by an 
institution that has adopted the Federal policy for all research of 
that institution. The regulations define research as ``a systematic 
investigation, including research development, testing and evaluation, 
designed to develop or contribute to generalizable knowledge. 
Activities that meet this definition constitute research for purposes 
of this policy, whether or not they are conducted or supported under a 
program which is considered research for other purposes. For example, 
some demonstration and service programs may include research 
activities.'' 34 CFR 97.102(d). Information on Human Subjects 
requirements is found at:  
http://www.ed.gov/about/offices/list/ ocfo/humansub.html.
    Applications that do not provide a Program-Specific Assurance 
signed by an Authorized Representative committing the applicant to 
completing previously listed tasks (a) through (d) during their project 
period are not eligible for additional points under competitive 
preference priority 1.
    In implementing this priority, we encourage applicants to consult 
with their partners to determine if and how any of the partners could 
contribute to the data collection, reporting, or potential referral 
processes.

Competitive Preference Priority 2-- Partnerships Between Applicants and 
Supporting Community Entities

    We will give a competitive preference priority to an applicant that 
includes in its application an agreement that details the participation 
of required partners, as defined in this notice. The agreement must 
include a description of: (1) Each partner's roles and responsibilities 
in the project; (2) how each partner will contribute to the project, 
including any contribution to the local match; (3) an assurance that 
the application was developed after timely and meaningful consultation 
between the required parties, as defined in this notice; and (4) a 
commitment to work together to reach the desired goals and outcomes of 
the project. The partner agreement must be signed by the Authorized 
Representative of each of the required partners and by other partners 
as appropriate.
    For an LEA applicant, this partnership agreement must include: (1) 
The LEA; (2) at least one CBO; (3) a local public health entity, as 
defined in this notice; (4) the LEA's food service or child nutrition 
director; and (5) the head of the local government, as defined in this 
notice.
    For a CBO applicant, the partnership agreement must include: (1) 
The CBO; (2) a local public health entity, as defined in this notice; 
(3) a local organization supporting nutrition or healthy eating, as 
defined in this notice; (4) the head of the local government, as 
defined in this notice; and (5) the LEA from which the largest number 
of students expected to participate in the CBO's project attend. If the 
CBO applicant is a school, such as a parochial or other private school, 
the applicant must describe its school as part of the partnership 
agreement but is not required to provide an additional signature from 
an LEA or another school. A CBO applicant that is a school and serves 
its own population of students is required to include another CBO as 
part of its partnership and include the head of that CBO as a signatory 
on the partnership agreement.
    Although partnerships with other parties are required for this 
priority, the eligible applicant must retain the administrative and 
fiscal control of the project.

Types of Priorities

    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).

Final Requirements

    The Assistant Deputy Secretary for Safe and Drug-Free Schools 
establishes the following requirements for this program. We may apply 
one or more of these requirements in any year in which this program is 
in effect.

Requirement 1--Align Project Goals With Identified Needs Using the 
School Health Index

    Applicants must complete the physical activity and nutrition 
questions in Modules 1-4 of the CDC's SHI self-assessment tool and 
develop project goals and plans that address the identified needs. 
Modules 1-4 are School Health and Safety Policies and

[[Page 34908]]

Environment, Health Education, Physical Activity and Other Physical 
Activity Programs, and Nutrition Services. LEA applicants must use the 
SHI self-assessment to develop a School Health Improvement Plan focused 
on improving these issues, and design an initiative that addresses 
their identified gaps and weaknesses. Applicants must include their 
Overall Score Card for the questions answered in Modules 1-4 in their 
application, and correlate their School Health Improvement Plan to 
their project design. Grantees must also complete the same modules of 
the SHI at the end of the project period and submit the Overall Score 
Card from the second assessment in their final reports to demonstrate 
SHI completion and program improvement as a result of PEP funding.
    If a CBO applicant (unless the CBO is a school) is in a partner 
agreement with an LEA or school, it must collaborate with its partner 
or partners to complete Modules 1-4 of the SHI.
    Alternatively, if the CBO has not identified a school or LEA 
partner, the CBO is not required to do Modules 1-4 of the SHI but must 
use an alternative needs assessment tool to assess the nutrition and 
physical activity environment in the community for children. CBO 
applicants are required to include their overall findings from the 
community needs assessment and correlate their findings with their 
project design. Grantees will be required to complete the same needs 
assessment at the end of their project and submit their findings in 
their final reports to demonstrate the completion of the assessment and 
program involvement as a result of PEP funding.

Requirement 2--Nutrition- and Physical Activity-Related Policies

    Grantees must develop, update, or enhance physical activity 
policies and food- and nutrition-related policies that promote healthy 
eating and physical activity throughout students' everyday lives, as 
part of their PEP projects. Applicants must describe in their 
application their current policy framework, areas of focus, and the 
planned process for policy development, implementation, review, and 
monitoring. Grantees will be required to detail at the end of their 
project period in their final reports the physical activity and 
nutrition policies selected and how the policies improved through the 
course of the project.
    Applicants must sign a Program-Specific Assurance that commits them 
to developing, updating, or enhancing these policies during the project 
period. Applicants that do not submit such a Program-Specific Assurance 
signed by the applicant's Authorized Representative are ineligible for 
the competition.

Requirement 3--Linkage With Local Wellness Policies

    Applicants that are participating in a program authorized by the 
Richard B. Russell National School Lunch Act and the Child Nutrition 
and WIC Reauthorization Act of 2004must describe in their applications 
their school district's established local wellness policy and how the 
proposed PEP project will align with, support, complement, and enhance 
the implementation of the applicant's local wellness policy. The LEA's 
local wellness policy should address all requirements in the Child 
Nutrition Act of 1966.
    CBO applicants must describe in their applications how their 
proposed projects would enhance or support the intent of the local 
wellness policies of their LEA partner(s), if they are working in a 
partnership group.
    If an applicant or a member of its partnership group does not 
participate in the school lunch program authorized by the Richard B. 
Russell National School Lunch Act and the Child Nutrition and WIC 
Reauthorization Act of 2004, it will not necessarily have a local 
wellness policy and, thus, is not required to meet this requirement or 
adopt a local wellness policy. However, we encourage those applicants 
to develop and adopt a local wellness policy, consistent with the 
provisions in the Richard B. Russell National School Lunch Act and the 
Child Nutrition and WIC Reauthorization Act of 2004 in conjunction with 
its PEP project.
    Applicants must sign a Program-Specific Assurance that commits them 
to align their PEP project with the district's Local Wellness Policy, 
if applicable. Applicants to whom this requirement applies that do not 
submit a Program-Specific Assurance signed by the applicant's 
Authorized Representative are ineligible for the competition.

Requirement 4--Linkages With Federal, State, and Local Initiatives

    If an applicant is implementing the CDC's Coordinated School Health 
program, it must coordinate project activities with that initiative and 
describe in its application how the proposed PEP project would be 
coordinated and integrated with the program.
    If an applicant receives funding under the USDA's Team Nutrition 
initiative (Team Nutrition Training Grants), the applicant must 
describe in its application how the proposed PEP project supports the 
efforts of this initiative.
    An applicant for a PEP project in a community that receives a grant 
under the Recovery Act Communities Putting Prevention to Work--
Community Initiative must agree to coordinate its PEP project efforts 
with those under the Recovery Act Communities Putting Prevention to 
Work--Community Initiative.
    Applicants and PEP-funded projects must complement, rather than 
duplicate, existing, ongoing or new efforts whose goals and objectives 
are to promote physical activity and healthy eating or help students 
meet their State standards for physical education.
    Applicants must sign a Program-Specific Assurance that commits them 
to align their PEP project with the Coordinated School Health program, 
Team Nutrition Training Grant, Recovery Act Communities Putting 
Prevention to Work--Community Initiative, or any other similar Federal, 
State, or local initiatives. Applicants that do not submit a Program-
Specific Assurance signed by the applicant's Authorized Representative 
are ineligible for the competition.

Requirement 5--Updates to Physical Education and Nutrition Instruction 
Curricula

    Applicants that plan to use grant-related funds, including Federal 
and non-Federal matching funds, to create, update, or enhance their 
physical education or nutrition education curricula are required to use 
the Physical Education Curriculum Analysis Tool (PECAT) and submit 
their overall PECAT scorecard, and the curriculum improvement plan from 
PECAT. Also, those applicants that plan to use grant-related funds, 
including Federal and non-Federal matching funds to create, update, or 
enhance their nutrition instruction in health education must complete 
the healthy eating module of the Health Education Curriculum Analysis 
Tool (HECAT). Applicants must use the curriculum improvement plan from 
the HECAT to identify curricular changes to be addressed during the 
funding period. Applicants must also describe how the HECAT assessment 
would be used to guide nutrition instruction curricular changes. If an 
applicant is not proposing to use grant-related funds for physical 
education or nutrition instruction curricula, it would not need to use 
these tools.

[[Page 34909]]

Requirement 6--Equipment Purchases

    Purchases of equipment with PEP funds or with funds used to meet 
the program's matching requirement must be aligned with the curricular 
components of the proposed physical education and nutrition program. 
Applicants must commit to aligning the students' use of the equipment 
with PEP elements applicable to their projects, identified in the 
absolute priority in this notice, and any applicable curricula by 
signing a Program-Specific Assurance. Applicants that do not submit a 
Program-Specific Assurance signed by the applicant's Authorized 
Representative are ineligible for the competition.

Requirement 7--Increasing Transparency and Accountability

    Grantees must create or use existing reporting mechanisms to 
provide information on students' progress, in the aggregate, on the key 
program indicators, as described in this notice and required under the 
Government Performance and Results Act, as well as on any unique 
project-level measures proposed in the application. Grantees that are 

educational agencies or institutions are subject to applicable Federal, 
State, and local privacy provisions, including the Family Educational 
Rights and Privacy Act--a law that generally prohibits the non-
consensual disclosure of personally identifiable information in a 
student's education record. All grantees must comply with applicable 
Federal, State, and local privacy provisions. The aggregate-level 
information should be easily accessible by the public, such as posted 
on the grantee's or a partner's Web site. Applicants must describe in 
their application the planned method for reporting.
    Applicants must commit to reporting information to the public by 
signing a Program-Specific Assurance. Applicants that do not submit a 
Program-Specific Assurance signed by the applicant's Authorized 
Representative are ineligible for the competition.

Requirement 8--Participation in a National Evaluation

    Applicants must provide documentation of their commitment to 
participate in the Department's national evaluation. An LEA applicant 
must include a letter from the research office or research board 
approving its participation in the evaluation (if approval is needed), 
and a letter from the Authorized Representative agreeing to participate 
in the evaluation.

Requirement 9--Required Performance Measures and Data Collection 
Methodology

    Grantees must collect and report data on three GPRA measures using 
uniform data collection methods. Measure one assesses student physical 
activity levels: The percentage of students served by the grant who 
engage in 60 minutes of daily physical activity. Grantees are required 
to use pedometers for students in grades K-12 and an additional 3-Day 
Physical Activity Recall (3DPAR) instrument to collect data on students 
in grades 5-12.
    Measure two focuses on student health-related fitness levels: The 
percentage of students served by the grant who achieve age-appropriate 
cardiovascular fitness levels. Grantees are required to use the 20-
meter shuttle run, a criterion-referenced health-related fitness 
testing protocol, to assess cardiovascular fitness in middle and high 
school students.
    Measure three focuses on student nutrition: The percentage of 
students served by the grant who consume fruit two or more times per 
day and vegetables three or more times per day. Programs serving high 
school students are required to use the nutrition-related questions 
from the Youth Risk Behavior Survey to determine the number of students 
who meet these goals. Programs serving elementary and middle school 
students are not required to use a specific measurement tool, and may 
select an appropriate assessment tool for their population.
    For each measure, grantees are required to collect and aggregate 
data from four discrete data collection periods throughout each year. 
During the first year, grantees have an additional data collection 
period prior to program implementation to collect baseline data.

Final Definitions

    The Assistant Deputy Secretary for Safe and Drug-Free Schools 
applies the following definitions for this program.
    We may apply one or more of these definitions in any year in which 
this program is in effect.
    Head of local government means the head of, or an appropriate 
designee of, the party responsible for the civic functioning of the 
county, city, town, or municipality would be considered the head of 
local government. This includes, but is not limited to, the mayor, city 
manager, or county executive.
    Local public health entity means an administrative or service unit 
of local or State government concerned with health and carrying some 
responsibility for the health of a jurisdiction smaller than the State 
(except for Rhode Island and Hawaii, because these States' health 
departments operate on behalf of local public health and have no sub-
State unit). The definition applies to the State health department or 
the State public health entity in the event that the local public 
health entity does not govern health and nutrition issues for the local 
area.
    Organization supporting nutrition or healthy eating means a local 
public or private non-profit school, health-related professional 
organization, local public health entity, or local business that has 
demonstrated interest and efforts in promoting student health or 
nutrition. This term includes, but is not limited to LEAs (particularly 
an LEA's school food or child nutrition director), grocery stores, 
supermarkets, restaurants, corner stores, farmers' markets, farms, 
other private businesses, hospitals, institutions of higher education, 
Cooperative Extension Service and 4H Clubs, and community gardening 
organizations, when such entities have demonstrated a clear intent to 
promote student health and nutrition or have made tangible efforts to 
do so. This definition does not include representatives from trade 
associations or representatives from any organization representing any 
producers or marketers of food or beverage product(s).

    Note:  This notice does not solicit applications. In any year in 
which we choose to use one or more of these priorities and 
requirements, we invite applications through a notice in the Federal 
Register.

    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 final regulatory 
action.
    The potential costs associated with this final regulatory action 
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 final regulatory action, we have determined 
that the benefits of the final priorities and requirements justify the 
costs.
    We have determined, also, that this final regulatory action does 
not unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Discussion of Costs and Benefits

    We fully discussed the costs and benefits of this regulatory action 
in the

[[Page 34910]]

notice of proposed priorities, requirements, and definitions. After 
review, we determined that, although grantees may anticipate costs in 
developing infrastructure partnerships, supporting integrated, 
comprehensive programming and policies, and building data and 
accountability systems and processes, the benefits of the priorities, 
requirements, and definitions justify the costs.

Regulatory Flexibility Act Certification

    The Secretary certifies that this regulatory action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities that this proposed regulatory action will affect are 
small LEAs or nonprofit organizations applying for and receiving funds 
under this program. The Secretary believes that the costs imposed on 
applicants by the priorities, requirements, and definitions would be 
limited to paperwork burden related to preparing an application and 
that the benefits of implementing these proposals would outweigh any 
costs incurred by applicants.
    Participation in this program is voluntary. For this reason, the 
priorities, requirements, and definitions would impose no burden on 
small entities in general. Eligible applicants will determine whether 
to apply for funds, and have the opportunity to weigh the requirements 
for preparing applications, and any associated costs, against the 
likelihood of receiving funding and the requirements for implementing 
projects under the program. Eligible applicants most likely would apply 
only if they determine that the likely benefits exceed the costs of 
preparing an application. The likely benefits include the potential 
receipt of a grant as well as other benefits that may accrue to an 
entity through its development of an application, such as the use of 
that application to spur improvement in physical education planning 
without additional Federal funding.
    The U.S. Small Business Administration Size Standards defines as 
``small entities'' for-profit or nonprofit institutions with total 
annual revenue below $7,000,000 or, if they are institutions controlled 
by small governmental jurisdictions (that are comprised of cities, 
counties, towns, townships, villages, school districts, or special 
districts), with a population of less than 50,000. The Urban 
Institute's National Center for Charitable Statistics reported that of 
203,635 nonprofit organizations that had an educational mission and 
reported revenue to the IRS by July 2009, 200,342 (or about 98 percent) 
had revenues of less than $5 million. In addition, there are 12,484 
LEAs in the country that meet the definition of small entity. However, 
given program history, the Secretary believes that only a small number 
of these entities would be interested in applying for funds under this 
program, thus reducing the likelihood that this final regulatory action 
would have a significant economic impact on small entities.
    Further, the action may help small entities determine whether they 
have the interest, need, or capacity to implement activities under the 
program and, thus, prevent small entities that do not have such an 
interest, need, and capacity from absorbing the burden of applying.
    This regulatory action would not have a significant economic impact 
on small entities once they receive a grant because they would be able 
to meet the costs of compliance using the funds provided under this 
program and with any funds they might obtain from external parties to 
fulfill the matching requirements of the program.
    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.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or computer diskette) on request to the program contact 
person listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: You can view this document, as 
well as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF) on the 
Internet at the following site: http://www.ed.gov/news/fedregister. To 
use PDF you must have Adobe Acrobat Reader, which is available free at 
this site.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: 
http://www.gpoaccess.gov/nara/index.html.


    Dated: June 14, 2010.
Kevin Jennings,
Assistant Deputy Secretary for Safe and Drug-Free Schools.
[FR Doc. 2010-14730 Filed 6-15-10; 4:15 pm]
BILLING CODE 4000-01-P