[Federal Register Volume 62, Number 99 (Thursday, May 22, 1997)]
[Rules and Regulations]
[Pages 28248-28255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13490]
[[Page 28247]]
_______________________________________________________________________
Part IX
Department of Education
_______________________________________________________________________
34 CFR Parts 200 and 299
Elementary and Secondary Education Act General Provisions, Final Rule
Federal Register / Vol. 62, No. 99 / Thursday, May 22, 1997 / Rules
and Regulations
[[Page 28248]]
DEPARTMENT OF EDUCATION
34 CFR Parts 200 and 299
RIN 1810-AA82
General Provisions, Elementary and Secondary Education Act
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The U.S. Secretary of Education (the Secretary) issues final
general regulations governing programs under the Elementary and
Secondary Education Act of 1965, as amended by the Improving America's
Schools Act of 1994 (the ``Elementary and Secondary Education Act'',
``ESEA'' or the ``Act''). These regulations implement several
provisions in Title XIV (General Provisions) of the Act. These
regulations generally govern all programs under the Act, and establish
uniform provisions to minimize burdensome differences in implementing
similar statutory provisions in individual programs.
The areas that are covered by these regulations for ESEA programs
are: Other applicable regulations; priorities for empowerment zones or
enterprise communities in discretionary grants; the consolidation of
State and local administrative funds; maintenance of effort; services
to private school children and teachers; and complaint procedures. In
addition, these final regulations provide further flexibility to States
under Title III of the Goals 2000: Educate America Act.
EFFECTIVE DATES: These regulations take effect on June 23, 1997.
COMPLIANCE: However, affected parties do not have to comply with the
information requirements in 299.11(d) until the Department of Education
publishes in the Federal Register the control numbers assigned by the
Office of Management and Budget (OMB) to these information collection
requirements. Publication of the control numbers notifies the public
that OMB has approved these information requirements under the
Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact Delores Warner, Telephone: (202) 260-1941. Individuals who use
a telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern time, Monday through Friday. Internet:
Delores__Warner@ed.gov
SUPPLEMENTARY INFORMATION: On October 20, 1994, the President signed
into law the Improving America's Schools Act of 1994 (IASA) (Pub. L.
103-382). The IASA reauthorizes and fundamentally changes the ESEA,
redesigning its programs so that they work together to support high-
quality teaching and learning to help all children learn challenging
material in academic areas and acquire the knowledge and skills they
will need to succeed in the 21st century.
The reauthorized ESEA, including Title XIV, is designed to make it
easier for programs to work with, rather than separately from, one
another. In addition, the Act fosters the coordination of ESEA programs
with the broader education services that children receive. For example,
the reauthorized Act supports State and community reform efforts geared
to challenging State academic standards, particularly those initiated
or supported by the Goals 2000: Educate America Act.
The new programs are also designed to target funds to areas,
schools or students with the greatest needs for assistance, and to
support State and local efforts at broader educational reform. At the
same time they reduce burdens and provide for needed flexibility.
Generally, in implementing the Act, the Department is issuing
regulations only where absolutely necessary, or to provide increased
flexibility. The regulations in Part 299 are consistent with this
approach and are intended to provide support to educators at the State
and local levels in their implementation of provisions in Title XIV and
of the Act as a whole. Title XIV contains provisions that provide for
flexibility; promote coordinated program services; authorize waivers of
certain provisions to increase the quality of instruction or improve
academic performance; authorize consolidated State and local plans and
applications and consolidation of State and local administrative funds;
and establish uniform provisions applicable to programs authorized in
the ESEA.
Most of the provisions of Title XIV are not the subject of
regulations. The Department has issued, separately from this
regulation, non-binding guidance to help grantees better understand and
implement a number of Title XIV provisions such as State consolidated
plans (section 14302 of the Act), waivers (section 14401 of the Act),
and the Gun-Free Schools Act (sections 14601-14603 of the Act). Copies
of these guidance packages are available from Delores Warner, U.S.
Department of Education, 1250 Maryland Avenue S.W., Room 4000, Portals
Building, Washington, DC 20202-6110. The Department is currently
preparing additional non-binding guidance addressing certain other
Title XIV provisions.
On March 26, 1996, the Secretary published a notice of proposed
rulemaking (NPRM) for Title XIV in the Federal Register (61 FR 13324).
The preamble to the NPRM included a discussion of the provisions
enacted by Congress that were addressed in the NPRM.
Analysis of Comments
In response to the Secretary's invitation to comment in the NPRM,
the Department received nine letters from State and local officials and
various organizations. Most of the letters contained multiple comments.
An analysis of the comments and the Secretary's responses to those
comments is presented below.
In developing these final regulations, the Secretary has considered
these comments, balancing the concerns of State and local school
officials, parents, and others with the statutory purposes of Title XIV
and the needs of the students, parents, and teachers to be served. In
addition, the Secretary took into account the principle of only
regulating where absolutely necessary. As a result of considering all
of these factors, the Department has made several substantive changes
to the regulations. Several clarifying and technical changes were also
made to the regulations.
Subpart A--Purpose and Applicability
Section 299.2 What General Administrative Regulations Apply to ESEA
Programs?
Comment: None.
Discussion: In reviewing the notice of proposed rulemaking, the
Department was concerned that it be clear that the three standards of
accountability that alternative State fiscal and administrative
provisions have to meet under the section, are adequate to ensure that
program costs are allocable to a particular ``cost objective.'' See OMB
circular A-87, Attachment A subsection C.3. The three standards are
that State provisions must ensure that (1) funds are used in compliance
with all applicable Federal provisions, (2) costs are reasonable and
necessary for operating these programs, and (3) funds are not to be
used for general expenses required to carry out other responsibilities
of a State or its subrecipients.
The Department has concluded that the three standards are
sufficient and, in particular, to meet the first of the three
standards, alternative State provisions must, among other things,
ensure that
[[Page 28249]]
costs are allocable to a particular cost objective. Therefore, there is
no need to add a specific additional standard on the allocability of
costs, but the Department has added a clarifying note after Sec. 299.2.
Change: The Department has added a clarifying note after
Sec. 299.2.
Subpart B--Selection Criteria
Section 299.3 What Priority May the Secretary Establish for Activities
in an Empowerment Zone or Enterprise Community?
Comment: One commenter stated that establishing a priority in
discretionary grants for Empowerment Zones or Enterprise Communities
(EZ/EC) gives an ``unfair competitive preference'' to EZ/EC communities
that already receive preferential consideration in several other
discretionary grant programs. The commenter believes that preferential
treatment of one set of identified applicants negates the fairness of
discretionary grant competitions.
Discussion: The Department often establishes priorities in grant
competitions. Establishment of a priority does not eliminate the
fairness or the competitive nature of a grant competition. For example,
even when a ``competitive preference'' is given, a high quality
application that addresses the other published criteria thoroughly may
more likely be funded than an applicant qualifying for an EZ/EC
preference that files a poorer quality application that does not
address the other criteria well. Additionally, the use of the proposed
priority is discretionary.
As a general matter, the Department believes that the general
purposes of the EZ/EC communities are appropriate to support through a
priority in certain competitions. The EZ/EC communities are
characterized by pervasive poverty, unemployment, and general distress,
and are implementing locally designed strategies for building healthy,
safe and economically vibrant communities with limited resources. Thus,
in certain competitions it will be appropriate to address greatest
needs by concentrating limited resources on an applicant that serves an
EZ/EC community.
Change: None.
Subpart C--Consolidation of State and Local Administrative Funds
Section 299.4(a) What Requirements Apply to the Consolidation of State
and Local Administrative Funds?
Comment: One commenter, representing a State educational agency
(SEA), recommended that regulatory language be added that specifically
states that ``program funds'' may not be consolidated. The commenter
believes that the specific statement would assist local educational
agencies (LEAs).
Discussion: Section 14203 of the ESEA, the provision of law that
the regulation implements, clearly applies only to the portion of
program funds that may be used for administration. Therefore, it is not
necessary to provide more detailed regulations on this point. Section
14203 requires that SEAs, in collaboration with LEAs in the State,
establish procedures for responding to requests from LEAs to
consolidate administrative funds, and for establishing limitations on
the amount of funds that may be used for administration on a
consolidated basis. As long as the State establishes reasonable
provisions, including that only reasonable and necessary expenses of
administering the programs properly can be incurred, the State has
flexibility in establishing procedures. To the extent that LEAs have
questions about these matters, SEAs have the authority to issue
regulations, guidance, and procedures to address them.
Change: None.
Comment: One commenter said that the regulations would go beyond
the language of the Act by specifying when and if a State can
consolidate administrative funds by adding the reference to ``for
administrative purposes.'' The commenter believes that it will be
difficult to define ``administrative funds''. The commenter asks the
Secretary to let the wording of the statute stand and eliminate the
reference to ``for administrative purposes.''
Discussion: The Department believes that the regulatory language is
consistent with the intent of section 14201 since this section concerns
the administration of programs. The intent of the provision is to
permit only SEAs with sufficient funding to support their
administrative activities to consolidate ESEA administrative funds.
Change: None.
Subpart D--Fiscal Requirements
Section 299.5 What Maintenance of Effort Requirements Apply to ESEA
Programs?
Comments: One commenter agreed with the proposed maintenance of
effort provisions, especially with regard to the Title I program. The
commenter felt that the maintenance of effort regulations are clearly
stated, easy to understand, and explicit about costs that may or may
not be included in calculations. The commenter also stated that
requiring a level of commitment from local school districts will ensure
that Title I funds benefit the students for whom they were allocated.
Discussion: None.
Change: Because Sec. 299.5 applies to Title I, these regulations
remove the existing Title I--specific maintenance of effort regulations
in 34 CFR 200.64.
Subpart E--Services to Private School Students and Teachers
Section 299.6 What Are the Responsibilities for Providing Services to
Children and Teachers in Private Schools?
Comment: Two commenters asked that the term ``meaningful
consultation'' be clarified. One commenter was concerned that the term
may not mean the same thing to public school administrators as it does
to private school representatives. The second commenter was concerned
that the provisions of the Education Department General Administrative
Regulations (EDGAR) pertaining to consultation no longer apply. One of
the commenters also noted that ``meaningful consultation'' is, however,
defined in the statute in section 14503(c) of Title XIV.
Discussion: Section 14503(c) of ESEA contains specific elements of
``meaningful consultation,'' and it is not necessary to restate them in
the regulations. While the EDGAR provisions on consultation are no
longer applicable to these programs, the Title XIV statutory provisions
regarding consultation are modeled after the EDGAR provisions, so that
consultation requirements have not been diminished.
Change: None.
Comment: One commenter expressed a concern that Sec. 299.6(c) makes
the private school participation provisions in EDGAR not applicable to
covered programs. Of particular interest to this commenter is
Sec. 76.659 of the EDGAR regulations, which permits publicly funded
personnel to provide services in other than public facilities. The
commenter recommends that the EDGAR regulation be incorporated in its
entirety into Subpart E of these regulations.
Discussion: Nothing in Sec. 299.6 precludes publicly-funded
personnel, in appropriate circumstances, from providing services in
non-public settings. The level of detail suggested by the commenter is
not necessary for this regulation. The Department will consider whether
further nonregulatory guidance on this issue is necessary.
Change: None.
[[Page 28250]]
Section 299.7 What are the Factors for Determining Equitable
Participation of Children and Teachers in Private Schools?
Comment: One commenter asked for further explanation of the term
``equitable basis.'' The commenter wanted it made clear that LEAs must
subtract administrative expenses before making an equitable
distribution of the remaining funds.
Discussion: The Secretary believes that, as drafted,
Sec. 299.7(a)(2) already indicates clearly that LEAs first must take
administrative expenses from the total allocation of program funds
before determining ``equal expenditures.''
Change: None.
Comment: One commenter called for more clarification of the phrase
``taking into account the number and educational needs of those
children and their teachers * * *,'' and ``other educational
personnel'' in Sec. 299.7(a)(1). Another commenter asked for more
specific definitions of ``benefits'' and ``special needs'' as used in
Sec. 299.7(c). All of these comments raise concern about the potential
for variations in interpretation at the LEA level.
Discussion: Section 299.7(b)(3) makes clear that an agency or
consortium of agencies, in consultation with private school officials,
makes the final determination as to what services shall be provided to
private school children. If, after timely and meaningful consultation,
the agency or consortium decides that private school children need
services that are different from those provided to public school
children, Sec. 299.7(c) requires them to provide those different
services. The Secretary believes that decisions about equitable
services are best made at the local level after meaningful consultation
as described in the statute, and that detailed regulations are
unnecessary.
Change: None.
Comment: One commenter suggested that this section would require an
LEA to assess the specific needs and educational progress of eligible
private school children and teachers. The commenter believes that such
an assessment would be difficult, unworkable, burdensome and viewed by
``private school operators'' with ``hostility'' as an intrusion into
their operations.
Discussion: The Secretary believes that, through meaningful
consultation, the LEA can work cooperatively with private school
representatives to acquire adequate information to make the types of
determinations required by this section. It is in the interest of
private school representatives and the LEA to work in a cooperative
manner to develop plans that ensure equitable services to meet the
needs of private school children and their teachers.
Change: None.
Section 299.8 What are the Requirements to Ensure That Funds do not
Benefit a Private School?
Comment: One commenter observed that this section does not contain
a particular method for determining compliance with the section. The
commenter believes that the lack of specific procedures will cause
confusion and the expenditure of time and effort by LEAs in attempting
to demonstrate to auditors and program monitors a district's compliance
with this regulation. The commenter suggested deleting the section.
Discussion: The Secretary believes that, by using meaningful
consultation and reasonable methods of administrative oversight, an LEA
will be able to develop a relatively simple process for ensuring
compliance with this section. This provision is similar to 34 CFR
76.658. The Secretary is reluctant to establish more specific
requirements and procedures that may or may not be appropriate to fit
particular local circumstances.
Change: None.
Section 299.9 What are the Requirements Concerning Property,
Equipment, and Supplies for the Benefit of Private School Children and
Teachers?
Comment: One commenter expressed a concern that the wording of this
section is too broad and asked for greater specificity, particularly
exempting ``consumable'' products from the requirement.
Discussion: These requirements are the same as those established
for the Title I, Part A program at 34 CFR 200.13. There is no reason
for treating ``consumable'' products differently from other supplies.
Change: None.
Subpart F--Complaint Procedures
Section 299.10 What Complaint Procedures Shall an SEA Adopt?
Comment: One commenter asked that the provision cover Title VII and
the Bilingual Education Act. Three commenters asked that this provision
be extended to cover other programs, outside of ESEA (e.g., the Carl D.
Perkins Vocational and Applied Technology Education Act, the McKinney
Homeless Assistance Act, the School to Work Opportunities Act, or Goals
2000), in addition to those listed in paragraph (b).
Discussion: The purpose of this subpart is to give the SEA the
responsibility to resolve complaints where the SEA has administrative
responsibilities for how a subgrantee implements the program. Because
the Bilingual Education Act in Title VII is a discretionary grant
program administered primarily at the LEA and Federal levels, rather
than by the SEA, it is not appropriate to have SEAs establish and
administer a complaint procedure. Part C of Title VII (Emergency
Immigrant Education), which is State-administered, has been added to
the list of covered programs. Additionally, language has been added to
clarify that these procedures apply only to the State-administered
portions of the Even Start programs.
Because Title XIV of ESEA, the primary subject of these
regulations, applies only to programs in ESEA, these regulations were
designed to fit the needs of the programs in ESEA. Once the Department
has experience with the implementation of these regulations, we will
consider whether they should be extended to other programs.
Change: One program has been added to the list of applicable
programs, and language has been added to clarify that these procedures
apply only to the State-administered portions of the Even Start
programs.
Section 299.11 What Are Included in the Complaint Procedures?
Comment: Several commenters suggested that the regulations be more
specific. They suggested that the regulations require the provision of
specific information to parents and LEAs; include minimum time limits
for resolving a complaint, and require a written decision to resolve
the complaint. One commenter suggested that the regulations indicate
more clearly that they apply to complaints about services to private
school students as well as other matters.
Some commenters suggested that parents of eligible children be
given notice that complaint procedures exist, and be provided advice on
how to file complaints. A commenter further recommended that the
procedures be made available in languages other than English, as
appropriate.
Discussion: These regulations balance the flexibility of ESEA and
the principle of regulating only when absolutely necessary with the
need in certain cases to establish minimum requirements to ensure that
the purposes of the statute are met. Generally, the level of detail
that these commenters suggest be included in the regulations on
complaint procedures goes beyond what
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the Secretary considers absolutely necessary for these programs.
Moreover, these matters are best left to the SEA to address after
taking into account its particular circumstances. The Secretary does
not think it is appropriate to prescribe further detailed
specifications for the procedures. For example, although the Secretary
believes that a reasonable period of time for hearing and resolving a
complaint would generally be 60 to 90 days, regulating specific
timelines for all complaints, no matter how detailed, does not seem
necessary or appropriate.
The regulations clarify that they apply, among other things, to
complaints about violations of the requirements to serve private school
children and that the resolution be in writing.
On the other hand, the need for parents to be aware of the
complaint procedures seems basic to ensuring proper accountability and
involvement in the programs. Therefore, the Secretary has added a
provision to ensure that LEAs adequately inform parents of the
complaint procedures. In determining whether LEAs adequately informed
parents, LEAs would be expected to make information available in
languages other than English to the extent appropriate.
Change: The Secretary has added clarifying language in paragraphs
(a) and (c) and added a new paragraph (d) to Sec. 299.11 requiring that
the complaint procedures include informing parents of the procedures.
Executive Order 12866
1. Assessment of Costs and Benefits
These final 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 costs and benefits associated with the final
regulations are minimal and to the extent there are costs, the costs
result primarily from the statutory requirements and regulations
determined by the Secretary to be necessary for administering these
programs effectively and efficiently.
Thus, in assessing the potential costs and benefits--both
quantitative and qualitative--of these proposed regulations, the
Secretary has determined that the benefits of the proposed regulations
justify the costs.
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.
Summary of Potential Costs and Benefits
The potential costs and benefits are discussed elsewhere in this
preamble under the following heading: Analysis of Comments and Changes.
Paperwork Reduction Act of 1995
Collection of Information: General Provisions, Elementary and Secondary
Education Act: Complaint Process
1. Section 299.11(d) contains information collection requirements.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)),
the Department of Education has submitted a copy of this provision to
the Office of Management and Budget (OMB) for its review under that
Act.
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information unless it displays a valid
OMB control number. The valid OMB control number assigned to the
collection of information in these final regulations is displayed at
the end of the affected sections of the regulations. The approval
number for the information collection contained in Secs. 299.10-299.12
(except for Sec. 299.11(d)) is 1810-0591 and the approval expires 05/
31/99.
2. Section 299.11(d) was added as a result of public comments, and
it contains an information collection requirement. As required by the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department of
Education has submitted a copy of this provision to the Office of
Management and Budget (OMB) for its review under the Act.
Under Sec. 299.11(d), an SEA is required to indicate to LEAs that
they must notify parents and appropriate private school officials or
representatives of the complaint procedures. The likely respondents to
the collection of information in the complaint process are SEAs and
LEAs who will have to notify parents and the other individuals.
We estimate that the burden associated with the public notification
process will amount to an additional 136,000 hours. Some 17,000 school
districts will have to spend an average of eight person hours
developing a notice, reproducing it, and distributing it. Some LEAs may
choose to put a notification in a local newspaper; others may
distribute the notification to each student or parents or private
school representative or official. Our estimate is based on the latter
assumption. The other option would probably save a significant amount
of time reproducing and distributing the notice. Additionally, if an
SEA developed a standard notice for the LEAs in its State, burden would
be reduced substantially. Therefore, if LEAs develop their own notice
and distribute it to each student or parent or private school
representative or official, the total annual reporting and
recordkeeping burden that will result from the collection of this
information is likely to be 136,000 burden hours (17,000 LEAs,
multiplied by eight burden hours for developing a notice, reproducing
it, and distributing it). If other options are taken by the SEA or LEA,
many fewer burden hours will be involved.
Organizations and individuals desiring to submit comments on the
information collection requirement in Sec. 299.11(d) should direct them
to the Office of Information and Regulatory Affairs, OMB, Room 10235,
New Executive Office Building, Washington, D.C. 20503; Attention: Desk
Officer for U.S. Department of Education.
The Department considers comments by the public on this proposed
collection of information in:
Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through 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.
OMB is required to make a decision concerning the collection of
information contained in Sec. 299.11(d) between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication.
Intergovernmental Review
Some of the programs affected by these final regulations are
subject to the requirements of Executive Order 12372 and the
regulations in 34 CFR Part 79. The objective of the Executive order is
to foster an inter-governmental partnership and a strengthened
federalism by relying on processes
[[Page 28252]]
developed by State and local governments for coordination and review of
proposed Federal financial assistance. In accordance with the order,
this document is intended to provide early notification of the
Department's specific plans and actions for these programs.
List of Subjects
34 CFR Part 200
Education of disadvantaged, Elementary and secondary education,
Grant programs--education, Indians-education, Infants and children,
Juvenile delinquency, Migrant labor, Private schools, Reporting and
recordkeeping requirements.
34 CFR Part 299
Administrative practice and procedure, Education, Elementary and
secondary education, Grant programs--education, Private schools,
Reporting and recordkeeping requirements.
Dated: May 19, 1997.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number does not apply)
The Secretary amends Title 34 of the Code of Federal Regulations by
amending Part 200 and adding a new Part 299 to read as follows:
PART 200--TITLE I--HELPING DISADVANTAGED CHILDREN MEET HIGH
STANDARDS
1. The authority citation for Part 200 continues to read as
follows:
Authority: 20 U.S.C. 6301-6514, unless otherwise noted.
2. Section 200.64 is amended by removing and reserving the section.
Sec. 200.64 [Reserved]
3. A new Part 299 is added to read as follows:
PART 299--GENERAL PROVISIONS
Subpart A--Purpose and Applicability
Sec.
299.1 What are the purpose and scope of these regulations?
299.2 What general administrative regulations apply to ESEA
programs?
Subpart B--Selection Criteria
299.3 What priority may the Secretary establish for activities in
an Empowerment Zone or Enterprise Community?
Subpart C--Consolidation of State and Local Administrative Funds
299.4 What requirements apply to the consolidation of State and
local administrative funds?
Subpart D--Fiscal Requirements
299.5 What maintenance of effort requirements apply to ESEA
programs?
Subpart E--Services to Private School Students and Teachers
299.6 What are the responsibilities of a recipient of funds for
providing services to children and teachers in private schools?
299.7 What are the factors for determining equitable participation
of children and teachers in private schools?
299.8 What are the requirements to ensure that funds do not benefit
a private school?
299.9 What are the requirements concerning property, equipment, and
supplies for the benefit of private school children and teachers?
Subpart F--Complaint Procedures
299.10 What complaint procedures shall an SEA adopt?
299.11 What items are included in the complaint procedures?
299.12 How does an organization or individual file a complaint?
Authority: 20 U.S.C. 1221e-3(a)(1), 6511(a), and 7373(b) unless
otherwise noted.
Subpart A--Purpose and Applicability
Sec. 299.1 What are the purpose and scope of these regulations?
(a) This part establishes uniform administrative rules for programs
in Titles I through XIII of the Elementary and Secondary Education Act
of 1965, as amended (ESEA). As indicated in particular sections of this
part, certain provisions apply only to a specific group of programs.
(b) If an ESEA program does not have implementing regulations, the
Secretary implements the program under the authorizing statute, and, to
the extent applicable, Title XIV of ESEA, the General Education
Provisions Act, the regulations in this part, and the Education
Department General Administrative Regulations (34 CFR Parts 74 through
86) that are not inconsistent with specific statutory provisions of
ESEA.
(Authority: 20 U.S.C. 1221e-3(a)(1))
Sec. 299.2 What general administrative regulations apply to ESEA
programs?
With regard to the applicability of Education Department General
Administrative Regulations (EDGAR) in Part 80 to the ESEA programs
except for Title VIII programs (Impact Aid) (in addition to any other
specific implementing regulations):
(a) 34 CFR Part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments) applies to
State, local, and Indian tribal governments under direct grant programs
(as defined in 34 CFR 75.1(b)), and programs under Title XI of ESEA.
(b) 34 CFR Part 80 also applies to State, local, and Indian tribal
governments under all other programs under the ESEA and to programs
under Title III of the Goals 2000: Educate America Act (Title III of
Goals 2000), unless a State formally adopts its own written fiscal and
administrative requirements for expending and accounting for all funds
received by State educational agencies (SEAs) and local educational
agencies (LEAs) under the ESEA and Title III of Goals 2000. If a State
adopts its own alternative requirements, the requirements must be
available for inspection upon the request of the Secretary or the
Secretary's representatives and must--
(1) Be sufficiently specific to ensure that funds received under
ESEA and Title III of Goals 2000 are used in compliance with all
applicable statutory and regulatory provisions;
(2) Ensure that funds received for programs under ESEA and Title
III of Goals 2000 are spent only for reasonable and necessary costs of
operating those programs; and
(3) Ensure that funds received under ESEA and Title III of Goals
2000 are not used for general expenses required to carry out other
responsibilities of State or local governments.
Note: 34 CFR 222.13 indicates which EDGAR provisions apply to
Title VIII programs (Impact Aid).
Note: To meet the first of the three standards, alternative
State provisions must, among other things, ensure that costs are
allocable to a particular cost objective.
(Authority: 20 U.S.C. 1221e-3(a)(1))
Subpart B--Selection Criteria
Sec. 299.3 What priority may the Secretary establish for activities in
an Empowerment Zone or Enterprise Community?
For any ESEA discretionary grant program, the Secretary may
establish a priority, as authorized by 34 CFR 75.105(b), for projects
that will--
(a) Use a significant portion of the program funds to address
substantial problems in an Empowerment Zone, including a Supplemental
Empowerment Zone, or an Enterprise
[[Page 28253]]
Community designated by the United States Department of Housing and
Urban Development or the United States Department of Agriculture; and
(b) Contribute to systemic educational reform in such an
Empowerment Zone, including a Supplemental Empowerment Zone, or such an
Enterprise Community, and are made an integral part of the Zone or
Community's comprehensive community revitalization strategies.
(Authority: 20 U.S.C. 2831(a))
Subpart C--Consolidation of State and Local Administrative Funds
Sec. 299.4 What requirements apply to the consolidation of State and
local administrative funds?
An SEA may adopt and use its own reasonable standards in
determining whether--
(a) The majority of its resources for administrative purposes comes
from non-Federal sources to permit the consolidation of State
administrative funds in accordance with section 14201 of the Act; and
(b) To approve an LEA's consolidation of its administrative funds
in accordance with section 14203 of the Act.
(Authority: 20 U.S.C. 8821 and 8823)
Subpart D--Fiscal Requirements
Sec. 299.5 What maintenance of effort requirements apply to ESEA
programs?
(a) General. An LEA receiving funds under an applicable program
listed in paragraph (b) of this section may receive its full allocation
of funds only if the SEA finds that either the combined fiscal effort
per student or the aggregate expenditures of State and local funds with
respect to the provision of free public education in the LEA for the
preceding fiscal year was not less than 90 percent of the combined
fiscal effort per student or the aggregate expenditures for the second
preceding fiscal year.
(b) Applicable programs. This subpart is applicable to the
following programs:
(1) Part A of Title I (Improving Basic Programs Operated by Local
Educational Agencies).
(2) Title II (Eisenhower Professional Development Program) (other
than section 2103 and part C of this title).
(3) Subpart 2 of Part A of Title III (State and Local Programs for
School Technology Resources).
(4) Part A of Title IV (Safe and Drug-Free Schools and Communities)
(other than section 4114).
(c) Meaning of ``preceding fiscal year''. For purposes of
determining if the requirement of paragraph (a) of this section is met,
the ``preceding fiscal year'' means the Federal fiscal year, or the 12-
month fiscal period most commonly used in a State for official
reporting purposes, prior to the beginning of the Federal fiscal year
in which funds are available for obligation by the Department.
Example: For fiscal year 1995 funds that are first made
available on July 1, 1995, if a State is using the Federal fiscal
year, the ``preceding fiscal year'' is Federal fiscal year 1994
(which began on October 1, 1993 and ended September 30, 1994) and
the ``second preceding fiscal year'' is Federal fiscal year 1993
(which began on October 1, 1992). If a State is using a fiscal year
that begins on July 1, 1995, the ``preceding fiscal year'' is the
12-month period ending on June 30, 1994, and the ``second preceding
fiscal year'' is the period ending on June 30, 1993.
(d) Expenditures. (1) In determining an LEA's compliance with
paragraph (a) of this section, the SEA shall consider only the LEA's
expenditures from State and local funds for free public education.
These include expenditures for administration, instruction, attendance
and health services, pupil transportation services, operation and
maintenance of plant, fixed charges, and net expenditures to cover
deficits for food services and student body activities.
(2) The SEA may not consider the following expenditures in
determining an LEA's compliance with the requirements in paragraph (a)
of this section:
(i) Any expenditures for community services, capital outlay, debt
service or supplemental expenses made as a result of a Presidentially
declared disaster.
(ii) Any expenditures made from funds provided by the Federal
Government.
(Authority: 20 U.S.C. 8891)
Subpart E--Services to Private School Students and Teachers
Sec. 299.6 What are the responsibilities of a recipient of funds for
providing services to children and teachers in private schools?
(a) General. An agency or consortium of agencies receiving funds
under an applicable program listed in paragraph (b) of this section,
after timely and meaningful consultation with appropriate private
school officials (in accordance with the statute), shall provide
special educational services or other benefits under this subpart on an
equitable basis to eligible children who are enrolled in private
elementary and secondary schools, and to their teachers and other
educational personnel.
(b) Applicable programs. This subpart is applicable to the
following programs:
(1) Part C of Title I (Migrant Education).
(2) Title II (Professional Development) (other than section 2103
and part C of this title).
(3) Title III (Technology for Education) (other than Part B of this
title) (Star Schools).
(4) Part A of Title IV (Safe and Drug-Free Schools and Communities)
(other than section 4114).
(5) Title VI (Innovative Education Program Strategies).
(6) Title VII (Bilingual Education).
(c) Provisions not applicable. Sections 75.650 and 76.650 through
76.662 of Title 34 of the Code of Federal Regulations (participation of
students enrolled in private schools) do not apply to programs listed
in paragraph (b) of this section.
(Authority: 20 U.S.C. 8893)
Sec. 299.7 What are the factors for determining equitable
participation of children and teachers in private schools?
(a) Equal expenditures. (1) Expenditures of funds made by an agency
or consortium of agencies under a program listed in Sec. 299.6 (b) for
services for eligible private school children and their teachers and
other educational personnel must be equal on a per-pupil basis to the
amount of funds expended for participating public school children and
their teachers and other educational personnel, taking into account the
number and educational needs of those children and their teachers and
other educational personnel.
(2) Before determining equal expenditures under paragraph (a)(1) of
this section, an agency or consortium of agencies shall pay for the
reasonable and necessary administrative costs of providing services to
public and private school children and their teachers and other
educational personnel from the agency's or consortium of agencies'
total allocation of funds under the applicable ESEA program.
(b) Services on an equitable basis. (1) The services that an agency
or consortium of agencies provides to eligible private school children
and their teachers and other educational personnel must also be
equitable in comparison to the services and other benefits provided to
public school children and their teachers or other educational
personnel participating in a program under this subpart.
(2) Services are equitable if the agency or consortium of
agencies--
(i) Addresses and assesses the specific needs and educational
progress of eligible private school children and their teachers and
other educational
[[Page 28254]]
personnel on a comparable basis to public school children and their
teachers and other educational personnel;
(ii) Determines the number of students and their teachers and other
educational personnel to be served on an equitable basis;
(iii) Meets the equal expenditure requirements under paragraph (a)
of this section; and
(iv) Provides private school children and their teachers and other
educational personnel with an opportunity to participate that--
(A) Is equitable to the opportunity and benefits provided to public
school children and their teachers and other educational personnel; and
(B) Provides reasonable promise of participating private school
children meeting challenging academic standards called for by the
State's student performance standards and of private school teachers
and other educational personnel assisting their students in meeting
high standards.
(3) The agency or consortium of agencies shall make the final
decisions with respect to the services to be provided to eligible
private school children and their teachers and the other educational
personnel.
(c) If the needs of private school children, their teachers and
other educational personnel are different from the needs of children,
teachers and other educational personnel in the public schools, the
agency or consortium of agencies shall provide program benefits for the
private school children, teachers, and other educational personnel that
are different from the benefits it provides for the public school
children and their teachers and other educational personnel.
(Authority: 20 U.S.C. 8893)
Sec. 299.8 What are the requirements to ensure that funds do not
benefit a private school?
(a) An agency or consortium of agencies shall use funds under a
program listed in Sec. 299.6(b) to provide services that supplement,
and in no case supplant, the level of services that would, in the
absence of services provided under that program, be available to
participating children and their teachers and other educational
personnel in private schools.
(b) An agency or consortium of agencies shall use funds under a
program listed in Sec. 299.6(b) to meet the special educational needs
of participating children who attend a private school and their
teachers and other educational personnel, but may not use those funds
for--
(1) The needs of the private school; or
(2) The general needs of children and their teachers and other
educational personnel in the private school.
(Authority: 20 U.S.C. 8893)
Sec. 299.9 What are the requirements concerning property, equipment,
and supplies for the benefit of private school children and teachers?
(a) A public agency must keep title to, and exercise continuing
administrative control of, all property, equipment, and supplies that
the public agency acquires with funds under a program listed in
Sec. 299.6(b) for the benefit of eligible private school children and
their teachers and other educational personnel.
(b) The public agency may place equipment and supplies in a private
school for the period of time needed for the program.
(c) The public agency shall ensure that the equipment and supplies
placed in a private school--
(1) Are used only for proper purposes of the program; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The public agency must remove equipment and supplies from a
private school if--
(1) The equipment and supplies are no longer needed for the
purposes of the program; or
(2) Removal is necessary to avoid unauthorized use of the equipment
or supplies for other than the purposes of the program.
(e) No funds may be used for repairs, minor remodeling, or
construction of private school facilities.
(f) For the purpose of this section, the term public agency
includes the agency or consortium of agencies.
(Authority: 20 U.S.C. 8893)
Subpart F--Complaint Procedures
Sec. 299.10 What complaint procedures shall an SEA adopt?
(a) General. An SEA shall adopt written procedures, consistent with
State law, for--
(1) Receiving and resolving any complaint from an organization or
individual that the SEA or an agency or consortium of agencies is
violating a Federal statute or regulation that applies to an applicable
program listed in paragraph (b) of this section;
(2) Reviewing an appeal from a decision of an agency or consortium
of agencies with respect to a complaint; and
(3) Conducting an independent on-site investigation of a complaint
if the SEA determines that an on-site investigation is necessary.
(b) Applicable programs. This subpart is applicable to the
following programs:
(1) Part A of Title I (Improving Basic Programs Operated by Local
Educational Agencies).
(2) Part B of Title I (Even Start Family Literacy Programs) (other
than the federally administered direct grants for Indian tribes and
tribal organizations, children of migratory workers, Statewide family
literacy initiatives, and a prison that house women and children).
(3) Part C of Title I (Migrant Education).
(4) Part D of Title I (Children and Youth Who Are Neglected,
Delinquent, or At Risk of Dropping Out).
(5) Title II (Eisenhower Professional Development Program) (other
than section 2103 and part C of this title).
(6) Subpart 2 of Part A of Title III (State and Local Programs for
School Technology Resources).
(7) Part A of Title IV (Safe and Drug-Free Schools and Communities)
(other than section 4114).
(8) Title VI (Innovative Education Program Strategies).
(9) Part C of Title VII (Emergency Immigrant Education)
(Approved by the Office of Management and Budget under OMB Control
Number 1810-0591)
(Authority: 20 U.S.C. 1221e-3(a)(1), 8895)
Sec. 299.11 What items are included in the complaint procedures?
An SEA shall include the following in its complaint procedures:
(a) A reasonable time limit after the SEA receives a complaint for
resolving the complaint in writing, including a provision for carrying
out an independent on-site investigation, if necessary.
(b) An extension of the time limit under paragraph (a) of this
section only if exceptional circumstances exist with respect to a
particular complaint.
(c) The right for the complainant to request the Secretary to
review the final decision of the SEA, at the Secretary's discretion. In
matters involving violations of section 14503 (participation of private
school children), the Secretary will follow the procedures in section
14505(b).
(Approved by the Office of Management and Budget under OMB Control
Number 1810-0591)
(d) A requirement for LEAs to disseminate, free of charge, adequate
information about the complaint
[[Page 28255]]
procedures to parents of students, and appropriate private school
officials or representatives.
(Authority: 20 U.S.C. 1221e-3(a)(1), 8895)
Sec. 299.12 How does an organization or individual file a complaint?
An organization or individual may file a written signed complaint
with an SEA. The complaint must be in writing and signed by the
complainant, and include--
(a) A statement that the SEA or an agency or consortium of agencies
has violated a requirement of a Federal statute or regulation that
applies to an applicable program; and
(b) The facts on which the statement is based and the specific
requirement allegedly violated.
(Approved by the Office of Management and Budget under OMB Control
Number 1810-0591)
(Authority: 20 U.S.C. 1221e-3(a)(1), 8895)
[FR Doc. 97-13490 Filed 5-21-97; 8:45 am]
BILLING CODE 4000-01-P
