[Federal Register: August 16, 2002 (Volume 67, Number 159)]
[Rules and Regulations]
[Page 53679-53687]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au02-22]
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Part III
Department of Education
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34 CFR Part 222
Impact Aid Programs; Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 222
RIN 1810-AA94
Impact Aid Programs
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final regulations.
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SUMMARY: The Secretary issues these final regulations to implement a
new Impact Aid discretionary construction grant program, which is
authorized under section 8007(b) of the Elementary and Secondary
Education Act (the Act), as amended by the No Child Left Behind Act of
2001. The program provides competitive grants for emergency repairs and
modernization of school facilities to certain eligible school districts
that receive Impact Aid funds. These final regulations incorporate
statutory requirements and provide requirements for applying and
qualifying for, as well as spending, the Federal funds provided under
this program. These final regulations apply only to the fiscal year
(FY) 2002 grant competition.
DATES: These regulations are effective September 16, 2002.
FOR FURTHER INFORMATION CONTACT: Catherine Schagh, Impact Aid Program,
U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC
20202-6244. Telephone: (202) 260-3858 or via Internet, at:
Impact.Aid@ed.gov.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These final regulations implement the new
discretionary Impact Aid construction grant program, which is
authorized under section 8007(b) of the Act, as amended by the No Child
Left Behind Act of 2001 (Pub. L. 107-110, enacted January 8, 2002).
The purpose of the program is to assist eligible Impact Aid school
districts in meeting the emergency or modernization needs of their
school facilities.
The following is a summary of the regulatory provisions, such as
interpretations of statutory text, or standards and procedures for the
operation of the program, that the Secretary believes are necessary for
implementing the statute. We discuss substantive issues under the
sections of the regulations to which they pertain. Generally, we do not
address regulatory provisions that are technical or otherwise minor in
effect.
Section 222.172 What Activities May an LEA Conduct With Funds Under
This Program?
The regulations detail the types of construction activities that
recipients of emergency and modernization grants may conduct with grant
funds. These provisions also clarify that both emergency and
modernization grants may only be used for new construction when an LEA
holds title to an existing facility and when the proposed construction
meets the standards detailed in the regulations for determining that
improving a current facility is more costly than replacing it.
Section 222.173 What Activities Are Prohibited?
Section 222.173 specifies the various types of activities that may
not be supported with grant funds under this program. The statute
prohibits using grant funds for acquiring real property but allows for
the new construction of a building in limited circumstances. Since a
building is also typically considered to be real property, the
provision clarifies, consistent with the authorizing statute, that
grant funds cannot be used to acquire an interest in real property
except when the Secretary determines under Sec. 222.173 that
construction of a new building will be permitted.
Section 222.176 What Definitions Apply to This Program?
The regulations define the term ``emergency'' to include health and
safety conditions that present an immediate threat to the building's
occupants, as well as those conditions that will present health and
safety hazards in the very near future. The definition also provides
examples of some of the types of health and safety conditions that the
Secretary anticipates the emergency grants will address.
The provisions clarify that ``modernization'' grants must be used
to repair, renovate, alter, or extend facilities in order to support a
contemporary educational program that is consistent with the laws,
standards, or common practices in the LEA's State. Since the Secretary
anticipates that the need for these grants will exceed the amount of
available funds, this provision clarifies that the Secretary does not
intend that these grants be used to fund facility modernization
projects that exceed a State's standards.
Eligibility
The statutory eligibility criteria for emergency and modernization
grants are complex and further complicated by funding provisions that
specify, in descending priority order, two emergency grant and two
modernization grant eligibility categories. These regulations provide
details on each of the four eligibility categories so that applicants
can determine under which funding priority their application will be
considered. This will be particularly important for applicants to
consider because the statute mandates that the Secretary must first use
available funds for applications in the first priority. After all
eligible applications in the first priority have been funded, the
Secretary considers applications in the second priority, followed by
the third and fourth priorities in descending order.
How To Apply for a Grant
The statute does not specify a complete application process; the
regulations provide for an application that requests objective and
subjective information that will be used to rank applicants. An
applicant will also be required to agree to certain assurances that are
contained in the application package. In addition, the Secretary,
before making final award decisions, will request detailed data on the
funds that the highest-ranked applicants have available to contribute
to their proposed projects. The regulations specify that the
applications will be based on student and fiscal data from the
preceding fiscal year, unless satisfactory fiscal data from that year
are not available.
How Grants Are Made
The Department will review applications separately among the four
funding priorities. Panel reviewers will rank the applications by
category based on the selection criteria and any other applicable
factors that will be detailed in an application closing notice
published in the Federal Register.
Prior to making final funding decisions and determining final grant
amounts, the Secretary may verify certain data with applicants' States
and will also assess available resources for all highly ranked
grantees, limitations on the grant awards for certain grantee
categories, and the availability of in-kind contributions.
As detailed in the ``Eligibility'' portion of the regulations, the
Secretary will generally fund all eligible
[[Page 53681]]
applications in the first application priority group before funding
applications in each of the next three groups. This will vary if the
remaining funds are insufficient to fund another project in the
highest-priority group but adequate to fund a project in the next
priority group. The next-ranked applicants in the higher-priority group
will be offered the opportunity to accept funds for a portion of their
projects before lower-priority projects are funded. If they accept the
lower grant amount, they would forfeit the right to have their
applications carried over and considered for funding in the next year's
competition. However, they could submit new applications for the next
year for the remainder of their projects.
Executive Order 12866
Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. The potential costs associated
with the regulations are those resulting from statutory requirements
and those we have determined to be necessary for administering this
program effectively and efficiently. Elsewhere in this SUPPLEMENTARY
INFORMATION section we identify and explain burdens specifically
associated with information collection requirements. See the heading
Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits justify the costs. We have also determined that this
regulatory action does not unduly interfere with State, local, and
tribal governments in the exercise of their governmental functions.
Summary of Potential Costs and Benefits
The Secretary believes that these regulations are necessary to
clarify complex statutory provisions. The costs associated with these
provisions are not only minimal but also justified in terms of the
benefits.
Waiver of Proposed Rulemaking
Under the Administrative Procedure Act (5 U.S.C. 553), the
Department generally offers interested parties the opportunity to
comment on proposed regulations. However, in order to make timely grant
awards for FY 2002, the Secretary has decided to issue these final
regulations without first publishing proposed regulations for public
comment. These regulations will apply to the FY 2002 grant competition
only. The Secretary takes this action under section 437(d)(1) of the
General Education Provisions Act.
At a later date the Assistant Secretary plans to publish a notice
of proposed rulemaking for this program and offer interested parties
the opportunity to comment. The proposed regulations would apply to
grant competitions under the program beginning in FY 2003.
Regulatory Flexibility Act Certification
The Secretary certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.
The small entities that would be affected by these regulations are
small LEAs receiving Federal funds under this program. However, the
regulations would not have a significant economic impact on the small
LEAs affected because the regulations will not impose excessive
regulatory burdens or require unnecessary Federal supervision. The
regulations would impose minimal paperwork burden requirements for
applicants and minimal requirements with which the grant recipients
must comply.
Paperwork Reduction Act of 1995
Sections 222.183, 222.184, 222.185, and 222.186 contain information
collection requirements. As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the Department of Education submitted a copy
of the information collection ``Impact Aid Discretionary Construction
Grant Program'' to the Office of Management and Budget (OMB) for its
review and approval. OMB has granted provisional clearance on the
information collection requirements associated with this grant
application. The Department nevertheless continues to seek public
comment on these information collection requirements.
The Department will use the information collected in the
application to determine whether applicants meet the basic eligibility
requirements of section 8007(b) of the Act, to determine whether the
applicant is requesting an emergency or modernization grant, and to
determine which of the four priorities described in the statute applies
to the individual application. In addition, information on the
application will be used to evaluate applications within each of the
four priorities. Among the criteria the Secretary is required to
consider are the applicant's total assessed value of real property that
may be taxed for school purposes, its use of bonding capacity, and the
nature and severity of its need for funds.
Since the statute requires applicants to apply for funds, the
Department would not be able to award these funds without the
application to collect the required information.
We collect information only once for each school for which the
applicant seeks funds. We estimate annual reporting and recordkeeping
burden for this collection of information to average 3.3 hours for each
respondent for 250 applicants, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Thus, we estimate the total annual reporting
and recordkeeping burden for this collection to be 1,453.5 hours.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC
20503; Attention: Desk Officer for U.S. Department of Education. You
may also send a copy of these comments to the Department representative
named in the FOR FURTHER INFORMATION section of this preamble.
We consider your comments on this proposed collection of
information in--
Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
the proposed collection, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submission of
responses.
Your comments will be considered for the FY 2003 competition. To
ensure that OMB gives your comments full consideration, we ask that you
send comments concerning the collection of information contained in
these regulations between 30 and 60 days after publication of this
document in the Federal Register.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34
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CFR part 79. One of the objectives of the Executive Order is to foster
an intergovernmental partnership and a strengthened federalism. The
Executive Order relies on processes developed by State and local
governments for coordination and review of proposed Federal financial
assistance.
This document provides early notification of our specific plans and
actions for this program.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/legislation/FedRegister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
You may also view this document in PDF at the following site:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ed.gov/offices/OESE/ImpactAid/.
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.access.gpo.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number 84.041C Impact Aid
Discretionary Construction Grants.)
List of Subjects in 34 CFR Part 222
Education, Education of children with disabilities, Educational
facilities, Elementary and secondary education, Federally affected
areas, Grant programs--education, Indians--education, Public housing,
Reporting and recordkeeping requirements, School construction, Schools.
Dated: August 8, 2002.
Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.
For the reasons discussed in the preamble, the Secretary amends
title 34 of the Code of Federal Regulations by adding a new subpart L
to part 222 to read as follows:
PART 222--IMPACT AID PROGRAMS
1. The authority citation for part 222 continues to read as
follows:
Authority: 20 U.S.C. 7701-7714, unless otherwise noted.
2. Add subpart L to part 222 to read as follows:
Subpart L--Impact Aid Discretionary Construction Grant Program Under
Section 8007(b) of the Act
General
Sec.
222.170 What is the purpose of the Impact Aid Discretionary
Construction grant program (Section 8007(b) of the Act)?
222.171 In general, what LEAs may be eligible for Discretionary
Construction grants?
222.172 What activities may an LEA conduct with funds received
under this program?
222.173 What activities are prohibited?
222.174 What other prohibitions apply to these funds?
222.175 What regulations apply to recipients of funds under this
program?
222.176 What definitions apply to this program?
Eligibility
222.177 What eligibility requirements must an LEA meet to apply
for an emergency grant under the first priority?
222.178 What eligibility requirements must an LEA meet to apply
for an emergency grant under the second priority?
222.179 Under what circumstances may an ineligible LEA apply on
behalf of a school for an emergency grant under the second priority?
222.180 What eligibility requirements must an LEA meet to apply
for a modernization grant under the third priority?
222.181 What eligibility requirements must an LEA meet to apply
for a modernization grant under the fourth priority?
222.182 Under what circumstances may an ineligible LEA apply on
behalf of a school for a modernization grant under the fourth
priority?
How To Apply for a Grant
222.183 How does an LEA apply for a grant?
222.184 What information must an application contain?
222.185 What additional information must be included in an
emergency grant application?
222.186 What additional information must be included in a
modernization grant application?
222.187 Which year's data must an SEA or LEA provide?
How Grants Are Made
222.188 What priority may the Secretary establish?
222.189 What funding priority does the Secretary give to
applications?
222.190 How does the Secretary rank and select applicants?
222.191 What is the maximum award amount?
222.192 What local funds may be considered as available for this
project?
222.193 What other limitations on grant amounts apply?
222.194 Are ``in-kind'' contributions permissible?
Conditions and Requirements Grantees Must Meet
222.195 How does the Secretary make funds available to grantees?
222.196 What additional construction requirements apply?
Authority: 20 U.S.C. 7701-7714, unless otherwise noted.
General
Sec. 222.170 What is the purpose of the Impact Aid Discretionary
Construction grant program (Section 8007(b) of the Act)?
The Impact Aid Discretionary Construction grant program provides
competitive grants for emergency repairs and modernization of school
facilities to certain eligible local educational agencies (LEAs) that
receive Impact Aid funds.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.171 In general, what LEAs may be eligible for Discretionary
Construction grants?
(a) Applications for these grants are considered in four funding
priority categories. Complete information about the specific
requirements for each priority is detailed in Secs. 222.177 through
222.182.
(b)(1) Generally, to be eligible for an emergency construction
grant, an LEA must--
(i) Enroll a high proportion (at least 40 percent) of federally
connected children in average daily attendance (ADA) who reside on
Indian lands or who reside on Federal property and have a parent on
active duty in the U.S. uniformed services;
(ii) Have a school that enrolls a high proportion of one of these
types of students;
(iii) Be eligible for funding for heavily impacted LEAs under
section 8003(b)(2) of the Act; or
(iv) Meet specific numeric requirements regarding bonding capacity.
(2) The Secretary must also consider such factors as an LEA's total
assessed value of real property that may be taxed for school purposes,
its availability and use of bonding capacity, and the nature and
severity of the emergency.
(c)(1) Generally, to be eligible for a modernization construction
grant, an LEA must--
(i) Be eligible for Impact Aid funding under either section 8002 or
8003 of the Act;
(ii) Be eligible for funding for heavily impacted LEAs under
section 8003(b)(2) of the Act;
(iii) Enroll a high proportion (at least 40 percent) of federally
connected children in ADA who reside on Indian lands or who reside on
Federal property
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and have a parent on active duty in the U.S. uniformed services;
(iv) Have a school that enrolls a high proportion of one of these
types of students;
(v) Meet specific numeric requirements regarding bonding capacity;
or
(vi) Be eligible for funding under section 8002 of the Act
(payments for Federal property).
(2) The Secretary must also consider such factors as an LEA's total
assessed value of real property that may be taxed for school purposes,
its availability and use of bonding capacity, and the nature and
severity of its need for modernization funds.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.172 What activities may an LEA conduct with funds received
under this program?
(a) Except as provided in paragraph (c) of this section, an LEA may
use emergency grant funds received under this program only to repair,
renovate, or alter a public elementary or secondary school facility
used for free public education to ensure the health, safety, and well-
being of students and personnel.
(b) Except as provided in paragraph (c) of this section, an LEA may
use modernization grant funds received under this program only to
repair, renovate, alter, or extend a public elementary or secondary
school facility used for free public education to provide school
facilities that support a contemporary educational program for the
LEA's students at normal capacity, and in accordance with the laws,
standards, or common practices in the LEA's State.
(c)(1) An emergency or modernization grant under this program may
be used for the construction of a new school facility but only if the
Secretary determines--
(i) That the LEA holds title to the existing facility for which
funding is requested; and
(ii) In consultation with a grantee, that partial or complete
replacement of the facility would be less expensive or more cost-
effective than improving the existing facility.
(2) When construction of school facilities is permitted, emergency
and modernization funds may be used for new school facilities that are
used for free public education. This may include the--
(i) Construction of instructional, resource, food service, and
general or administrative support areas, so long as they are a part of
the instructional facility; and
(ii) Purchase of initial equipment, machinery, and initial utility
connections.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.173 What activities are prohibited?
The Secretary does not fund the following activities under this
grant:
(a) Improvements on facilities for which the LEA does not have full
title or other interest.
(b) Repair, renovation, alteration or construction for stadiums or
other facilities that are primarily used for athletic contests,
exhibitions, and other events for which admission is charged to the
general public.
(c) Except in the limited circumstances as provided in
Sec. 222.172(c), when new construction is permissible, acquisition of
any interest in real property.
(d) Maintenance costs associated with any of an LEA's school
facilities.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.174 What other prohibitions apply to these funds?
Grant funds under this program may not be used to supplant or
replace other available non-Federal construction money. These grant
funds may be used for emergency or modernization activities only to the
extent that they supplement the amount of construction funds that
would, in the absence of these grant funds, be available to a grantee
from non-Federal funds for these purposes. Examples follow:
Example 1. ``Supplanting'': An LEA signs a contract for a
$300,000 roof replacement and plans to use its capital expenditure
fund to pay for the renovation. Since the LEA already has non-
Federal funds available for the roof project, it may not now use a
grant from this program to pay for the project or replace its own
funds in order to conserve its capital fund.
Example 2. ``Non-supplanting'': The LEA above that has the
$300,000 roof commitment has also received a $400,000 estimate for
the replacement of its facility's heating, ventilation, and air
conditioning (HVAC) system. The LEA has not made any commitments for
the HVAC system because it has no remaining funds available to pay
for that work. Since other funds are not available, it would not be
supplanting if the LEA received an emergency grant under this
program to pay for the HVAC system.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.175 What regulations apply to recipients of funds under this
program?
The following regulations apply to the Impact Aid Discretionary
Construction program:
(a) The Education Department General Administrative Regulations
(EDGAR) as follows:
(1) 34 CFR part 75 (Direct Grant Programs) except for 34 CFR 75.600
through 75.617.
(2) 34 CFR part 77 (Definitions that Apply to Department
Regulations).
(3) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(4) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments).
(5) 34 CFR part 81 (General Education Provisions Act--Enforcement).
(6) 34 CFR part 82 (New Restrictions on Lobbying).
(7) 34 CFR part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free
Workplace (Grants)).
(b) The regulations in 34 CFR part 222, including subpart L.
(Authority: 20 U.S.C. 1221e-3)
Sec. 222.176 What definitions apply to this program?
(a) In addition to the terms referenced in 34 CFR Sec. 222.2, the
following definitions apply to this subpart:
Bond limit means the cap or limit that a State may impose on an
LEA's capacity for bonded indebtedness. For applicants in States that
place no limit on an LEA's capacity for bonded indebtedness, the
Secretary shall consider the LEA's bond limit to be ten percent of its
total assessed valuation.
Construction means:
(1) Preparing drawings and specifications for school facilities;
(2) Repairing, renovating, or altering school facilities;
(3) Extending school facilities as described in Sec. 222.172(b);
(4) Erecting or building school facilities, as described in
222.172(c); and
(5) Inspections or supervision related to school facilities
projects.
Emergency means a school facility condition that is so injurious or
hazardous that it either poses an immediate threat to the health and
safety of the facility's students and staff or can be reasonably
expected to pose such a threat in the near future. These conditions can
include the need to repair, replace, or install: a roof; electrical
wiring; a plumbing or sewage system; or heating, ventilation, or air
conditioning; or to bring a school facility into compliance with fire
and safety codes.
Level of bonded indebtedness means the amount of long-term debt
issued by an LEA divided by the LEA's bonding capacity.
Minimal capacity to issue bonds means that the total assessed value
of
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real property in an LEA that may be taxed for school purposes is at
least $25,000,000 but not more than $50,000,000.
Modernization means the repair, renovation, alteration, or
extension of a public elementary or secondary school facility in order
to support a contemporary educational program for an LEA's students in
normal capacity, and in accordance with the laws, standards or common
practices in the LEA's State.
No practical capacity to issue bonds means that the total assessed
value of real property in an LEA that may be taxed for school purposes
is less than $25,000,000.
Total assessed value per student means the assessed valuation of
real property per pupil (AVPP), unless otherwise defined by an LEA's
State.
(Authority: 20 U.S.C. 7707(b))
(b) Definitions in EDGAR. The following terms used in this subpart
are defined or referenced in 34 CFR 77.1:
Applicant
Application
Award
Contract
Department
EDGAR
Equipment
Facilities
Fiscal year
Grant
Grantee
Project
Public
Real property
Recipient
(Authority: 20 U.S.C. 7707(b) and 1221e-3)
Eligibility
Sec. 222.177 What eligibility requirements must an LEA meet to apply
for an emergency grant under the first priority?
An LEA is eligible to apply for an emergency grant under the first
priority of section 8007(b) of the Act if it--
(a) Is eligible to receive formula construction funds for the
fiscal year under section 8007(a) of the Act;
(b)(1) Has no practical capacity to issue bonds;
(2) Has minimal capacity to issue bonds and has used at least
seventy-five percent of its bond limit; or
(3) Is eligible to receive funds for the fiscal year for heavily
impacted districts under section 8003(b)(2) of the Act; and
(c) Has a school facility emergency that the Secretary has
determined poses a health or safety hazard to students and school
personnel.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.178 What eligibility requirements must an LEA meet to apply
for an emergency grant under the second priority?
Except as provided in Sec. 222.179, an LEA is eligible to apply for
an emergency grant under the second priority of section 8007(b) of the
Act if it--
(a) Is eligible to receive funds for the fiscal year under section
8003(b) of the Act;
(b)(1) Has federally connected children living on Indian lands
equal to at least 40 percent of the total number of children in average
daily attendance (ADA) in its schools; or
(2) Has federally connected children with a parent in the U.S.
uniformed services equal to at least 40 percent of the total number of
children in ADA in its schools;
(c) Has used at least seventy-five percent of its bond limit;
(d) Has an average per student assessed value of real property
taxable for school purposes that is below its State average; and
(e) Has a school facility emergency that the Secretary has
determined is a health or safety hazard to students and school
personnel.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.179 Under what circumstances may an ineligible LEA apply on
behalf of a school for an emergency grant under the second priority?
An LEA that is eligible to receive section 8003(b) assistance for
the fiscal year but that does not meet the other eligibility criteria
described in Sec. 222.178(a) or (b) may apply on behalf of a school
located within its geographic boundaries for an emergency grant under
the second priority of section 8007(b) of the Act if--
(a) The school--
(1) Has children living on Indian lands equal to at least 40
percent of the total number of children in ADA; or
(2) Has children with a parent in the U.S. uniformed services equal
to at least 40 percent of the total number of children in ADA;
(b) The school has a school facility emergency that the Secretary
has determined is a health or safety hazard to students and school
personnel;
(c) The LEA has used at least 75 percent of its bond limit; and
(d) The LEA has an average per-student assessed value of real
property that may be taxed for school purposes that is below its State
average.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.180 What eligibility requirements must an LEA meet to apply
for a modernization grant under the third priority?
An LEA is eligible to apply for a modernization grant under the
third priority of section 8007(b) of the Act if it--
(a) Is eligible to receive funds for the fiscal year under section
8002 or 8003(b) of the Act;
(b)(1) Has no practical capacity to issue bonds;
(2) Has minimal capacity to issue bonds and has used at least 75
percent of its bond limit; or
(3) Is eligible to receive funds for the fiscal year for heavily
impacted districts under section 8003(b)(2) of the Act, and
(c) Has facility needs resulting from the presence of the Federal
Government, such as the enrollment of federally connected children, the
presence of Federal property, or an increase in enrollment due to
expanded Federal activities, housing privatization, or the acquisition
of Federal property.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.181 What eligibility requirements must an LEA meet to apply
for a modernization grant under the fourth priority?
An LEA is eligible to apply for a modernization grant under the
fourth priority of section 8007(b) of the Act if it--
(a)(1) Is eligible to receive funds for the fiscal year under
section 8003(b) of the Act; and
(i) Has children living on Indian lands equal to at least 40
percent of the total number of children in ADA in its schools; or
(ii) Has children with a parent in the U.S. uniformed services
equal to at least 40 percent of the total number of children in ADA in
its schools; or
(2) Is eligible to receive assistance for the fiscal year under
section 8002 of the Act;
(b) Has used at least 75 percent of its bond limit;
(c) Has an average per-student assessed value of real property that
may be taxed for school purposes that is below its State average; and
(d) Has facility needs resulting from the presence of the Federal
Government, such as the enrollment of federally connected children, the
presence of Federal property, or an increase in enrollment due to
expanded Federal activities, housing privatization, or the acquisition
of Federal property.
(Authority: 20 U.S.C. 7707(b))
[[Page 53685]]
Sec. 222.182 Under what circumstances may an ineligible LEA apply on
behalf of a school for a modernization grant under the fourth priority?
An LEA that is eligible to receive a payment under Title VIII for
the fiscal year but that does not meet the other eligibility criteria
described in Sec. 222.181 may apply on behalf of a school located
within its geographic boundaries for a modernization grant under the
fourth priority of section 8007(b) of the Act if--
(a) The school--
(1)Has children living on Indian lands equal to at least 40 percent
of the total number of children in ADA; or
(2) Has children with a parent in the U.S. uniformed services equal
to at least 40 percent of the total number of children in ADA;
(b) The LEA has used at least 75 percent of its bond limit;
(c) The LEA has an average per-student assessed value of real
property taxable for school purposes that is below its State average;
and
(d) The school has facility needs resulting from the presence of
the Federal Government, such as the enrollment of federally connected
children, the presence of Federal property, or an increase in
enrollment due to expanded Federal activities, housing privatization,
or the acquisition of Federal property.
(Authority: 20 U.S.C. 7707(b))
How To Apply for a Grant
Sec. 222.183 How does an LEA apply for a grant?
(a) To apply for funds under this program, an LEA may submit more
than one application in a fiscal year. Examples follow:
Example 1: An LEA would submit two applications if it wants to
receive both an emergency and a modernization grant for one
particular school facility.
Example 2: If an LEA has five schools and seeks emergency grants
to replace a roof and a boiler in one school and to replace windows
in a second school, it should submit two applications'one for each
of the two school facilities that the LEA wants to renovate.
(b) An application must--
(1) Contain the information required in Secs. 222.184 through
222.186, as applicable, and in a Federal Register closing date notice
that the Secretary will publish; and
(2) Be timely filed in accordance with the provisions of the
Secretary's published closing date notice.
(Approved by the Office of Management and Budget under control
number 1810-0657)
(Authority: 20 U.S.C. 7707(b))
Sec. 222.184 What information must an application contain?
An application for an emergency or modernization grant must contain
the following:
(a) The name of the school facility the LEA is proposing to repair,
construct, or modernize.
(b)(1) For an applicant under section 8003(b) of the Act, the
number of federally connected children described in section 8003(a)(1)
enrolled in the school facility for which the LEA is seeking a grant;
or
(2) For an applicant under section 8002 of the Act, the total
enrollment (based on the fall State count date) for the preceding year
in the LEA and in the school facility for which the LEA is seeking a
grant.
(c) An identification of the LEA's interest in, or authority over,
the school facility involved, such as an ownership interest or a lease
arrangement.
(d) The original construction date of the school facility that the
LEA proposes to renovate or modernize.
(e) The dates of any major renovations of that school facility and
the areas of the school covered by the renovations.
(f) The proportion of Federal acreage within the LEA.
(g) Fiscal data including the LEA's--
(1) Maximum bonding capacity;
(2) Amount of bonded debt;
(3) Total assessed value of real property for school purposes;
(4) State average assessed value per pupil of real property that
was taxed for school purposes;
(5) Local real property tax levy, in mills or dollars, that was
used for capital expenditures; and
(6) Sources of funds available for the proposed project.
(h) A description of the need for funds and the proposed project
for which a grant under this subpart would be used, including a cost
estimate for the project.
(i) Applicable assurances and certifications identified in the
approved grant application package.
(Approved by the Office of Management and Budget under control
number 1810-0657)
(Authority: 20 U.S.C. 7707(b))
Sec. 222.185 What additional information must be included in an
emergency grant application?
In addition to the information specified in Sec. 222.184, an
application for an emergency grant must contain the following:
(a)A description of the deficiency that poses a health or safety
hazard to occupants of the facility.
(b) A description of how the deficiency adversely affects the
occupants and how it will be repaired.
(c)(1) A statement signed by an appropriate local official, as
defined below, that the deficiency threatens the health and safety of
occupants of the facility or prevents the use of the facility.
(2) An appropriate local official may include a fire marshal, city
zoning official, State building inspector, military installation
official, Indian Health Service official, contractor, or other
individual who is responsible for inspecting school facilities and
identifying the health and safety deficiencies. An appropriate local
official may not include a staff person or other individual associated
with an applicant LEA.
(Approved by the Office of Management and Budget under control
number 1810-0657)
(Authority: 20 U.S.C. 7707(b))
Sec. 222.186 What additional information must be included in a
modernization grant application?
In addition to the information specified in Sec. 222.184, an
application for a modernization grant must contain a description of--
(a) The need for modernization; and
(b) How the applicant will use funds received under this program to
address it.
(Approved by the Office of Management and Budget under control
number 1810-0657)
(Authority: 20 U.S.C. 7707(b))
Sec. 222.187 Which year's data must an SEA or LEA provide?
(a) Except as provided in paragraph (b) of this section, the
Secretary will determine eligibility under this discretionary grant
program based on student and fiscal data for each local educational
agency from the fiscal year preceding the fiscal year for which the
applicant is applying for funds.
(b) If satisfactory fiscal data are not available from the
preceding fiscal year, the Secretary will use data from the most recent
fiscal year for which data that are satisfactory to the Secretary are
available.
How Grants Are Made
Sec. 222.188 What priority may the Secretary establish?
In any given year, the Secretary may assign extra weight for
certain systems or emergency and modernization conditions by
identifying the systems or conditions and their assigned weights in a
notice published in the Federal Register.
(Authority: 20 U.S.C. 7707(b))
[[Page 53686]]
Sec. 222.189 What funding priority does the Secretary give to
applications?
(a) Except as provided in paragraph (b) of this section, the
Secretary gives funding priority to applications in the following
order:
(1) First priority is given to applications described under
Sec. 222.177 and, among those applicants for emergency grants, priority
is given to applications based on a rank order of the application
quality factors referenced in Sec. 222.190, including the severity of
the emergency.
(2) After all eligible first-priority applications are funded,
second priority is given to applications described under Secs. 222.178
and 222.179 and, among those applicants for emergency grants, priority
is given to applications based on a rank order of the application
quality factors referenced in Sec. 222.190, including the severity of
the emergency.
(3) Third priority is given to applications described under
Sec. 222.180 and, among those applicants for modernization grants,
priority is given to applications based on a rank order of the
application quality factors referenced in Sec. 222.190, including the
severity of the need for modernization.
(4) Fourth priority is given to applications described under
Secs. 222.181 and 222.182 and, among those applicants for modernization
grants, priority is given to applications based on a rank order of the
application quality factors referenced in Sec. 222.190, including the
severity of the need for modernization.
(b)(1) The Secretary makes awards in each priority described above
until the Secretary is unable to make an approvable award in that
priority.
(2) If the Secretary is unable to fund a full project or a viable
portion of a project, the Secretary may continue to fund down the list
of high-ranking applicants within a priority.
(3) The Secretary applies any remaining funds to awards in the next
priority.
(4) If an applicant does not receive an emergency or modernization
grant in a fiscal year, the Secretary will, subject to the availability
of funds and to the priority and award criteria, consider that
application in the following year along with the next fiscal year's
pool of applications. An example follows:
Example: The first five applicants in priority one have been
funded. Three hundred thousand dollars remain available. Three
unfunded applications remain in that priority. Application
6 requires a minimum of $500,000, application 7
requires $400,000, and application 8 requires $300,000 for
a new roof and $150,000 for related wall and ceiling repairs.
Applicant 8 agrees to accept the remaining $300,000 since
the roof upgrade can be separated into a viable portion of applicant
8's total project. Applications 6 and 7
will be retained for consideration in the next fiscal year and will
compete again with that fiscal year's pool of applicants. Applicant
8 will have to submit a new application if it wishes to be
considered for the unfunded portion of the current year's
application.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.190 How does the Secretary rank and select applicants?
(a) To the extent consistent with these regulations and section
8007(b) of the Act, the Secretary will follow grant selection
procedures that are specified in 34 CFR Secs. 75.215 through 75.222. In
general these procedures are based on the authorizing statute, the
selection criteria, and any priorities or other applicable requirements
that have been published in the Federal Register.
(b) In the event of ties in numeric ranking, the Secretary may
consider as tie-breaking factors: the severity of the emergency or the
need for modernization; for applicants under section 8003 of the Act,
the numbers of federally connected children who will benefit from the
project; or for applicants under section 8002 of the Act, the numbers
of children who will benefit from the project; the assessed valuation
of real property per student compared to the LEA's State average; and
available resources or non-Federal funds available for the grant
project.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.191 What is the maximum award amount?
(a) Subject to any applicable contribution requirements as
described in Secs. 222.192 and 222.193, the procedures in Secs. 75.231
through 75.236, and the provisions in paragraph (b) of this section,
the Secretary may fund up to 100 percent of the allowable costs in an
approved grantee's proposed project.
(b) An award amount may not exceed the difference between--
(1) The cost of the proposed project; and
(2) The amount the grantee has available or will have available for
this purpose from other sources, including local, state, and other
Federal funds.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.192 What local funds may be considered as available for this
project?
To determine the amount of local funds that an LEA has available
under Sec. 222.191(b)(2) for a project under this program, the
Secretary will consider as available all LEA funds that may be used for
capital expenditures except $100,000 or ten percent of the average
annual capital expenditures of the applicant for three previous fiscal
years, whichever is greater.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.193 What other limitations on grant amounts apply?
(a) Except as provided in paragraph (b) of this section and
Sec. 222.191, the amount of funds provided under an emergency grant or
a modernization grant awarded under this subsection to an eligible LEA
is subject to the following limitations:
(1) The award amount may not be more than 50 percent of the total
cost of an approved project.
(2) The total amount of grant funds may not exceed four million
dollars during any four-year period. An example follows:
Example: An LEA that is awarded $4 million dollars in the first
year may not receive any additional funds for the following three
years.
(b) Emergency or modernization grants to LEAs with no practical
capacity to issue bonds as defined in Sec. 222.176 are not subject to
the award limitations described in paragraph (a) of this section.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.194 Are ``in-kind'' contributions permissible?
(a) LEAs that are subject to the applicable matching requirement
described in Sec. 222.193(a) may use allowable third party in-kind
contributions as defined below to meet the requirements.
(b) Third party in-kind contributions mean property or services
that benefit this grant program and are contributed by non-Federal
third parties without charge to the grantee or a cost-type contractor
under the grant agreement.
(c) The provisions of 34 CFR 80.24 govern the allowability and
valuation of in-kind contributions, except that it is permissible for a
third party to contribute real property to a grantee for a project
under this program, so long as no Federal funds are spent for the
acquisition of real property.
(Authority: 20 U.S.C. 7707(b))
Conditions and Requirements Grantees Must Meet
Sec. 222.195 How does the Secretary make funds available to grantees?
The Secretary makes funds available to a grantee during a project
period using the following procedure:
(a) Upon final approval of the grant proposal, the Secretary makes
available 10 percent of the total award amount to the grantee.
[[Page 53687]]
(b) After the grantee submits a copy of the emergency or
modernization contract approved by the grantee's governing board, the
Secretary makes available 80 percent of the total award amount to a
grantee.
(c) The Secretary makes available up to the remaining 10 percent of
the total award amount to the grantee after the grantee submits a
statement that--
(1) Details any earnings, savings, or interest;
(2) Certifies that--
(i) The project is fully completed; and
(ii) All the awarded funds have been spent for grant purposes; and
(3) Is signed by the--
(i) Chairperson of the governing board;
(ii) Superintendent of schools; and
(iii) Architect of the project.
(Authority: 20 U.S.C. 7707(b))
Sec. 222.196 What additional construction requirements apply?
(a) Except as provided in paragraph (b) of this section, a grantee
under this program must comply with--
(1) The general construction legal requirements identified in the
grant application assurances;
(2) The prevailing wage standards in the grantee's locality that
are established by the Secretary of Labor in accordance with the Davis-
Bacon Act (40 USCA 276a, et seq.); and
(3) All relevant Federal, state, and local environmental laws and
regulations.
(b) A grantee that qualifies for a grant because it enrolls a high
proportion of federally connected children who reside on Indian lands
is considered to receive a grant award primarily for the benefit of
Indians and must therefore comply with the Indian preference
requirements of section 7(b) of the Indian Self-Determination Act.
(Authority: 20 U.S.C. 7707(b) and 1221e-3)
[FR Doc. 02-20651 Filed 8-15-02; 8:45 am]
BILLING CODE 4000-01-P