Rule2022-01336
Charter School Programs (CSP) State Charter School Facilities Incentive Grants Program
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Published
January 25, 2022
Effective
January 25, 2022
Issuing agencies
Education Department
Abstract
The Department of Education (Department) amends the regulations that govern the State Charter School Facilities Incentive Program to align the regulations with the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), and the Tax Cut and Jobs Act of 2017.
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<title>Federal Register, Volume 87 Issue 16 (Tuesday, January 25, 2022)</title>
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[Federal Register Volume 87, Number 16 (Tuesday, January 25, 2022)]
[Rules and Regulations]
[Pages 3659-3661]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01336]
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DEPARTMENT OF EDUCATION
34 CFR Part 226
[DOCKET ID ED-2021-OESE-0147]
RIN 1810-AB62
Charter School Programs (CSP) State Charter School Facilities
Incentive Grants Program
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final rule.
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SUMMARY: The Department of Education (Department) amends the
regulations that govern the State Charter School Facilities Incentive
Program to align the regulations with the Elementary and Secondary
Education Act of 1965 (ESEA), as amended by the Every Student Succeeds
Act (ESSA), and the Tax Cut and Jobs Act of 2017.
DATES: These regulations are effective January 25, 2022.
FOR FURTHER INFORMATION CONTACT: Clifton Jones, U.S. Department of
Education, 400 Maryland Avenue SW, Room 3E211, Washington, DC 20202.
Telephone: (202)205-2204. Email: <a href="/cdn-cgi/l/email-protection#3457585d52405b5a1a5e5b5a51477451501a535b42"><span class="__cf_email__" data-cfemail="caa9a6a3acbea5a4e4a0a5a4afb98aafaee4ada5bc">[email protected]</span></a>.
If you use a telecommunications device for the deaf (TDD) or text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION: The Department is making technical changes
to its regulations in 34 CFR part 226, to align them with the ESEA, as
amended by the ESSA. The ESSA, which was signed into law on December
10, 2015, reauthorized the ESEA, previously amended by the No Child
Left Behind Act of 2001 (NCLB). We are also making changes to reflect
the repeal of the Qualified Zone Academy Bonds (QZAB) under the Tax Cut
and Jobs Act of 2017. These final regulations update ESEA citations,
remove obsolete references, and make other technical changes in 34 CFR
part 226, specifically Sec. Sec. 226.4(a), 226.11(a), 226.12(d)(3) and
(e), 226.13, and 226.14.
This final rule is separate and apart from any notice of proposed
priorities, requirements, selection criteria, or definitions that we
may publish for the State Charter School Facilities Incentive Program.
Part 226--State Charter School Facilities Incentive Program
Statute: Section 4310 of the ESEA.
Current Regulations: Section 226.4(a) specifies the definitions
that apply to the State Charter School Facilities Incentive program.
Section 226.4(a) states that ``charter school'' is defined in section
5210 of the ESEA.
New Regulations: In Sec. 226.4(a) of these final regulations, we
update the citation for the definition of ``charter school'' to section
4310 of the ESEA.
Reasons: Amendments to the ESEA by the ESSA resulted in a change to
the citation for the statute's definition section. The definitions for
the program are now in section 4310 of the ESEA, as amended by ESSA.
Statute: Section 5202(e) of the ESEA.
Current Regulations: Section 226.11(a) states that the Secretary
evaluates applications, in part, on the basis of competitive preference
priorities in Sec. 226.13. Section 226.13 provides that the Secretary
shall award additional points under the four statutory funding
priorities in section 5202(e)(2) and (3)(A), (B), and (C) of the ESEA
of.
New Regulations: In Sec. 226.11(a) of these final regulations, we
remove the reference to Sec. 226.13.
Reasons: The ESSA amendments to the ESEA removed section 5202(e)
from the statute.
Statute: Section 4304 of the ESEA.
Current Regulations: Section 226.12 establishes the selection
criteria that the Secretary uses in evaluating applications for CSP
State Charter Schools Facilities Incentive Grants. Under selection
criterion (d)(3), the Secretary evaluates the extent to which the
applicant's non-Federal share exceeds the minimum percentages of the
per-pupil facilities aid program in section 5205(b)(2)(C) of the ESEA.
New Regulations: Section 226.12(d)(3) of these final regulations
cites section 4304(k)(2)(C) of the ESEA, as amended by the ESSA, when
referencing the extent to which the non-Federal share exceeds the
minimum percentages of the per-pupil facilities aid program.
Reasons: The current citation, section 5205(b)(2)(C), is from the
ESEA, as amended by NCLB. In these final regulations, we update the
citation in Sec. 226.12(d)(3) to section 4304(k)(2)(C) to reference
the ESEA, as amended by the ESSA.
Statute: Section 13404 of the Tax Cuts and Jobs Act of 2017.
Current Regulations: Section 226.12 establishes the selection
criteria that the Secretary uses in evaluating applications for CSP
State Charter Schools Facilities Incentive Grants. Under Sec.
226.12(e), the Secretary evaluates the State's experience in addressing
the facility needs of charter schools. Specifically, Sec. 226.12(e)
references experience in using QZABs as an example of how the State
could demonstrate experience addressing facility needs of charter
schools.
New Regulations: In Sec. 226.12(e), we are removing reference to
the use of QZABs as an example of how the State could demonstrate
experience addressing the facility needs of charter schools.
Reasons: The Tax Cuts and Jobs Act enacted in December 2017
repealed the States' authority to issue tax credit bonds, such as
QZABs, after December 31, 2017.
Statute: Section 5202(e) of the ESEA.
Current Regulations: Section 226.13 establishes statutory funding
priorities that the Secretary may use in making awards. Specifically,
it lists the priorities described in section 5202(e)(2) and (3)(A),
(B), and (C) of the ESEA: (a) Periodic review and evaluation; (b)
number of high-quality charter schools; (c) one authorized public
chartering agency other than a local educational agency, or an appeals
process; and (d) high degree of autonomy.
New Regulations: We are removing Sec. 226.13.
Reasons: The ESSA amendments to the ESEA removed section 5202(e)
from the statute.
Statute: Title I, Section 1111 of the ESEA.
Current Regulations: Section 226.14--titled ``What other funding
priorities may the Secretary use in making a grant award?''--provides
that the Secretary may award additional points under competitive
preference priorities related to the capacity of charter schools to
offer public school choice in those communities with the greatest need
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; (2) The extent to which the applicant would target services to
geographic areas in which a large proportion of students perform poorly
on State academic assessments; and (3) The extent to which the
applicant would target services to communities with large proportions
of low-income students.
New Regulations: We are removing the word ``other'' from the
section title. Additionally, we are revising the first factor, which is
defined in Sec. 226.14(a)(1), to refer to the extent to which the
applicant targets services to geographic areas in which a large portion
or number of public schools have been identified for comprehensive
[[Page 3660]]
support and improvement or targeted support and improvement under Title
I of the ESEA, as amended by the ESSA.
Reasons: The ESSA amendments to the ESEA removed the statutory
priorities established in section 5202(e), leaving one set of funding
priorities; hence the word ``other'' in the section heading is not
needed. The ESSA amendments to the ESEA also revised the categories of
schools that States must identify under Title I, section 1111. States
no longer identify schools for improvement, corrective action, or
restructuring; instead, States identify schools for comprehensive
support and improvement or targeted support and improvement.
Waiver of Proposed 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 the requirement is
impracticable, unnecessary, or contrary to the public interest. 5
U.S.C. 553(b)(B). There is good cause here for waiving rulemaking
because these regulations make technical changes only to align with
current law and do not establish substantive policy.
The APA also 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)). Again,
because these final regulations are merely technical, there is good
cause to make them effective on the day they are published.
Executive Orders 12866 and 13563
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 significant and, therefore, not
subject to review by OMB under Executive Order 12866.
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.''
In choosing among alternative regulatory approaches, we selected
those approaches that maximize net benefits. Based on the analysis that
follows, the Department believes that these 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 both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action.
Potential Costs and Benefits
The Department believes that this final rule does not impose costs
because it makes only technical changes that do not impose additional
burden. Moreover, any costs associated with this rule are outweighed by
the benefit of providing necessary clarification.
Need for Regulatory Action
The Secretary amends the State Charter School Facilities Incentive
Grants program regulations to reflect changes made to the program
statute by ESSA. These technical amendments are needed to provide
clarity in program administration for prospective applicants and the
public.
Net Budget Impacts
The Department estimates that these final regulations will add an
additional cost of $0.
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 State Charter School Facilities Incentive Grants Program is
subject to Executive Order 12372 and the regulations in 34 CFR part 79.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
Electronic Access to This Document: The official version of this
document is
[[Page 3661]]
the document published in the Federal Register. You may access the
official edition of the Federal Register and the Code of Federal
Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. 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
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You may also access documents of the Department published in the
Federal Register by using the article search feature at:
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects in 34 CFR Part 226
Education, Educational facilities, Grant programs--education,
Reporting and recordkeeping requirements, Schools.
Miguel A. Cardona,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
part 226 of title 34 of the Code of Federal Regulations as follows:
PART 226--STATE CHARTER SCHOOL FACILITIES INCENTIVE PROGRAM
0
1. The authority citation for part 226 continues to read as follows:
Authority: 20 U.S.C. 1221e-3; 7221d(b), unless otherwise noted.
Sec. 226.4 [Amended]
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2. Section 226.4 is amended in paragraph (a) introductory text by
removing ``5210'' and adding in its place ``4310''.
Sec. 226.11 [Amended]
0
3. Section 226.11 is amended in paragraph (a) by removing ``Sec.
226.13 and''.
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4. Section 226.12 is amended:
0
a. In paragraph (d)(3), by removing ``5205(b)(2)(C)'' and adding, in
its place, ``4304(k)(2)(C)''; and
0
b. By revising paragraph (e).
The revision reads as follows:
Sec. 226.12 What selection criteria does the Secretary use in
evaluating an application for a State Charter School Facilities
Incentive program grant?
* * * * *
(e) State experience. The experience of the State in addressing the
facility needs of charter schools through various means, including
providing per-pupil aid and access to State loan or bonding pools.
* * * * *
Sec. 226.13 [Removed and Reserved]
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5. Section 226.13 is removed and reserved.
Sec. 226.14 [Amended]
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6. Section 226.14 is amended:
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A. In the section heading, by removing ``other''.
0
B. In paragraph (a)(1), by removing ``improvement, corrective action,
or restructuring under title I of the ESEA'' and adding, in its place,
``comprehensive support and improvement or targeted support and
improvement under the ESEA''.
[FR Doc. 2022-01336 Filed 1-24-22; 8:45 am]
BILLING CODE 4000-01-P
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