[Federal Register: August 13, 2010 (Volume 75, Number 156)]
[Proposed Rules]               
[Page 49432-49435]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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34 CFR Part 222

[Docket ID ED-2010-OESE-0013]
RIN 1810-AB11

Impact Aid Programs

AGENCY: Office of Elementary and Secondary Education, Department of 

ACTION: Notice of proposed rulemaking.


SUMMARY: The Secretary proposes to amend the regulations governing the 
Impact Aid Discretionary Construction Program, which is authorized 
under section 8007(b) of the Elementary and Secondary Education Act of 
1965, as amended (ESEA). Through this program, the Department provides 
competitive grants for emergency repairs and modernization of school 
facilities to certain eligible local educational agencies (LEAs) that 
receive Impact Aid formula funds. The proposed regulations amend a 
provision regarding the submission of applications for these Federal 
funds, which the Department believes will improve the administration 
and distribution of funds under this program. The proposed regulations 
would apply to the grant competitions after the competition for fiscal 
year (FY) 2009 funds.

DATES: We must receive your comments on or before September 13, 2010.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to 
http://www.regulations.gov to submit your comments electronically.

[[Page 49433]]

Information on using Regulations.gov, including instructions for 
accessing agency documents, submitting comments, and viewing the 
docket, is available on the site under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed regulations, address 
them to Catherine Schagh, Director, Impact Aid Program, U.S. Department 
of Education, 400 Maryland Avenue, SW., Room 3E105, LBJ, Washington, DC 

    Privacy Note: The Department's policy for comments received from 
members of the public (including those comments submitted by mail, 
commercial delivery, or hand delivery) is to make these submissions 
available for public viewing in their entirety on the Federal 
eRulemaking Portal at http://www.regulations.gov. Therefore, 
commenters should be careful to include in their comments only 
information that they wish to make publicly available on the 

Program, U.S. Department of Education, 400 Maryland Avenue, SW., 
Washington, DC 20202. Telephone: (202) 260-1357 or by e-mail: 
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in this section.


Invitation To Comment

    We invite you to submit comments regarding these proposed 
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments, in person, in Room 3C101, 400 
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. 
and 4:00 p.m., Eastern time, Monday through Friday of each week except 
Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 


    The Impact Aid Discretionary Construction Program is authorized 
under section 8007(b) of the ESEA.
    The purpose of this program is to assist certain eligible Impact 
Aid LEAs in meeting the emergency or modernization needs of their 
school facilities. The current regulations governing the Impact Aid 
Discretionary Construction Program are in 34 CFR 222.170 through 
222.196 and were most recently amended on March 15, 2004, to govern the 
FY 2003 and subsequent grant competitions (69 FR 12234). Through this 
notice, we are proposing to amend Sec.  222.183 governing the 
submission of multiple grant applications. The proposed amendment is 
based on our experience in implementing this program since the most 
recent regulations were published in 2004.

Significant Proposed Regulations

Section 222.183 How does an LEA apply for a grant?

    Statute: Section 8007(b)(6) of the ESEA provides that an LEA that 
desires to receive a grant shall submit an application to the Secretary 
at such time, in such manner, and accompanied by such information as 
the Secretary may require.
    Current Regulations: Current Sec.  222.183 specifies several 
application requirements, and provides that a local educational agency 
(LEA) may submit multiple applications for multiple educational 
facilities in a fiscal year.
    Proposed Regulations: The proposed regulations would limit an LEA 
to submitting one application for one facility per competition.
    Reasons: In 2004, when the most recent Impact Aid Discretionary 
Construction Program regulations were issued, the Department did not 
know how many LEAs would qualify for funding nor what the magnitude of 
their need would be under this program. Accordingly, we originally 
provided in the regulations that an applicant could submit multiple 
applications per competition so that the applicant would be able to 
separate into different applications different types of projects with 
different levels of urgency.
    Our intent was to make the competition flexible and to ensure that 
we received enough high-quality applications to enable the Department 
to use the full appropriated amount.
    The competitions under this program are based primarily on 
statutorily mandated objective and subjective scoring. Objective scores 
measure: the percentage of students in the LEA who are eligible under 
section 8003 of the Impact Aid Program; the percentage of those 
students enrolled in the building for which funding is sought; the area 
of tax-exempt Federal property in the LEA; and the LEA's assessed value 
of real property and its tax rate. If an LEA receives high scores on 
these objective criteria, its proposed projects may rank higher on the 
funding list than the condition of its building(s) (i.e., the 
subjective measure) would warrant, and LEAs with more urgent facility 
needs would not be funded. This has resulted in the unintended 
consequence of a few LEAs receiving high percentages of the available 
funding. For example, from the FY 2006 competition, one LEA received 13 
out of 25 grants and 73 percent of the funds.
    In addition, since this program was first funded and operated under 
the March 15, 2004, final regulations, the appropriation levels have 
decreased significantly, from $27 million (in FY 2003) to approximately 
$17 million (in FY 2009). With this reduction and given the scoring 
structure, if a single applicant receives multiple awards, an even 
smaller portion of the remaining funds is available for distribution to 
other LEAs, which generally has meant that the funds could not reach a 
larger pool of the eligible applicants.
    These proposed regulations would give more applicants an 
opportunity to receive grants to remediate urgent emergency and 
modernization needs in their school facilities. We seek comments on 
alternative approaches that would permit the Department to distribute 
grant funding to a larger number of LEAs.
    Executive Order 12866: Under Executive Order 12866, the Secretary 
must determine whether the regulatory action is ``significant'' and 
therefore subject to the requirements of the Executive order and 
subject to review by the Office of Management and Budget (OMB). Section 
3(f) of Executive Order 12866 defines a ``significant regulatory 
action'' as an action likely to result in a rule that may (1) Have an 
annual effect

[[Page 49434]]

on the economy of $100 million or more, or adversely affect a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities 
in a material way (also referred to as an ``economically significant'' 
rule); (2) create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; (3) materially alter the 
budgetary impacts of entitlement grants, user fees, or loan programs or 
the rights and obligations of recipients thereof; or (4) raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive order. 
Pursuant to the terms of the Executive order, it has been determined 
that this regulatory action is not a significant regulatory action 
subject to OMB review under section 3(f) of Executive Order 12866.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections?
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section of this preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. The small entities that would be affected by these 
regulations are small LEAs receiving Federal funds under this program. 
In the FY 2008 grant competition, fewer than 50 applications that were 
eligible to be evaluated by field readers were from small entities. In 
addition, we do not believe that the regulations would have a 
significant economic impact on the limited number of small LEAs 
affected, because the regulations would not impose excessive regulatory 
burdens or require unnecessary Federal supervision.
    The proposed regulations would benefit both small and large 
entities in that they would provide more equitable opportunities for 
funding of school construction needs.
    The proposed regulations would impose minimal paperwork burden 
requirements for all applicants and minimal requirements with which the 
grant recipients must comply. However, the Secretary specifically 
invites comments on the effects of the proposed regulations on small 
entities, and on whether there may be further opportunities to reduce 
any potential adverse impact or increase potential benefits resulting 
from these proposed regulations without impeding the effective and 
efficient administration of the Impact Aid Discretionary Construction 
Program. Commenters are requested to describe the nature of any effect 
and provide empirical data and other factual support for their views to 
the extent possible.

Paperwork Reduction Act of 1995

    The proposed amendment to Sec.  222.183 would modify the 
information collection requirements in that section; the Department 
does not believe the proposed changes add any new burden or decrease 
any burden to local educational agencies. The burden associated with 
Sec.  222.183 was approved by OMB under OMB Control Number 1810-0687, 
which expires 9/30/2011. The proposed amendment would limit the number 
of applications to one per LEA. The Department expects that LEAs that 
have in the past scored lower on the objective scoring criteria will be 
encouraged to apply and the total number of applications will remain 
the same.

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.

Assessment of Educational Impact

    In accordance with section 411 of the General Education Provisions 
Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on 
whether these proposed regulations would require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.
    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: 

(Catalog of Federal Domestic Assistance Number 84.041 Impact Aid 
Discretionary Construction Program)

List of Subjects in 34 CFR Part 222

    Education, Education of children with disabilities, Educational 
facilities, Elementary and secondary education, Federally affected 
areas, Grant programs-education, Indians--education, Public housing, 
Reporting and recordkeeping requirements, School construction, Schools.

Thelma Mel[eacute]ndez de Santa Ana,
Assistant Secretary for Elementary and Secondary Education.
    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 222 of title 34 of the Code of Federal Regulations.


    1. The authority citation for part 222 continues to read as 

    Authority:  20 U.S.C. 7701-7714, unless otherwise noted.

    2. Section 222.183 is amended by revising paragraph (a) to read as 

[[Page 49435]]

Sec.  222.183  How does an LEA apply for a grant?

    (a) To apply for funds under this program, an LEA may submit only 
one application for one educational facility for each competition.
* * * * *
[FR Doc. 2010-20065 Filed 8-12-10; 8:45 am]