[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Rules and Regulations]
[Pages 25996-25998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11727]


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DEPARTMENT OF EDUCATION

34 CFR Part 225

RIN 1810-AB56


Outdated Regulations--Expanding Opportunity Through Quality 
Charter Schools Program (CSP)--Grants for Credit Enhancement for 
Charter School Facilities

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

ACTION: Final rule.

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SUMMARY: The Secretary amends the CSP--Grants for Credit Enhancement 
for Charter School Facilities program regulations to reflect changes 
made to title IV of the Elementary and Secondary Education Act of 1965 
(ESEA), as amended by the Every Student Succeeds Act (ESSA), to 
incorporate relevant statutory changes for the program and its 
implementing regulations.

DATES: This final rule is effective June 5, 2019.

FOR FURTHER INFORMATION CONTACT: Clifton Jones, 400 Maryland Avenue SW, 
Room 3E211, Washington, DC 20202. Telephone: (202) 205-2204. 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: On December 10, 2015, the ESSA, which 
reauthorized the ESEA, as amended by the No Child Left Behind Act of 
2001 (NCLB), was signed into law. Therefore, we are revising, in title 
34 of the Code of Federal Regulations (CFR), Sec. Sec.  225.1(b), 
225.4(a), 225.11(a)(7), and 225.12(a)(1) to reflect specific statutory 
changes. The following paragraphs describe the changes we are making to 
the regulations and the statutory changes that necessitate them.

Part 225--Credit Enhancement for Charter School Facilities Program 
(Sec.  225.1)

    Statute: Section 4304 of the ESEA.
    Current Regulations: Current Sec.  225.1 provides the purpose of 
the Credit Enhancement for Charter School Facilities program. The 
regulation was derived from the authorizing statute for the program 
under the ESEA, as amended by NCLB, that allowed grantees to use the 
grant funds deposited in the reserve account to assist charter schools 
to access private sector capital to accomplish either of the following 
objectives: (1) The acquisition of an interest in improved or 
unimproved real property that is necessary to commence or continue the 
operation of a charter school; or (2) the construction of new 
facilities, or the renovation, repair, or alteration of existing 
facilities, necessary to commence or continue the operation of a 
charter school.
    Final Regulations: Revised Sec.  225.1 updates the stated purpose 
of the Credit Enhancement for Charter School Facilities program. The 
regulation is derived from the authorizing statute for the program 
under the ESEA, as amended by ESSA, that allows for grantees to use the 
funds deposited in the reserve account to assist charter schools to 
access private sector capital to accomplish one or more of the 
following objectives: (1) The acquisition of an interest in improved or 
unimproved real property that is necessary to commence or continue the 
operation of a charter school; (2) the construction of new facilities, 
or the renovation, repair, or alteration of existing facilities, 
necessary to commence or continue the operation of a charter school; or 
(3) the predevelopment costs required to assess sites for purposes of 
the program and that are necessary to commence or continue the 
operation of a charter school.
    Reasons: Section 4304(e) of the ESEA, as amended by ESSA, added an 
additional program objective for which an eligible entity receiving a 
grant under this program may use the funds. Therefore, we are adding 
the new program objective to the regulation.

Part 225--Credit Enhancement for Charter School Facilities Program 
(Sec.  225.4)

    Statute: Section 4310(2) of the ESEA, as amended by ESSA, defines 
``charter school.''
    Current Regulations: Section 225.4(a) currently defines ``charter 
school'' under this program as it was defined in section 5210 of the 
ESEA, as amended by NCLB.
    Final Regulations and Reasons: The final regulation updates the 
definition of ``charter school'' under this program, to reference the 
current definition in section 4310(2) of the ESEA, as amended by the 
ESSA.

Part 225--Credit Enhancement for Charter School Facilities Program 
(Sec.  225.11)

    Statute: Section 4303(g)(2) of the ESEA.
    Current Regulations: The current regulation provides criteria that 
the Secretary will use to evaluate an application for a Credit 
Enhancement for Charter School Facilities grant. Section 225.11(a)(7) 
references States with strong charter laws, consistent with the 
criteria for such laws in section 5202(e)(3) of the ESEA, as amended by 
NCLB.
    Final Regulations and Reasons: The final regulation updates Sec.  
225.11(a)(7) to reference States with strong charter laws, consistent 
with the criteria for such laws in section 4303(g)(2) of the ESEA, as 
amended by ESSA.

Part 225--Credit Enhancement for Charter School Facilities Program 
(Sec.  225.12)

    Statute: Section 4304 of the ESEA.
    Current Regulations: The current regulation provides that the 
Secretary

[[Page 25997]]

may award up to 15 additional points under a competitive preference 
priority related to the capacity of charter schools to offer public 
school choice in those communities with the greatest need for this 
choice based on three factors. The three factors are: (1) The extent to 
which the applicant would target services to geographic areas in which 
a large proportion or number of public schools have been identified for 
improvement, corrective action, or restructuring under Title I of the 
ESEA, as amended by NCLB; (2) the extent to which the applicant would 
target services to geographic areas in which a large proportion of 
students perform below proficient on State academic assessments; and 
(3) the extent to which the applicant would target services to 
communities with large proportions of students from low-income 
families.
    Final Regulations: The final regulation updates the first factor in 
the list above to refer to the extent to which the applicant would 
target services in geographic areas in which a large proportion or 
number of public schools have been identified for comprehensive support 
and improvement or targeted support and improvement under the ESEA, as 
amended by the ESSA.
    Reasons: With the passage of the ESEA, as amended by ESSA, the 
categories of schools that States must identify under section 1111 have 
changed, and thus, the categories of schools in Sec.  225.12 that are 
based on these provisions must be updated. Under the ESEA, as amended 
by NCLB, the Department could award additional points to applicants 
that target services to geographic areas in which a large proportion or 
number of public schools have been identified for improvement, 
corrective action, or restructuring. However, under the ESEA, as 
amended by ESSA, States must now identify schools for comprehensive 
support and improvement and targeted support and improvement.

Executive Orders 12866, 13563, and 13771

    Waiver of Rulemaking and Delayed Effective Date: Under the 
Administrative Procedure Act (APA) (5 U.S.C. 553), the Department 
generally offers interested parties the opportunity to comment on 
proposed regulations. However, the APA provides that an agency is not 
required to conduct notice and comment rulemaking when the agency for 
good cause finds that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest. 5 
U.S.C. 553(b)(B).
    There is good cause here for waiving rulemaking under the APA 
because this regulatory action revises regulations to conform with 
statutory changes. This regulatory action does not establish or affect 
substantive policy. Therefore, under 5 U.S.C. 553(b)(B), the Secretary 
has determined that obtaining public comment on this regulatory action 
is unnecessary.
    Rulemaking is ``unnecessary'' when ``the administrative rule is a 
routine determination, insignificant in nature and impact, and 
inconsequential to the industry and to the public.'' Utility Solid 
Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), 
quoting U.S. Department of Justice, Attorney General's Manual on the 
Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 
F. Supp. 1004, 1016 (D.S.C. 1983).
    The APA generally requires that regulations be published at least 
30 days before their effective date, unless the agency has good cause 
to implement its regulations sooner (5 U.S.C. 553(d)(3)). As previously 
stated, because the final regulations merely reflect existing statutory 
changes, there is good cause to waive the delayed effective dates in 
the APA and make the final regulations effective upon publication.

Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined 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)(1) of Executive Order 
12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866, 
and that imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2019, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. Because this final rule is 
not a significant regulatory action, the requirements of Executive 
Order 13771 do not apply.
    We have also reviewed these regulations 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 on 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 these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those

[[Page 25998]]

approaches that maximize net benefits. The Department believes that 
these final regulations are consistent with the principles in Executive 
Order 13563.
    We also have determined that this regulatory action is not 
significant and would not unduly interfere with State, local, and 
Tribal governments in the exercise of their governmental functions.
    In accordance with the Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The final regulations are not 
expected to have a significant impact.

Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act does not apply to this rulemaking 
because there is good cause to waive notice and comment under 5 U.S.C. 
553.

Paperwork Reduction Act of 1995

    The final regulations do not create any new information collection 
requirements.

Intergovernmental Review

    The CSP--Grants for Credit Enhancement for Charter School 
Facilities are subject to Executive Order 12372 and the regulations in 
34 CFR part 79.
    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. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. 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 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.
    You may also view this document in text or PDF at the following 
site: www.ifap.ed.gov.

(Catalog of Federal Domestic Assistance Number: 84.354A CSP--Grants 
for Credit Enhancement for Charter School Facilities.)

List of Subjects in 34 CFR Part 225

    Education, Educational facilities, Elementary and secondary 
education, Grant programs-education, Reporting and recordkeeping 
requirements, Schools.

    Dated: May 30, 2019.
Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
part 225 of title 34 of the Code of Federal Regulations as follows:

PART 225--CREDIT ENHANCEMENT FOR CHARTER SCHOOL FACILITIES PROGRAM

0
1. The authority citation for part 225 is revised to read as follows:

    Authority: 20 U.S.C. 1221e-3, 1232, and 7221c.


Sec. Sec.  225.1 through 225.21   [Amended]

0
2. Sections 225.1 through 225.21 are amended by removing the authority 
citations at the end of each section.

0
3. Section 225.1 is further amended by adding paragraph (b)(3) to read 
as follows:


Sec.  225.1   What is the Credit Enhancement for Charter School 
Facilities Program?

* * * * *
    (b) * * *
    (3) Assist charter schools with the predevelopment costs required 
to assess sites for the purpose of acquiring (by purchase, lease, 
donation, or otherwise) an interest (including an interest held by a 
third party for the benefit of a charter school) in improved or 
unimproved real property or constructing new facilities, or renovating, 
repairing, or altering existing facilities, and that are necessary to 
commence or continue the operation of a charter school.
* * * * *


Sec.  225.4   [Amended]

0
4. Section 225.4 is further amended by removing the words ``5210 of the 
Elementary and Secondary Education Act of 1965, as amended by the No 
Child Left Behind Act of 2001'' from paragraph (a) introductory text 
and adding in their place the words ``4310(2) of the Elementary and 
Secondary Education Act of 1965, as amended by the Every Student 
Succeeds Act''.


Sec.  225.11   [Amended]

0
5. Section 225.11 is further amended by removing the words ``5202(e)(3) 
of the Elementary and Secondary Education Act of 1965'' from paragraph 
(a)(7) and adding in their place the words ``4303(g)(2) of the 
Elementary and Secondary Education Act of 1965''.

0
6. Section 225.12 is further amended by revising paragraph (a)(1) to 
read as follows:


Sec.  225.12   What funding priority may the Secretary use in making a 
grant award?

    (a) * * *
    (1) The extent to which the applicant would target services to 
geographic areas in which a large proportion or number of public 
schools have been identified for comprehensive support and improvement 
or targeted support and improvement under the ESEA, as amended by the 
Every Student Succeeds Act;
* * * * *
[FR Doc. 2019-11727 Filed 6-4-19; 8:45 am]
BILLING CODE 4000-01-P