[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Rules and Regulations]
[Pages 54996-54998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27290]
[[Page 54995]]
_______________________________________________________________________
Part IV
Department of Education
_______________________________________________________________________
34 CFR Part 200
Title I--Helping Disadvantaged Children Meet High Standards; Final Rule
Federal Register / Vol. 63, No. 197 / Tuesday, October 13, 1998 /
Rules and Regulations
[[Page 54996]]
DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AA89
Title I--Helping Disadvantaged Children Meet High Standards
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The U.S. Secretary of Education (Secretary) amends the
regulations implementing programs under Title I of the Elementary and
Secondary Education Act of 1965. These amendments update the
regulations to reflect subsequent statutory changes that affect Title I
programs and delete an inapplicable provision.
EFFECTIVE DATE: These regulations take effect on November 12, 1998.
FOR FURTHER INFORMATION CONTACT: Wendy Jo New, Compensatory Education
Programs, Office of Elementary and Secondary Education, U.S. Department
of Education, 600 Independence Avenue, SW., Portals Building, room
4400, Washington, DC 20202-6140. Telephone: (202) 260-0982. 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.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
SUPPLEMENTARY INFORMATION: On March 31, 1998, the Secretary published
in the Federal Register (63 FR 34800) a notice of proposed rulemaking
(NPRM) under Title I. The preamble to the NPRM included a discussion of
the major changes proposed in that document to update the Title I
regulations to reflect some recent statutory changes and to increase
program flexibility in order to improve services for students. These
proposed changes included the following:
Amending Sec. 200.8 of the Title I regulations to allow
funds received by an LEA under Part B of the Individuals with
Disabilities Education Act (IDEA) to be combined with other Federal,
State, and local funds to carry out any activities in a schoolwide
program.
Amending Sec. 200.28 of the Title I regulations to include
a ``no-wide-variance'' provision to allow an LEA to designate as
eligible and serve all school attendance areas and schools within a
grade span or the entire LEA if the poverty rates of all areas and
schools do not vary more than 10 percentage points.
Allowing the use of Title I funds for construction of real
property if such construction is reasonable and necessary to carry out
a Title I program.
Amending Sec. 200.63 of the final regulations to implement
a statutory change that allows a State or LEA to exclude supplemental
State and local funds that are expended in any school attendance area
or school from both supplement, not supplant and comparability
determinations under Parts A and C of Title I, as long as the
supplemental State and local expenditures are for programs that meet
the intent and purposes of Part A.
These final regulations reflect two significant changes from the
NPRM. First, the Secretary has decided not to include the ``no-wide-
variance'' provision in the final regulations. Second, the Secretary
has decided not to include the provision authorizing construction of
real property in the final regulations. The reasons for these decisions
are fully explained in the appendix to these regulations.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 11 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM is published as an appendix to these final regulations.
Major issues are grouped according to subject. Technical and other
minor changes--and any suggested changes the Secretary is not legally
authorized to make under the applicable statutory authority--are not
addressed.
Executive Order 12866
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 associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary to be necessary for administering this program effectively
and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of the regulations justify the costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Paperwork Reduction Act of 1995
These regulations have been examined under the Paperwork Reduction
Act of 1995 and have been found to contain no information collection
requirements.
Assessment of Educational Impact
Based on the response to the NPRM and on its own review, the
Department has determined that the regulations in this document do not
require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.
Electronic Access to This Document
Anyone may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the pdf, you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the pdf, call the U.S. Government Printing
Office toll free at 1-888-293-6498.
Anyone may also view this document in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The document is located under Option G--
Files/Announcements, Bulletins and Press Releases.
Note: The official version of this document is the document
published in the Federal Register.
List of Subjects in 34 CFR Part 200
Administrative practice and procedure, Adult education, Children,
Coordination, Education, Education of disadvantaged children, Education
of individuals with disabilities, Elementary and secondary education,
Eligibility, Family, Family-centered education, Grant programs--
education, Indians--education, Institutions of higher education,
Interstate coordination, Intrastate coordination, Juvenile delinquency,
Local educational agencies, Migratory children, Migratory workers,
Neglected, Nonprofit private agencies, Private schools, Public
agencies, Reporting and recordkeeping requirements, State-administered
programs, State educational agencies, Subgrants.
[[Page 54997]]
Dated: October 6, 1998.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Numbers: 84:010, Improving
Programs Operated by Local Educational Agencies; 84.011, Migrant
Education Basic State Formula Grant Program; 84.013, Prevention and
Intervention Programs for Children and Youth Who Are Neglected,
Delinquent, or At-Risk of Dropping Out; 84.144, Migrant Education
Coordination Program; 84.213, Even Start Family Literacy Program)
The Secretary amends Title 34 of the Code of Federal Regulations by
revising Part 200 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. In Sec. 200.8, paragraph (c)(1) is revised and paragraph
(c)(3)(ii)(B)(3) is added to read as follows:
Sec. 200.8 Schoolwide program requirements.
* * * * *
(c) Availability of other Federal funds. (1) In addition to funds
under this subpart, a school may use in its schoolwide program Federal
funds under any program administered by the Secretary that is included
in the most recent notice published by the Secretary in the Federal
Register or is addressed in paragraph (c)(3)(ii)(B)(3) of this section.
* * * * *
(3) * * *
(ii) * * *
(B) * * *
(3) Special Education. (i) A school may combine funds received
under Part B of the Individuals with Disabilities Education Act (IDEA)
in a schoolwide program, except that the amount so used in any
schoolwide program may not exceed the amount received by the LEA under
Part B of IDEA for that fiscal year; divided by the number of children
with disabilities in the jurisdiction of the LEA; and multiplied by the
number of children with disabilities participating in the schoolwide
program.
(ii) A school may also combine funds received under section 8003(d)
of the Act (Impact Aid funds for children with disabilities) in a
schoolwide program.
(iii) A school that combines funds under Part B of IDEA or section
8003(d) of the Act in its schoolwide program may use those funds for
any activities under its schoolwide program plan but shall comply with
all other requirements of Part B of IDEA, to the same extent it would
if it did not combine funds under Part B of IDEA or section 8003(d) of
the Act in schoolwide program.
* * * * *
(Authority: 20 U.S.C. 6314, 1413(a)(2)(D), 6396(b)(3), 7703(d),
7815(c))
3. Section 200.28 is amended by removing paragraph (a)(2)(iii).
4. Section 200.63 is revised to read as follows:
Sec. 200.63 Exclusion of supplemental State and local funds from
supplement, not supplant and comparability determinations.
(a) For purposes of determining compliance with the comparability
requirement in section 1120A(c) and the supplement, not supplant
requirement in section 1120A(b) of the Act, a grantee or subgrantee
under Parts A or C of Title I may exclude supplemental State and local
funds spent in any school attendance area or school for programs that
meet the intent and purposes of Title I.
(b) A program meets the intent and purposes of Title I if the
program either--
(1)(i) Is implemented in a school in which the percentage of
children from low-income families is at least 50 percent;
(ii) Is designed to promote schoolwide reform and upgrade the
entire educational operation of the school to support students in their
achievement toward meeting the State's challenging student performance
standards that all children are expected to meet;
(iii) Is designed to meet the educational needs of all children in
the school, particularly the needs of children who are failing, or most
at risk of failing, to meet the State's challenging student performance
standards; and
(iv) Uses the State's system of assessment, if final, or the
transitional assessment system to review the effectiveness of the
program; or
(2)(i) Serves only children who are failing, or most at risk of
failing, to meet the State's challenging student performance standards;
(ii) Provides supplementary services designed to meet the special
educational needs of the children who are participating in the program
to support their achievement toward meeting the State's student
performance standards that all children are expected to meet; and
(iii) Uses the State's system of assessment, if final, or the
transitional assessment system to review the effectiveness of the
program.
(c) The conditions in paragraph (b) of this section also apply to
supplemental State and local funds expended under sections
1113(b)(1)(C) and 1113(c)(2)(B) of the Act.
(Authority: 20 U.S.C. 6322(d))
Appendix--Analysis of Comments and Changes
(Note: This appendix will not appear in the Code of Federal
Regulations)
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
Procedures for the Within-District Allocation of LEA Program Funds
Section 200.28 Allocation of Funds to School Attendance Areas and
Schools
Comment: Several commenters objected to the proposed regulation
to reinstitute the previously statutorily authorized no-wide-
variance provision. They argued that the Secretary does not have the
legal authority to regulate on this issue because Congress omitted
this discretionary option from the legislation. The commenters
noted, however, that the Secretary can achieve essentially the same
result because he has the authority to grant waivers on a case-by-
case basis to districts that can demonstrate that exercising the no-
wide variance option would overcome a barrier to improving school
performance. A few commenters opposed the proposed no-wide-variance
provision because they erroneously believed it would divert
resources from higher-poverty schools outside the 10 percent band of
poverty. In fact, however, this provision would only have applied to
those districts with schools that all fall within a 10 percent band
of poverty. One commenter supported the proposed regulation that
would reinstitute the no-wide-variance option.
Discussion: The no-wide-variance provision, authorized first by
regulation and then under prior legislation, recognized that, in
LEAs with a uniform distribution of children from low-income
families, selecting only those areas or schools above the
districtwide poverty average draws insignificant distinctions
without furthering the goal of targeting Title I funds in the
highest poverty schools. Nonetheless, in its 1994 reauthorization of
Title I, Congress did not include the no-wide-variance provision in
its efforts to improve targeting of Title I funds. As a result, a
number of LEAs have requested waivers of the school selection
provisions in section 1113 of Title I to allow them to serve all
their schools if those schools have a low variation in their poverty
percentages. Because all of these waiver requests have been granted,
the Secretary had proposed to regulate on this issue to make it
universally applicable. However, as a result of the negative
comments we received, the Secretary reconsidered and has decided not
to regulate on this issue. Rather, the Secretary will continue to
consider no-wide-variance questions on a case-by-case basis through
the waiver process and may reconsider this issue during the
reauthorization of ESEA.
Changes: The final regulations do not include the no-wide-
variance provision.
General Provisions
[[Page 54998]]
Section 200.62 Use of Funds for Construction of Real Property
Comment: Several commenters supported the proposed regulation
authorizing the use of Title I funds for construction of real
property if reasonable and necessary to carry out a Title I
activity. They suggested, however, restricting the cost of any such
construction to no more than 5 percent of an LEA's Title I
allocation and suggested that specific criteria be included to
ensure construction would be linked to a needs assessment and school
improvement plan. Others suggested limiting construction and
alterations to preschool activities and parent involvement centers.
One commenter suggested that a Title I program that uses Title I
funds for renovation would need to operate for a given number of
years or Title I would have to be paid back the cost of the
renovation. Several commenters, however, objected to using Title I
funds for construction at the expense of reducing direct academic
services to children. Some commenters argued that the Secretary does
not have the authority to regulate on construction absent specific
statutory authority.
Discussion: The statute included express authority to use
Chapter 1 (now Title I) funds for construction prior to 1994.
However, the reauthorization of Title I did not include such
authority. Section 76.533 of the Education Department General
Administrative Regulations (EDGAR) prohibits a State or subgrantee
from using Federal education funds for construction or acquisition
of real property unless specifically permitted by the authorizing
statute or implementing regulations for the program. Based on actual
instances in which the prohibition of construction with Title I
funds was an obstacle to LEAs who could have offered enhanced Title
I services, the Secretary had proposed to allow, through
regulations, the use of Title I funds for construction and
renovation of real property if reasonable and necessary to carry out
Title I purposes. Authorizing construction by regulation is clearly
permitted under Sec. 76.533 of EDGAR. However, the number of
comments opposing the use of Title I funds for construction were
compelling, and the Secretary has reconsidered regulating on this
issue at this time. The Secretary may reconsider this issue during
the upcoming reauthorization of the ESEA.
Changes: The final regulations do not include a provision
authorizing construction of real property with Title I funds.
Section 200.63 Exclusion from Supplement, not Supplant and
Comparability Determinations
Comment: One commenter suggested modifying the regulation to
clarify that it applies to programs using either a State's
assessment system, if final, or its transitional assessment system.
Discussion: The Secretary agrees that this clarification would
be helpful.
Changes: The Secretary has revised Sec. 200.63(b)(1)(iv)
and(2)(iii) to include the recommended language.
Comment: One commenter suggested that the regulations clarify
what is meant by meeting the intent and purposes of Title I. The
commenter further recommended that the provisions under Chapter 1,
which required the Secretary or a State, respectively, to approve
the exclusion of State and local compensatory funds, be included in
these regulations.
Discussion: The Omnibus Consolidated Rescissions and
Appropriations Act of 1996 permits the exclusion of supplemental
State and local funds from supplement, not supplant and
comparability determinations if those funds are expended in any
school for programs that meet the ``intent and purposes of Title
I.'' Section 200.63(b) of the final regulations specifies those
characteristics a program must have to meet the intent and purposes
of Title I. The Secretary believes that these provisions are
sufficient to ensure that programs subject to the exclusion meet the
intent and purposes of Title I. Neither the ESEA nor the amendment
made by the Omnibus Consolidated Rescissions and Appropriations Act
of 1996 requires approval by the Secretary or a State, respectively,
and, therefore, the Secretary does not believe it is appropriate to
add the suggested provisions to these regulations.
Changes: None.
Comment: One commenter recommended that the regulations permit
State and local supplemental funds to be excluded from the
supplement, not supplant and comparability determinations in a
schoolwide-like program even if the school does not have at least
50% poverty.
Discussion: The law permits the exclusion of State and local
supplemental funds from supplement, not supplant and comparability
determinations if those funds are used for programs that meet the
intent and purposes of Title I. Given that the authority in Title I
permits only those schools with at least 50% poverty to use Title I
funds to conduct schoolwide programs, the Secretary believes that
poverty threshold should also govern schools conducting programs
subject to the exclusions in Sec. 200.63.
Changes: None.
[FR Doc. 98-27290 Filed 10-9-98; 8:45 am]
BILLING CODE 4000-01-P
