Federal Register / Vol. 87, No. 16 / Tuesday, January 25, 2022 / Rules and Regulations 3659 

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. 

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: 

clifton.jones@ed.gov. 

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 §§ 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 § 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 § 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 § 226.11(a) of 

these final regulations, we remove the 

reference to § 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 

§ 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 § 226.12(e), the Secretary 

evaluates the State’s experience in 

addressing the facility needs of charter 

schools. Specifically, § 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 § 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 

§ 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 

§ 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 


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3660 Federal Register / Vol. 87, No. 16 / Tuesday, January 25, 2022 / Rules and Regulations 

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 


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Federal Register / Vol. 87, No. 16 / Tuesday, January 25, 2022 / Rules and Regulations 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 

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. 

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 

■ 1. The authority citation for part 226 

continues to read as follows: 

Authority: 20 U.S.C. 1221e–3; 7221d(b), 

unless otherwise noted. 

§ 226.4 [Amended] 

■ 2. Section 226.4 is amended in 

paragraph (a) introductory text by 

removing ‘‘5210’’ and adding in its 

place ‘‘4310’’. 

§ 226.11 [Amended] 

■ 3. Section 226.11 is amended in 

paragraph (a) by removing ‘‘§ 226.13 

and’’. 

■ 4. Section 226.12 is amended: 

■ a. In paragraph (d)(3), by removing 

‘‘5205(b)(2)(C)’’ and adding, in its place, 

‘‘4304(k)(2)(C)’’; and 

■ b. By revising paragraph (e). 

The revision reads as follows: 

§ 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. 

* * * * * 

§ 226.13 [Removed and Reserved] 

■ 5. Section 226.13 is removed and 

reserved. 

§ 226.14 [Amended] 

■ 6. Section 226.14 is amended: 

■ A. In the section heading, by removing 

‘‘other’’. 

■ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2020–0362; FRL–9238–02– 

R4] 

Air Plan Approval; FL; Removal of 

Motor Vehicle Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving changes to a 

State Implementation Plan (SIP) 

revision submitted by the State of 

Florida, through the Florida Department 

of Environmental Protection (FDEP), in 

a letter dated July 2, 2020. Specifically, 

EPA is approving the removal of rules 

prohibiting tampering with motor 

vehicle air pollution control equipment 

and rules concerning visible emissions 

from motor vehicles. These rules were 

previously approved into the SIP even 

though they were not required by the 

Clean Air Act (CAA or Act) to be in the 

SIP. EPA is approving the removal of 

the tampering rules and visible emission 

rules from the federally approved SIP 

because removing the requirements is 

consistent with the CAA and applicable 

regulations. 

DATES: This rule is effective February 

24, 2022. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2020–0362. All documents in the docket 

are listed on the www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Regulatory Management Section, 

Air Planning and Implementation 

Branch, Air and Radiation Division, 

U.S. Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. EPA requests that, 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday 8:30 a.m. to 4:30 p.m., 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Kelly Sheckler, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air and 

Radiation Division, Region 4, U.S. 

Environmental Protection Agency, 61 

Forsyth Street SW, Atlanta, Georgia 

30303–8960. The telephone number is 

(404) 562–9222. Ms. Kelly Sheckler can 

also be reached via electronic mail at 

sheckler.kelly@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Florida submitted a SIP revision, 

through a letter dated July 2, 2020, to 

update the State’s air quality rules, 

specifically, for the removal of Chapters 

62–243 and 62–244 from the Florida 

SIP. The first rule relates to antitampering measures that restricted the 

removal or disabling of specific motor 

vehicle air pollution control devices and 

prohibited the sale, lease, or transfer of 

motor vehicles by licensed motor 

vehicle dealers. The second rule relates 

to the prohibition of operating either 

gasoline or diesel-powered vehicles on 

public roads that emit visible emissions 

for more than five continuous seconds. 

Chapters 62–243 and 62–244 implement 

certain ‘‘on-road’’ prohibitions of 

Florida Statutes (F.S.) Section 316.2935. 

The purpose of Chapter 62–243, 

Tampering with Motor Vehicles Air 

Pollution Control Equipment, is to 

prohibit licensed motor vehicle dealers 

from offering for sale, lease or transfer, 

vehicles that had the emission control 

components tampered with or removed. 

Chapter 62–244, Visible Emissions from 

Motor Vehicles, implements 

requirements relating to the operation of 

a motor vehicle on public roads in the 

state of Florida that emit visible 

emissions from the exhaust tailpipe for 


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