[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Proposed Rules]
[Pages 15694-15696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8252]



[[Page 15693]]

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Part V





Department of Education





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34 CFR Part 200



Title I--Helping Disadvantaged Children Meet High Standards; Proposed 
Rule

  Federal Register / Vol. 63, No. 61 / Tuesday, March 31, 1998 / 
Proposed Rules  

[[Page 15694]]



DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810--AA89


Title I--Helping Disadvantaged Children Meet High Standards

AGENCY: Department of Education.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The U. S. Secretary of Education (Secretary) proposes to amend 
the regulations implementing programs under Title I of the Elementary 
and Secondary Education Act (ESEA) of 1965, as amended by the Improving 
America's Schools Act of 1994. These proposed amendments would provide 
additional flexibility to local educational agencies (LEAs) operating 
Title I programs.

DATES: Written comments must be received on or before June 1, 1998.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to Mary Jean LeTendre, Director, Compensatory Education 
Programs, Office of Elementary and Secondary Education, U.S. Department 
of Education, 600 Independence Avenue, SW, Portals Building, room 4400, 
Washington, DC 20202-6132.
    Comments may also be sent through the Internet: comments Title 
[email protected].

FOR FURTHER INFORMATION CONTACT: Wendy Jo New, Compensatory Education 
Programs, Office of Elementary and Secondary Education, U.S. Department 
of Education, 600 Independence Avenue, SW., Portals Building, room 
4400, Washington, DC 20202-6132. Telephone: (202)260-0982. Individuals 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Services (FIRS) at 1-800-877-8339 between 8 
a.m. and 8 p.m., Eastern time, Monday through Friday.
    Individuals with disabilities may obtain this document in an 
alternate format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION: On July 3, 1995, the Secretary published 
final regulations under Title I of the Elementary and Secondary 
Education Act of 1965, as amended by the Improving America's Schools 
Act. The following are the specific provisions for which the Secretary 
is proposing regulatory amendments.

Schoolwide Programs and the Individuals With Disabilities Education 
Act

    Under Sec. 1114 of Title I, Title I schoolwide program schools may 
combine funds from most other Federal education programs in their 
schoolwide programs. If they do, the schools are exempt from most of 
the statutory and regulatory provisions of these programs as long as 
they meet the intent and purposes of the programs. Section 1114 
specifically prohibits an exemption for programs under the Individuals 
with Disabilities Education Act (IDEA). The recent reauthorization of 
the IDEA, however, provides additional flexibility regarding IDEA 
funds. It allows a percentage of the Part B IDEA funds received by an 
LEA to be combined with other Federal, State, and local education funds 
to carry out any activities in a schoolwide program. However, it does 
not exempt a schoolwide program school from meeting the other 
requirements of IDEA. In other words, a schoolwide program school 
combining IDEA funds must comply with all other requirements of IDEA to 
the same extent it would if it did not combine IDEA funds in its 
schoolwide program. In addition, LEAs and SEAs are not relieved of 
their obligations under IDEA to ensure that children with disabilities 
in schoolwide program schools have all of the rights they would have if 
they were in a non-schoolwide school.

No-wide Variance

    Under prior legislation and regulations, LEAs had the discretion, 
in selecting school attendance areas or schools to receive Chapter 1 
(Title I's predecessor) funding, to designate as eligible and serve all 
attendance areas and schools within a grade span grouping or in the 
entire LEA if all attendance areas and schools fell within a range that 
was no more than 5 percentage points above and 5 percentage points 
below the grade span or LEA poverty average. This option, referred to 
as the ``no-wide variance'' provision, recognized that in LEAs with a 
uniform distribution of children from low-income families, making a 
selection of only those areas or schools above the districtwide average 
of poverty has a less meaningful distinction than in other LEAs. The 
Title I statute does not contain this option. However, upon reflection, 
the Secretary has decided to propose reinstituting this flexibility 
through regulations because it makes little educational sense to 
differentiate among areas or schools that fall within a close span of 
poverty. Therefore, the Secretary proposes to amend Sec. 200.28 to 
include a ``no-wide variance'' provision. Under the proposed 
regulations, an LEA may designate as eligible and serve all areas and 
schools within a grade span or the entire LEA if the poverty rates of 
all areas and schools do not vary more than 10 percentage points.

Alteration or Renovation

    Section 76.533 of the Education Department General Administrative 
Regulations prohibits a State or subgrantee from using its grant for 
construction or acquisition of real property unless specifically 
permitted by the authorizing statute or implementing regulations for 
the program. Although construction and acquisition of real property 
were previously authorized by statute under Chapter 1 of Title I of the 
ESEA, they are not specifically authorized now, and thus are prohibited 
under Sec. 76.533. Yet, the Secretary has been made aware of situations 
where the prohibition against construction, which was defined under 
previous law to include alteration and remodeling of real property, has 
constrained LEAs from providing cost effective Title I services. For 
example, an LEA was offered a building to house a Title I preschool 
program because existing facilities were inadequate. Because of the 
renovation necessary to make the donated building meet the 
architectural guidelines for serving young children and the lack of 
local funding to make such renovations, the LEA could not accept the 
donation. A similar situation occurred in another LEA that was donated 
a building for a Title I parent resource center. The Even Start Family 
Literacy Program has experienced similar situations, where donated 
facilities did not meet architectural guidelines for serving young 
children. The Secretary is proposing to allow, through regulations, the 
authority to alter or remodel real property if such alteration or 
remodeling is reasonable and necessary to carry out a Title I program.

Exclusion From Supplement, Not Supplant and Comparability 
Determinations

    The Omnibus Consolidated Rescissions and Appropriations Act of 1996 
(Pub. L. 104-134) amended section 1120A of Title I to allow a State or 
LEA to exclude supplemental State and local funds that are expended in 
any school attendance area or school from both supplement, not supplant 
and comparability determinations under Parts A and C, as long as the 
supplemental State and local expenditures are for programs that meet 
the intent and purposes of Part A.

[[Page 15695]]

Section 200.63(c)(1) of these proposed regulations would implement this 
provision and clarify the characteristics of State and local programs 
that would enable them to meet the intent and purposes of Part A.

Executive Order 12866

1. Assessment of Costs and Benefits

    These proposed regulations have been reviewed in accordance with 
Executive Order 12866. Under the terms of the order, the Secretary has 
assessed the potential costs and benefits of this regulatory action.
    The potential benefits associated with the proposed regulations are 
clear. The proposed regulations would provide additional flexibility 
for SEAs and LEAs to implement their Title I programs. Moreover, the 
potential costs associated with these proposed regulations would be 
minimal; they would result from specific statutory requirements or have 
been determined by the Secretary to be necessary for administering 
Title I programs effectively and efficiently.
    There are no additional burdens specifically associated with 
information collection requirements that were addressed in the Title I 
regulations published on July 3, 1995. The Secretary has also 
determined that this regulatory action does not interfere unduly with 
State and local governments in the exercise of their governmental 
functions.
    To assist the Department in complying with the specific 
requirements of Executive Order 12866, the Secretary invites comments 
on whether there may be further opportunities to reduce any potential 
costs or increase potential benefits resulting from these proposed 
regulations without impeding the effective and efficient administration 
of the program.

2. Clarity of the Regulations

    Executive Order 12866 requires each Federal agency to write 
regulations that are easy to understand.
    The Secretary invites comment on how to make these regulations 
easier to understand, including answers to the following: (1) Are the 
requirements in the regulations clearly stated? (2) Do the regulations 
contain technical terms or other wording that interfere with the 
clarity? (3) Does the format of the regulations (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce their 
clarity? Would the regulations be easier to understand if they were 
divided into more (but shorter) sections? (A ``section'' is preceded by 
the symbol ``Sec. '' and a numbered heading; for example ``Sec. 200.68 
Schoolwide program requirements.'') (4) Is the description of the 
proposed regulations in the ``Supplementary Information'' section of 
this preamble helpful in understanding the proposed regulations? How 
could this description be more helpful in making the proposed 
regulations easier to understand? (5) What else could the Department do 
to make the regulations easier to understand?
    A copy of any comments that concern whether these proposed 
regulations are easy to understand should also be sent to Stanley 
Cohen, Regulations Quality Officer, U.S. Department of Education, 600 
Independence Avenue, SW. (room 5121, FOB-10), Washington, DC 20202-
2241.

Paperwork Reduction Act of 1995

    These proposed regulations have been examined under the Paperwork 
Reduction Act of 1995 and have been found to contain no information 
collection requirements.

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 proposed 
regulations are small LEAs, institutions of higher education, and 
public or nonprofit private agencies receiving Federal funds under the 
Title I programs. The proposed regulations would not have a significant 
economic impact on the small entities affected because the proposed 
regulations would not impose excessive regulatory burden or require 
unnecessary Federal supervision. The proposed regulations would impose 
minimal requirements to ensure the proper expenditure of program funds.

Invitation to Comment

    Interested persons are invited to submit comments and 
recommendations regarding these proposed regulations. All comments 
submitted in response to these proposed regulations will be available 
for public inspection, during and after the comment period, in room 
4400, Portals Building, 1250 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.
    On request the Department supplies 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 docket for these proposed regulations. An individual with a 
disability who wants to schedule an appointment for this type of aid 
may call (202)205-8113 or (202)260-9895. An individual who uses a TDD 
may call the Federal Information Relay Service at 1-800-877-8339 
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
    To assist the Department in complying with the specific requirement 
of Executive Order 12866 and its overall requirement of reducing 
regulatory burden, the Secretary invites comments on whether there may 
be further opportunities to reduce any regulatory burdens found in 
these proposed regulations.

Electronic Access to This Document

    Anyone may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or 
portable document format (pdf) on the World Wide Web at either of the 
following sites:

http://ocfo.ed.gov/fedreg.html
http://www.ed.gov/news.html

To use the pdf you must have the Adobe Acrobat Reader Program with 
Search, which is available free at either of the previous sites. If you 
have questions about using the pdf, call the U.S. Government Printing 
Office toll free at 1-888-293-6498.
    Anyone may also view these documents in text copy only on an 
electronic bulletin board of the Department. Telephone: (202) 219-1511 
or, toll free, 1-800-222-4922. The documents are located under Option 
G--Files/Announcements, Bulletins and Press Releases.

    Note: The official version of this document is the document 
published in the Federal Register.

List of Subjects in 34 CFR Part 200

    Administrative practice and procedure, Adult education, Children, 
Coordination, Education, Education of disadvantaged children, Education 
of individuals with disabilities, Elementary and secondary education, 
Eligibility, Family, Family-centered education, Grant programs--
education, Indians--education, Institutions of higher education, 
Interstate coordination, Intrastate coordination, Juvenile delinquency, 
Local educational agencies, Migratory children, Migratory workers, 
Neglected, Nonprofit private agencies, Private schools, Public 
agencies, Reporting and recordkeeping requirements, State-administered 
programs, State educational agencies, Subgrants.


[[Page 15696]]


    Dated: March 24, 1998.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Numbers: 84:010, Improving 
Programs Operated by Local Educational Agencies: 84.011, Migrant 
Education Basic State Formula Grant Programs; 84.013, Prevention and 
Intervention Programs for Children and Youth Who Are Neglected, 
Delinquent, or At-Risk of Dropping Out; 84.144, Migrant Education 
Coordination Program; 84.213, Even Start Family Literacy Program)

    The Secretary proposes to amend part 200 of Title 34 of the Code of 
Federal Regulations as follows:

PART 200--TITLE I--HELPING DISADVANTAGED CHILDREN MEET HIGH 
STANDARDS

    2. The authority citation for part 200 continues to read as 
follows:

    Authority: 20 U.S.C. 6301-6514, unless otherwise noted.

    3. In Sec. 200.8, paragraph (c)(1) is revised and paragraph 
(c)(3)(ii)(B)(3) is added to read as follows:


Sec. 200.8  Schoolwide program requirements.

* * * * *
    (c) Availability of other Federal funds. (1) In addition to funds 
under this subpart, a school may use in its schoolwide program Federal 
funds under any program administered by the Secretary that is included 
in the most recent notice published by the Secretary in the Federal 
Register or is addressed in paragraph (c)(3) (ii)(B)(3) of this 
section.
* * * * *
    (3) * * *
    (ii) * * *
    (B) * * *
    (3) Special Education. (i) A school may combine funds received 
under Part B of the Individuals with Disabilities Education Act (IDEA) 
in a schoolwide program, except that the amount so used in any 
schoolwide program may not exceed the amount received by the LEA under 
Part B of IDEA for that fiscal year; divided by the number of children 
with disabilities in the jurisdiction of the LEA; and multiplied by the 
number of children with disabilities participating in the schoolwide 
program.
    (ii) A school may also combine funds received under section 8003(d) 
of the Act (Impact Aid funds for children with disabilities) in a 
schoolwide program.
    (iii) A school that combines funds under Part B of IDEA or section 
8003(d) of the Act in its schoolwide program may use those funds for 
any activities under its schoolwide program plan but shall comply with 
all other requirements of Part B of IDEA to the same extent it would if 
it did not combine funds under Part B of IDEA or section 8003(d) of the 
Act in its schoolwide program.
* * * * *
    4. Section 200.28 is amended by removing paragraph (a)(2)(iii) and 
adding a new paragraph (a)(4) to read as follows:


Sec. 200.28  Allocation of funds to school attendance areas and 
schools.

    (a) * * *
    (4) An LEA may designate as eligible and serve all school 
attendance areas or schools within a grade span grouping or within the 
entire LEA if within the grade span or LEA, as applicable, the 
variation between the percentage of children from low-income families 
in the attendance area or school with the highest concentration of such 
children and the percentage of children from low-income families in the 
attendance area or school with the lowest concentration of such 
children does not exceed 10 percentage points.
* * * * *
    5. Section 200.62 is added to read as follows.


Sec. 200.62  Use of funds for construction of real property.

    (a) Title I funds may be used to construct real property if 
reasonable and necessary to carry out a Title I program.
    (b) The term construction means the alteration or renovation of a 
building, structure, or facility, including--
    (1) The concurrent installation of equipment; and
    (2) The complete or partial replacement of an existing facility, 
but only if such replacement is less expensive and more cost-effective 
than alteration, renovation, or repair of the facility.

(Authority: 20 U.S.C. 6511(a))
    6. Section 200.63 is revised to read as follows:


Sec. 200.63  Exclusion of supplemental State and local funds from 
supplement, not supplant and comparability determinations.

    (a) For purposes of determining compliance with the comparability 
requirement in section 1120A(c) and the supplement, not supplant 
requirement in section 1120A(b) of the Act, a grantee or subgrantee 
under parts A or C of Title I may exclude supplemental State and local 
funds spent in any school attendance area or school for programs that 
meet the intent and purposes of Title I.
    (b) A program meets the intent and purposes of Title I if the 
program--
    (1)(i) Is implemented in a school in which the percentage of 
children from low-income families is not less than 50 percent;
    (ii) Is designed to upgrade the entire educational program in the 
school to support students in their achievement toward meeting the 
State's challenging student performance standards;
    (iii) Is designed to meet the educational needs of all children in 
the school, particularly the needs of children who are failing, or most 
at risk of failing, to meet the State's challenging student performance 
standards; and
    (iv) Uses the State's system of assessment to review the 
effectiveness of the program; or
    (2)(i) Serves only children who are failing, or most at risk of 
failing, to meet the State's challenging student performance standards;
    (ii) Provides supplementary services designed to meet the special 
educational needs of the children who are participating to support 
their achievement toward meeting the State's student performance 
standards that all children are expected to meet; and
    (iii) Uses the State's system of assessment to review the 
effectiveness of the program.
    (c) The conditions in paragraph (b) of this section also apply to 
supplemental State and local funds expended under sections 
1113(b)(1)(C) and 1113(c)(2)(B) of the Act.

(Authority: 20 U.S.C. 6322(d))

[FR Doc. 98-8252 Filed 3-30-98; 8:45 am]
BILLING CODE 4000-01-P