[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41694-41698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16668]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2013-OESE-0062; CFDA Number: 84.215T]


Final Priority and Requirements; Education Facilities 
Clearinghouse

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final priority and requirements.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
announces a priority and requirements under the Education Facilities 
Clearinghouse (EFC) program and may use one or more of the priority and 
requirements for competitions in fiscal year (FY) 2013 and later years. 
Through this action, we intend to support the collection and 
dissemination of best practices for the planning, design, financing, 
procurement, construction, improvement, operation, and maintenance of 
safe, healthy, and high-performing elementary and secondary education 
facilities. Specifically, this priority and requirements will support 
the establishment of a clearinghouse to help stakeholders recognize the 
linkages between the school facility and three areas: Academic 
instruction, student and community well-being, and school fiscal 
health.

DATES: Effective Date: These priority and requirements are effective 
August 12, 2013.

FOR FURTHER INFORMATION CONTACT: Pat Rattler, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3E254, Washington, DC 20202. 
Telephone: (202) 453-6718 or by email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: The purpose of the Education Facilities 
Clearinghouse program is to provide technical assistance and training 
on the planning, design, financing, procurement, construction, 
improvement, operation, and maintenance of safe, healthy, and high-
performing elementary and secondary education facilities.

    Program Authority:  20 U.S.C. 7131; 7243-7243b.

    We published a notice of proposed priority and requirements in the 
Federal Register on May 9, 2013 (78 FR 27129). That notice contained 
background information and our reasons for proposing the particular 
priority and requirements.
    Public Comment: In response to our invitation in the notice of 
proposed priority and requirements, four parties submitted comments on 
the proposed priority and requirements. We group major issues according 
to subject. Generally, we do not address technical and other minor 
changes.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priority and requirements since publication of 
the notice of proposed priority and requirements follows.
    Comment: One commenter expressed concerns about whether the 
initiatives proposed in the priority and requirements could be 
maintained or

[[Page 41695]]

lead to change on a long-term basis. The commenter also suggested that 
other variables affecting student achievement, such as inequality of 
funding or the effect of the community on the school, should be 
addressed in the priority and requirements.
    Discussion: We believe that the proposal to award a grant under 
this program for multiple years will help sustain the effort to support 
the collection and dissemination of best practices for the planning, 
design, financing, procurement, construction, improvement, operation, 
and maintenance of safe, healthy, and high-performing elementary and 
secondary education facilities. By providing support to help increase 
the capacity of States and local educational agencies (LEAs), the 
priority will help support long-term change in these specific areas by 
increasing the knowledge and skills that education providers have to 
support effective improvements to their facilities. We provide funding 
and support through other programs, such as Title I, Part A of the 
Elementary and Secondary Education Act of 1965, as amended (Title I) to 
help meet the additional needs of disadvantaged students and to support 
parent and community engagement. For example, Title I targets more than 
$13.7 billion in resources to LEAs and schools with high numbers or 
percentages of children from low-income families to provide additional 
services that improve the teaching and learning of educationally at-
risk children to help ensure they meet State academic standards. In 
order to receive Title I funds, LEAs are required under ESEA to ensure 
that their Title I schools, which tend to be those with the highest 
poverty levels, receive resources from local and State sources that are 
comparable to those received by non-Title I schools.
    Changes: None.
    Comment: Several commenters recommended we specify in the notice of 
final priority and requirements the designations of the priority as 
absolute, competitive preference, or invitational.
    Discussion: We appreciate these recommendations and have considered 
them in developing the notice inviting applications for the fiscal year 
2013 EFC competition. However, specifying a priority as absolute, 
competitive preference, or invitational in a notice of final priority 
commits the Department to using the priority that way in all future 
competitions. In order to preserve our ability to use this priority as 
needed and to better serve States and LEAs, we are not specifying in 
this notice of final priority and requirements whether the priority is 
absolute, competitive preference, or invitational. We do so in the 
notice inviting applications for the 2013 competition, published 
elsewhere in this issue of the Federal Register.
    Changes: None.
    Comment: One commenter recommended that we add specific 
qualifications that a successful applicant funded under the EFC program 
should have beyond the educational sector, namely expertise in 
recognizing and disseminating information about specific definitions of 
high-performance buildings identified in the Energy Independence and 
Security Act, securing connections to relevant professional societies 
and other key stakeholders, executing a complex outreach and engagement 
program, managing a robust Web site, and influencing decision makers.
    Discussion: We appreciate the importance of the EFC provider having 
expertise in specific areas; however, we decline to require more 
specific qualifications that an applicant must meet in order to be 
eligible for funding. Because the EFC will have to disseminate 
information on a range of facilities topics, we do not want to limit 
specific areas in which the grantee must have knowledge. In addition, 
some of the qualifications recommended by the commenter, namely the 
ability to execute outreach and engagement programs and manage a Web 
site, may be evaluated through selection criteria for this program. 
Finally, the purpose of the EFC is to disseminate information on 
facilities and provide assistance to facilities managers; and 
specifically influencing decision makers is beyond the scope of this 
program.
    Changes: None.
    Comment: One commenter stated that the EFC should provide balanced 
information on best practices for school safety and security and school 
facilities. The commenter emphasized that it is important for school 
staff to be able to make informed choices about school facilities.
    Discussion: In the notice of proposed priority and requirements, we 
included a requirement that an applicant for the EFC grant must have a 
plan to track and compile research and best practices, as well as 
develop resources that support safe, healthy, and high-performing 
school facilities. In addition, this grant will be a cooperative 
agreement, which will allow us to work with the grantee to ensure that 
the resources presented are supported by evidence, comprehensive, and 
balanced. These resources will help support education stakeholders in 
making informed decisions about improvements to school facilities.
    Changes: None.
    Comment: One commenter recommended that we establish an absolute 
priority requiring the grantee to collect and disseminate information 
on Green Schools. The commenter indicated that having an absolute 
priority would help ensure alignment between the ED-Green Ribbon 
Schools program and the EFC program and maximize the use of limited 
resources.
    Discussion: We agree that providing information to support the 
maintenance and creation of Green Schools is important, and we envision 
that Green Building may be one area in which the EFC may provide 
technical assistance, training, and products. However, there are 
numerous organizations that provide information to support the adoption 
of green practices in schools. Since this information is already 
provided by many organizations and because we have limited funds to 
provide support for improving educational facilities, we do not believe 
that including a priority on Green Schools would be the most effective 
use of these funds.
    Changes: None.
    Comment: One commenter recommended that we expand the work of the 
EFC to include both collecting and analyzing data about the state of 
elementary and secondary school facilities and publishing these 
analyses so that they can inform research on the relationship between 
school facilities and school quality.
    Discussion: We understand that there is a need for data to support 
additional research on the effect of school facilities on a number of 
elements related to student learning; however, the central purpose of 
the EFC grant is to provide technical assistance and training on the 
planning, design, financing, procurement, construction, improvement, 
operation, and maintenance of elementary and secondary school 
facilities. Toward this end, the EFC may provide links to appropriate 
collections of this information, or develop briefs summarizing what 
research and statistics currently exist. However, with limited funds, 
we cannot support original data collection and analysis, especially if 
the collection and analysis are duplicative of what currently exists.
    Changes: None.
    Comment: One commenter expressed support for the important balance 
between student safety and creating a learning environment that 
supports trust and collaboration. The commenter recommended that we 
include language to support this balance in the priority.
    Discussion: We appreciate the importance of the EFC provider

[[Page 41696]]

understanding the various aspects of, and the links between, the 
school's physical environment and the creation of a learning 
environment that supports safety and nurtures trust and collaboration. 
We believe that we have included language that supports the balance 
between student safety and creating a learning environment that 
supports trust and collaboration. Specifically, through the priority 
and requirements, we have included specifications that the EFC should 
disseminate research and best practices. We consider facilities that 
serve to keep students secure, while supporting a nurturing 
environment, to be an example of best practice.
    Changes: None.
    Comment: One commenter recommended that the Web site created by the 
EFC should include tools to facilitate interaction between site 
visitors. The commenter specifically recommended using blogs or forums 
to support interaction.
    Discussion: We envision that the Web site created by the EFC 
grantee may support a number of resources and services to encourage 
interaction between site visitors. However, we do not want to be overly 
prescriptive about the specific functions of the Web site, which would 
inhibit applicant flexibility to propose and build a site that fulfills 
the goals of the EFC.
    Changes: None.
    Comment: A few commenters expressed concern over the training 
requirements for the EFC grantee. One commenter recommended that the 
requirement to provide trainings be changed to an invitational priority 
so that the grantee could focus on resource collection and 
dissemination. This commenter also pointed out that an entity that is 
highly skilled at collecting and disseminating information on school 
facilities may not be very skilled at providing technical assistance 
and training. Other commenters stated that by holding only two 
trainings per year, the EFC grantee would not be able to provide 
services to a large number of schools that need assistance with their 
facilities. One commenter recommended that the trainings occur more 
than twice a year, be open to all stakeholders, and include a follow-up 
component to ensure that trainees can effectively implement the 
practices they learned.
    Discussion: We believe that training is an important component of 
the EFC grant because it is essential that the resources collected and 
disseminated by the EFC also have practical application. Providing 
training helps ensure that the resources selected by the EFC support 
the work of school administrators and should be a mandatory component 
of a project. Therefore, we decline to change requirement 3 to an 
invitational priority.
    Although requirement 3 states that the EFC grantee must conduct a 
minimum of two trainings per year, this does not limit the grantee to 
this minimum. With regard to the comment about the training audience, 
we recognize that training could be a very valuable tool for all 
education stakeholders; however, this grant program provides a limited 
amount of funding and likely cannot support training for potentially 
thousands of education stakeholders. We believe that the most effective 
use of resources is to focus training on those individuals in 
leadership positions who can use their training to effect change for a 
large number of schools.
    Finally, while we recognize that follow-up activities would be 
valuable to support the lessons taught at the training sessions, we do 
not want to be too prescriptive about the specific structure of these 
trainings. Detailed requirements for training provided by the EFC will 
be established in the EFC's cooperative agreement with the Department.
    Changes: None.

Final Priority

Establishment of the Clearinghouse

    Establish a Clearinghouse to collect and disseminate research and 
other information on effective practices regarding the planning, 
design, financing, procurement, construction, improvement, operation, 
and maintenance of safe, healthy, and high-performing facilities for 
elementary and secondary schools in order to--
    (a) Help education stakeholders increase their use of education 
facilities to turn around low-performing schools and close academic 
achievement gaps;
    (b) Increase understanding of how education facilities affect 
community health and safety and student achievement;
    (c) Identify potential cost-saving opportunities through 
procurement, energy efficiency, and preventative maintenance;
    (d) Increase the use of education facilities and outdoor spaces as 
instructional tools and community centers (e.g., outdoor classrooms, 
school gardens, school-based health centers); and
    (e) Increase capacity to identify hazards and conduct vulnerability 
assessments, and, through facility design, increase safety against 
hazards, natural disasters, and intruders.
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 Secretary for Elementary and Secondary Education 
announces 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--Establish and Maintain a Web Site

    An applicant must include in its application a plan to establish 
and maintain a dedicated, easily-accessible Web site that will include 
electronic resources (e.g., links to published articles and research) 
about the planning, design, financing, procurement, construction, 
improvement, operation, and maintenance of safe, healthy, and high-
performing facilities for elementary and secondary schools. The Web 
site must be established within 120 days of receipt of the award and 
must be maintained for the duration of the project.

Requirement 2--Track and Compile Best Practices and Develop Resource 
Materials

    An applicant must include in its application a plan to track and 
compile best practices at the State, LEA, and school levels and a plan 
to develop resources that support the planning, design, financing, 
procurement, construction, improvement, operation, and maintenance of 
safe, healthy, and

[[Page 41697]]

high-performing facilities for elementary and secondary schools.

Requirement 3--Training

    An applicant must include in its application a plan to develop and 
conduct at least two training programs per year for individuals in 
leadership positions (such as business or operations managers) in 
elementary or secondary schools or LEAs, who are responsible for the 
construction and or maintenance of elementary and secondary education 
facilities. Training topics must include information on the planning, 
design, financing, procurement, construction, improvement, operation, 
and maintenance of education facilities in order to improve the 
capacity of elementary and secondary schools or LEAs to make quality 
decisions regarding safe, healthy, and high-performing elementary and 
secondary education facilities. Training must be conducted upon request 
by the Department, elementary and secondary schools, States, or LEAs, 
and must be conducted by appropriate Clearinghouse staff or 
contractors.

Requirement 4--Technical Assistance

    An applicant must include in its application a plan to provide 
technical assistance, including a plan for providing on-site technical 
assistance to elementary schools, secondary schools, or LEAs, about 
issues related to the planning, design, financing, procurement, 
construction, improvement, operation, and maintenance of education 
facilities. The technical assistance may be provided in the form of 
electronic or telephone assistance when requested by these schools, 
LEAs, or the Department. On-site technical assistance visits will be 
conducted upon request by, or based on input from, the Department, 
elementary schools, secondary schools, or LEAs and must be completed 
using appropriate Clearinghouse staff or contractors. The Department 
must approve in advance all technical assistance visits.
    The technical assistance must consist of consultation regarding the 
planning, design, financing, procurement, construction, improvement, 
operation, and maintenance of education facilities. Specific technical 
assistance topics may include information related to: assessing 
facilities and construction plans for energy efficiency; conducting 
vulnerability assessments; and developing written plans to retrofit 
education facilities to address identified hazards and security 
concerns. Technical assistance may also address low-cost measures that 
can be taken to enhance the safety and security of schools.
    This notice does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

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

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this 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 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 stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed this final regulatory action under Executive 
Order 13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing this final priority and these requirements, only on 
a reasoned determination that their benefits justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that maximize net benefits. Based on the analysis that 
follows, the Department believes that this regulatory action is 
consistent with the principles in Executive Order 13563.
    We have determined, also, that this regulatory action does not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.
    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.

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    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 compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: 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 via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site 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). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: July 8, 2013.
Deborah S. Delisle,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2013-16668 Filed 7-10-13; 8:45 am]
BILLING CODE 4000-01-P