### RULES AND REGULATIONS

Interested persons were given 30 days in wlich to submit comments, suggestions, or objections regarding the proposed regulations.

No written comments have been received and the proposed regulations are hereby adopted without change and are set forthbelow.

Effective date. VA Regulations 3.400 -and 3.702 are effective August 1, 1975, and VA Regulations 3.656, 3.658 and 3.659 are effective April 20, 1976.

Approved: April 20, 1976.- By direction of the Administrator.

[SEAL] ODELL W; VAUGHr, DeputyAdministrator.

1. In § 3.400, pdragraph (a) (3) (W and (iii) is revised toread as follows: § 3.400 General

(0) Deathbeneilts. A • * (3) Dependency and indemnity com- pensation-() Deaths prior toJanuary 1, 1957 (§3.702). Date ofreceipt ofelection.

(iii) Deaths on or after May 1, 1957 (in-service waiver eases; §§ 3.5(b) (3) and3.702). Date ofreceipt of election.

2.in §3.656, paragraph(d) isrevised to read as folldws: §3.696 Disappearance ofveteran.

(d) When anyveteranhas disappeared for 90 days or more and his (or her) whereabouts remain unknown to members ofhis (orher) family and the VeteransAdministration, anypension under Pub.L4 86-211 (73 Stat.432) or SpanishAmericanWarpensionwhichtheveteran

was receiving or entitled to receive may be paid to or for the spouse or children. The status of the veteran at the time of disappearance,withrespecttopermanent and total disability, income, and net worth will be presumed to continue unchanged.

-Payment for the wife (hus-. band) or children will be effective the day following the date of last payment to the veteran If a claim is received within 1 year after that date; otherwise from date of receipt of a claim. The total amount payable will be the lesser of these amounts:

(1) Death pension. (2) Amount ofpension payable to the
veteran at the time of disappearance. (38 U.S.C. 507) 1,



### 3. Section 3.658 is revised to read as follows: § 3.658 Offsets; dependency and indemnitycompensation. (a) When an award of dependency and "Indemnity compensation Is made covering a pdriod for which death compensation or benefits under the Federal Employee's Compensation Act, based on military service, have been paid to the

same payee based on the same death, theaward of dependency and Indemnity compensation will be made subject to an offset ofpayments ofdeath compensation orbenefits under theFederalEmployees,' Compensation Act over the same perld. (b) When an award of dependency and indemnity compensation Is made covering a period for which death benefits have been paid to the same payee basedon the death ofanother spouse thA award will be made subject to an offset ofpayments ofdeath pensionor compensation, or dependency and indemnity compensation overthe sameperiodin the

case of the other spouse. (38 U.S.C. 103 (d) (2), 3104(b) (3))

4. In § 3.659, paragraph (b) is revised
to read asfollows: § 3.659 Two parents in sa,,e parental line.

(b) Any "reduction or dLscontinuance of an award to the child or to a widow .(widower) will be effective the day preceding the commencing date of death pension, compensation, or dependency and indemnity compensation or, under the circumstances described In § 3.707, the commencing date of dependents' educatonal assistance under 38U.S.C. ch. 35, to or on account of the child based

on the service of another parent in the

same parental line. Any increase to a widow (widower) or another child will be effective the commencing date of the award to the child.

5. In § 3.702, paragraphs (a) and (b)

arerevised toread asfollows:
§ 3.702 Dependency andindemnity contpensation. (a) -Right to elect. A person who is eligiblefor death compensation and who has entitlement to dependency and Indemnity compensation pursuant to the provisions of § 3.5(b)(2) or (3) may receive dependency and indemnity compensation upon the filing of a claim. The claim of such a person for service-con- -nected death benefits shallbe considered

a claim for dependency and indemnity compensation subject to confirmation by the claimant. The effective date of payment is controlled by the provisions of §3.40(c)(3).

(b) Effect on child's entitlement Where a widow or widower Is entitled
to death compensation, the amount of which is based it part on the existence of a child who has attained the age of 18years, andelects toreceivedependency and indemnity compensation, the independent award of dependency and indemnity compensatlon to which thechild is entitled will be awarded to or for the child without separate election by-or for the child. Should such a widow or widowernot elect toreceive dependency and -indemnity compensation, the independent dependency and indemnity compensation to which a child who has attained 18 years of age is entitled, may be awarded upon application by or for the child. The effective date of award In these situations will be in accordance
with §3.400(e) (3) (.).

(FRDo.7-11088 Plied4-23-76;8:46 am] 

### 17397

Title40-Protection oftheEnvironment
CHAPTER 1-ENVIRONMENTAL PROTECTION AGENCY 

### IPRL &28-61
PART 401-GENERAL PROVISIONS
PART 402-BEST TECHNOLOGY AVAILABLE FOR THE LOCATION, DESIGN, CONSTRUCTION, AND CAPACITY OF COOLING WATER INTAKE STRUCTURES FOR MINIMIZING ADVERSE ENVIRONMENTAL IMPACT
OnDecember 13, 1973notice was published in the FEDEmm REuGsTm (38 FR 34410), that theEnvironmental Protection Agency (EPA orAgency) was proposing regulations concerning determinations to Insure that the location, design, construction, and capacity ofcooling water intake structures reflect the besttechnolo.y available forminimfzig adverse environmental Impact.

Thepurpose ofthis notice istoestablish final regulations regarding cooling water intake structures by amending 40 CFR Chapter I Subchapter N, Part 401 and byadding anew Part402. Thisfinal rulemaking is promulgated pursuant to sections 301, 306, "316(b) and 501(a) of theFederalWaterPollution ControlAct,

as amended, (the Act); 33 U.S.C. 1311, 1316, 1326(b) and 1261(a); 86 Stat. 816 etseq.; Pub.L.92-500.

Section316(b) oftheActrequires that "any standard established pursuant to section 301orsection306 ofthisAct and applicable to a point source shall re- quire that the location, design, con- struction, and capacity ofcooling water intake structures reflect the best technology available forminimizing adverse environmentalImpact."'

Theregulations setforthbelow amend 40 CPR Part 401 (General Provisions) and establish anew part402. TheGeneralProvisions setforthInPart 401were published on February 4, 1974 (39 FR 4532).

Section 401.14, which Is added to Part 401 by these regulations, provides that the location, design, construction and capacity of cooling water Intake structures for any point source for which a standard is established pursuant to sec- tion 301 or 306 shall reflect the best technology available for minimizing ad-

verse environmental impact In accord-

ance with theprovisions ofPart 402.

Section 402.10 establishes the applicability of the provisions of Part 402. 

### Section 402.11 provides definitions for severalofthe significantstatutoryterms

- which appear In Section 316(b) of the Act.

Section 402.12 provides that the in

### formation containedintheDevelopment Document accompanying these re-ulations Is to be used in.determining com.- pliance withthe statutory standard.

The regulations asproposed were supportedbya document entitled '"Development DocumentforProposed BestTechnologyAvailable forMlInimizing Adverse Environmental Impact of CoolingWater Intake SructureS." (December, 1973). Thisdocument wasmadeavailabletothe ublic and circulated to interested perFEDERAL REGISTER, VOL. 41, NO. 81-MONDAY, APRIL 26, 1976

HeinOnline -- 41 Fed. Reg. 17387 1976RULES AND REGULATIONS

sons at approximately theotime ofpub-

- verse environmental Impacts. Once such lication of the notice ofproposed'rule- adverse effects have been Identified (or, making. in the case of new structures, pre-

Interested personswere Invitedtopar- dicted) then the effortmust be to select tieipate in therulemaking by submitting the most effective means ofminimizing written comments within 30 days from (Le., "reducing to the smallest possible the date of publication. Because of de- amount or degree") those adverse ef- lays in the printing of the supporting fects. The brieflegislativehistory ofsec- Development Document beyond the tion 316(b) 'states thatthe term "best Agency's control, the period for public technology available" contemplates the comment was extended an additional 90 best technology available commercially daysin order to afford afull opportunity at an economically practicable cost. As to Interested parties to participate fully with the statute, this language does not in the rulemaking process (39 FR 4487).. require aformal or informal "cost/bene- Prior public participation in the form of fit"assessment. Rather, the term "availsolicited comments and responses from able, commercially at an economically the States, Federal agencies, and other practicablecost" reflects aCongressional interested parties were described in the concern that the application of "best preamble totheproposedregulation. The technology available" should notimpose EPA has considered carefully all of the an impracticable and unbearable. co- comments received and a discussion of nomic burden on the operation of any these comments with thi Agency's re- ,plantsubjecttosection 316(b). Sincethe sponse thereto follows, regulations require a case-by-case deter- (a) SummarybfMajor Comments.' mination of the best available techThe following responded to the re- nology, consideration of the economic quest for written comments which was practicability of installing that tech- contained in the preamble to the pro- nology-must necessarily be conducted on posed regulations: Natural Resources, a similarly individualized basis. DefenseCouncil,Inc.; Dukd PowerCom-

_ (2) Severalcommentersrecommended pany; Shell Oil Company; Manufactur- thattheDevelopmentDocument include Ing Chemists Association; United States specific consideration ofthe ageoffaclAtomic Energy Commission; United ities And other pertinent factors which States Department of the- Interior; bear upon the degree to which costs are Quirk, Lawler and Matusky Engineers; reasonable forparticular establishments. Indianapolis PowerandLight Company; Others suggested that the Agency ex- New York State Department of Envi- plicitly distinguish among the types of ronmental Conservation; State ofMich- -technology considered the best available Igan Department of Natural Resources; on the basis ofthe nature of the water National Oceanic and Atmlospheric Ad- body on which the plant is located and ministration; Tennessee Valley Author- the percentage of flow withdrawn. Ity; State of California-State Water Section316(b) requires "thatthe locaResources Control Board; Common- tfon, design, construction, and capacity wealth Edison Company; Texas Electric ofcooling waterintake structures reflect Service Company; Consolidated Edison the best technology available for mini- Company of New York, Inc.; Salt River mizing adverse environmental impact." Project; Otter Tal Power Company; Decisions relating to thebest technology State of New York Public Service Corn- available areto be made on a case-by- mission; Illinois Power Company; The case basis and may include factors such Great Western Sugar Company; "Edison as age. The Development Document for Electric Institute; State of New Hamp- Cooling Water, Intake Structures con- shireFishand GameDepartment; Union tains Information to be used in de- Carbide Corporation; Texaco, Inc.; termining the best technology available. Mobil Oil Corporation; NewYorkPower The Development Document accom- Pool; United States Department of panying- effluent lhiiitations and new Health, Education, and Welfare; Colo- source performance standards for par- rado Department ofPublic Health; Tex- ticular industrial categores may be re- aco, Inc.; NorthernIndianaPublic Serv- ferred to for other factors specific to ice Company; New EnglandPower Com- point sourceswithin tat categorywhich pany; State of NewYork Department of may be relevant to consideration 'of Law; Debevolse and Liberman. The fol- economic practicability. The potential lowing Is a summary of the significant for adverse environmental effects.associcomments and the Agency's response to ated with cooling water systems may those comments. 'depend upon such factors as size and (1) Several commentersrecommended type of water body and relative magni- that the regulations provide that the tude of flow withdrawn for cooling. The "best technology available" be deter- Agency expects such factors to be con- mined on the basis of-anassessment of sidered In determining the appropriate the cost of applying a particular tech- coolingwater technology. nology in relation to the benefits to be (3) Several commenters recommended attained, that the construction technology Inforlto comparison ofmonetary costs with mationbe deleted from theDevelopment the social benefits ofminimizing adverse Document because Its consideration by environmental Impacts,much less a for- EPA would duplicate the actions of the mal, quantified "cost/benefit" assessment U.S. Army Corps of Engineers. is required by the terms of the Act. The regulations ofthe Corps of Engi- The statute directs the Agency to in- neers primarily relate to hazards to
sure that enumerated aspects of cooling navigation.The dataintheDevelopment water intake structures reflect the best Document concerning construction techtechnology available for minimizing ad- nology address factors related-to "minimizing adverse environmental impact" of cooling water intake structures and -therefore supplement rather than duplicate the actions of the Corps of Engi-

neers. (4) Some commenters recommended that the Agency identify closed cycle or recirculating cooling systems as the best technology available for minimizing ad-
verse environmental impact. Others rec- ommended that, atleast for steam electric powerplants locatedin estuaries and biologically important coastal areas the "best technology available" is closed cycle cooling,sinceminimization ofcooling water intake capacity (volume of flow) is the most practical currently available means for minimizing mor- tality of marine species in passage through the internal cooling systems of these plants.

The Agency "does not believe that closed cycle cooling systems are universally and necessarily the best technology available despite their undoubted and dramatic reductionInratesof water used. While the extent of' entrainment and impingement damage is In many, cases correlated with the amount of water withdrawn, the Agency believes that the appropriate technology is best determined after a careful evaluation of the specific aspects at each slte. Moreover, because of the substantial cost of conversion to closed cycle cooling sys- tems, Itse-conomic practicability will depend upon considerations relating to Individual industrial plants which are, again,mosteffectively analyzed on acase by casebasis.

While thereIs substantial evidence for
concern about the potential destructive effects of open-cycle cooling systems on powerplants In biologically sensitive

areas such as estuaries, the available data corresponding to certain of these plants donotsupport a blanket require- ment that all similarly situated plants reduce the capacity of their intake structures so as torequire conversion to -recirculating coolingsystems. (5) One commenter observed that the cost of modifying an existing Intake struture to comply with certain specifi- cations will generally exceed the cost of designing and constructing a newintake structure to those standards. On this basis, It is urged that the Agency ex- presslyprovidethatan existingstructure which has minimal environmental impact "reflects" the 'est technology" re- gardless of whether Its design, location andcapaqity conformprecisely tothe re- lated criteria set forth In the Development Document.

TheAgency recognizes thatthe cost of modification to existing structures may exceed that ofconstructing anewintako structure to comparable standards. The Agency expects that higher costs assoclated with "retrofitting" existing structures, as wellastherelationship of those costs to the remaining expected useful life ofthe facility, will betaken Into account Indetermining the extenttowhich the specific technological measurco described in the Development Document

FEDERAL REGISTER, VOL. 41, NO. 81-MONDAY, APRIL 26, 1976 

### 1788

HeinOnline -- 41 Fed. Reg. 17388 1976RULES AND REGULATIONS

are available at an "economically practicable cost."

-6) Some commenters recommended that the Development Document should provide that the-proper testforminimizing adverse en'vironmental impact Is re- lated todamage totheaquaticecosystem and not to thenumber of fish and other aquatic organisms killed or damaged.

Section 316(b) requires that the best technology availablebe used tominimize adverse environmental impacts. Asiloted in theDevelopment Document, there are many factorm that should be considered when "determining whether an adverse environmentalimpact exists oris likely to exist.Thefactors notedbythe comment-

ers are among thoseto beconsidered. All pertinent factors, rather than reliance

on a siagle factor, should receive adequate consideration. (7)Some commenters recommended thatthe regulations should not establish nationally'uniform deadlines for compli-

ance.

Inasmuch asthe available technologies of cooling water intake structures for __mifniing adverse environmental impact, as well as effuent thermal control system characteristics governed by sec- tion 316(a) of the Act, are closely re- lated to-the capacity (volume of flow) and other features of the cooling water intake system, the practicable implementation, of requirements concerning intake structures andeffluentheat should consider both requirements. Therefore, compliance dates should be determined

on a case-by-case basis taking into con- sideration -any compliance dates for limitations on the discharge of heated effluent and other pertinent factors.

(8) Some commenters recommended that the regulations should refer Independentlytoentrainment damage orthat the -Development Document should be enlarged to cover harm from entrainmnt.A. countervening recommendation submitted by'some commenters was that

- the regulations apply only to the physicalintake structures themselves and not 

### to entrainment, damage within other parts of the cooling system.

The terms of the Act and the legisla- tive historyrelated tosection 316(b) indicate that thebest technology available for cooling water intake structures be used for minimizing any adverse en--

- ironmental impact. The Development Document has been enlarged to include factors relatingtotheentrainment prob- lem which, as commenters noted, Is of environmental concern, and which realIstically" cannot be separated from intake structure capacity or location.

(9) A commenter recommended that the timeperiod bdidentified over which the percentage of flow atributable to coolingis tobecalculated. I

The definition: of the term "cooling water'intake structure" indicates that the major portion of the water directed through the structure is to absorb waste heat.An adequate period of time should beused tominimizshort termwateruse variations. This periodof time should be at least twelve months, except where shorter periods are warranted. 

### 17389

(10) One commenter criticized the ing changes have b-en made in the omission of energy penalties associated re~zlatlon. with operdtion ofsomeclosed cycle cool- The terms "location." "dezign," "coning systems and suggested that the struction," and "capacity" havebeen deAgency should address this cost as well fined. Also, the effort to mare n e--
as thecapital costs ofconstruction. plicit distinction betreennew andexistThe Agency has undertaken an eco- ing Intake structures has been deleted nomic analysis of the reaulations In re- because thepropoSed regulation was-un- sponse to this comment and In order to clear. NTevertheless, 2s indicated above,

assess the potential economic effects of the Agency does consider the age ofan installing the best available cooling Intake ctructure to be a relevant factor .water technology on intakestructures at and anticipates that It willbetaT-eninto electric powerplants-which are the account, in the determination of bazt largest industrial users ofcooling water. t-chnoo Yavailable. This analysis addresses the energy and tcs Economic impact. capacity loss costs pf closed cycle cool- Cost data for construction ol various ing, assumingthat these systems were to cooling waterintakestructure modes are be required. The analysis is necescarlly Inluded In theDevelopment Document. tentative since theregulations donotat- An aralysis of the Prolected economic tempt to establish rigid rules governing effects of the regulation on the electric the selection of best technology avail- Power industry, the segment mot likely able. Nevertheless, the analysis indicates to be sgnificantly impacted by these that even under conservative assump- re.ulafons, has been prepared and is tions of the number of plants affected, available from the Agencyupon request. the increase in energy (fuel) consump- Theinflationary impact oftheseregulation is less than onehalf ofone percent tionsl , ,athat analysisindicates, been of total fuel consumption by the power evaluated in compliance with F:ecutive industry. Order No. 11821 and O AB Circular A- (11) It was suggested that the In- 107.
formation and data collection require- 4a) kialerulemin g 

### In consideration of the foregoing. 40 ments for the intake structure deter- CFr Chapter 1, Subchapter N, ParT 4Q1 minations under section 316(b) be co- is herebyamended and anew Part-152 is ordinated with those of section 316(a) estabiz ed to readas set forth below, to which addresses the environmental ef- eaective May2G, 1976. fects ofheat In the discharge of cooling water. Dated:April 16, 1976.

TheAgency agrees thatduplication In Rtss-LE.Tpz=, the collection of biological and hydro- Administrator. logical data should be avoided. To the extent thatrelevant data are assembled 0 CIM. Chapter 1 Is amended as in connection with 316(a) proceedings, follows:

or other studies, they shouldbe used in 1. Part 401 Is amended by adding making-determinations pursuant to sec- §l401.14 to read as set forth below tion 310(b). However, the Agency' re- §4 jects therelated suggestion thata deter- 

### 01.14 Coingwaterinlakc Stuctures. mination under section 310(a) that the The location, design, construction and thermal component of a discharge will caracity of cooling water intake strucnot disrupt the balanced indigenous tures of any Point source for which a aquatic community in the receiving standard Is establizhed pursuant to see- waters shouldbe conclusive forpurposze tlon 301 or 306 of-theAct shal reflect of 316(b). In some cases, the data avail- the best technology available forminiable in 316(a) proceedings will not be miring adverse environmental impact sufficient to make a Judgment as to 316 in accordance wIth theprovisions of-Part (b) concerns. Even where the data are 402ofthischapter. complete, however, the conclusion In a 2. Part402is added, torcad a fci-T,: 316(a) hearing should not necessarily sec. govern theoutcome of316(b). Certainly, 49o.lo A7pnuebity. -theAgency would notdeny a request for 402.11 Speciolized definitiznz. less stringent thermal effluent 

### lmita- 402.12 B tccl ooczy available for cc;:rg 

### tions under 316(a) where the necessary -.. tcr1utTzferU=- statutory showing had been made be- AMrnaccrry: EcZ. 201, 30-, 316(b), end cause of entrainment effects of the ro1(o), FederaiWterPoluton ControlAct, plant's 

### intake structure. Similarly, tho a3 amended (33 

### U.S.C. 1311, 1316. IS23(b) Agency should not be precluded 

### from and 121(a)): 3 Ztn.t BI6 et cq-; PFa. L. addressing evident entrainment prob- 02-C01, lems simply because the plant's thermal c402
.10 Applicabilit

. effluent is notItselfenvironmentally un- Tha p- sotsatr.

. acceptable. The concerns of the two P.a;

. rns of t .isp-r are ap-lisections are different and the legal

- cable to colnng water intake structures 

### standards by which compliance with lortPtors .r es f r ich e uent their requirements is to be judged are limitions EM or stab s puroanco similarly distinct. ceclon Z01 orsndardsofperformance
are established pursunnt to section 309 (b) Revis on of the proposcd regula- oftheAct. tionprior topromulgation.

As aresult of public comment and a § 402.11 Specialized deAnitions. continuing review and evaluation ofthe Forthepurposeofthispar&: proposedregulation by EPA,the follow- (a) The tern "cooling water intake

FEDERAL REGISTER, VOL 41, NO. 81-MONDAY, APRIL 26, 1976

HeinOnline -- 41 Fed. Reg. 17389 1976RULES AND REGULATIONS

structure" shall mean the total structure used to direct water into the components of the cooling systems wherein the cooling function is designated to take place, provided that the intended use of the majorportion of thewater so directed is to absorb waste heat rejected from the process or processes employed or from auxiliary operations on the premises, including air conditioning. (b) The term "location" shall mean the-position or site occupied by the cooling waterintake structure. (c) The term "design" shall mean the arrangement of elements that make up thecooling waterintake structure. (d) The ternf "construction" shall

mean the *process of physically con- structingthe cooling water intake structure, including site preparation.

(e) The term "capacity" shall mean the maximum withdrawal rate of water through the cooling water intake structure.

(f) The term "Development Document" shall mean the document entitled "Development Document for Best Technology Available for the Location, Design, Construction and Capacity of Cooling Water Intake Structures for Minimizing Adverse Environmental Impact", published by the U.S. Environmental Protection Agency. § 402.12 ]iest technology available for coolingwater intake structures.
The information contained in the Development Document shall be considered in determining whether the location, design, construction and capacity of a cooling water intake structure of A point

source subject to standards established under Section 301 or 306 reflect thebest technology available for minimizing ad-

verse environmental impact.

[FR Doc.76-11877 Filed 4-23--76;8:45 ami

Title45-PublicWelfare CHAPTER I-OFFICEOF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

, PART 16pg-ARTS EDUCATION PROGRAM

The Office of Education issues regulations governing grant awards to State and local educational agencies for arts education programs in elementary and secondary schools. The grants are intended to encourage and to assist in establishing, conducting, and improving arts programs as an integral part of the regular curriculum of elementary and secondary schools.

Notice of proposed rulemaking was published in the FEDERAL REGISTER on June 30, 1975 (40 FR 27486-91) proposing to add a newPart 160g to provide application criteria and procedures and to define the activities for which funds may be used under Section 409 of Pub. L. 93-380 (20 U.S.C. 1867). Interested
persons were given 30 days in which to submit written comments, suggestions or objections.

A. Summary. Section 409 of Pub. L. 93-380 provides as follows:

"TheCommissloner-shall, duringthe period beginning after June 30, 1974 and ending on June 30, 1978, through arrangements made with the John F. Kennedy Center for the Performing Arts, carry out a program of grants and contracts toencourage and assist Stateandlocal educational agencies to establish and conductprograms in which the arts
are an integral part of elementary and secondary school programs * * *"

The statute authorizes a very limited
amountofFederal assistance fortheprogram. Pub.L. 94-94 provides $750,000 for fiscal year 1976. In order to best carry out the statutory purpose of making the
arts an "integral part of elementary and secondary school programs," the Commissioner-of Education has set forth the basic elements of an effective program. To complete successfully for assistance under this regulation, an educational agency must establish or maintain in a particular elementary or secondary school an arts education program with the elements spelled out in § 160g.3(c). Federal funds support activities (such as the employment ofspecial staff orartists in residence) specifically related to such

a school program. It is anticipated that the schools receiving assistance will

serve as models for other schools.

Subpart A of the regulation contains general provisions that apply equally to State and local programs. These include the basic elements of an arts education program, a description of eligibility, the reservation of funds, and other general provisions. The role of the John F. Kennedy Center for the Performing Arts is described in §160g.7, including technical and staff assistance, training and information, as well as assistance in the review of applications and evaluation of particular projects.

Subparts B and C of the regulation deal with local educational agency and State educational agency applications, respectively. Roughly analogous provisions relating to each type or application appear in each subpart. They relate to activities, application requirements, and thecriteria for selection of applications. In addition, some provisions that relate solely to either local or State educational agencies are found in these subparts.

B. Public comment and changes in regulation. Many comments were submitted to the Office of Education in response to the notice of proposed rule making. Most of the comments were favorable to the central concept of arts education as an integral part of elementary and secondary education. Three comments resulted in significant changes
to the regulation. (1) One commenter suggested thatthe definition of"arts" in §160g.2 be changed to the broader andmore detailed definition of the term as set forth in section 3(b) of the National Foundation on the Arts and the Humanities Act (Pub. L. 89-209). The Office of Educatioji agrees, and the definition has been changed accordingly. " (2) One commenter questioned the role of theKennedy Center and inquired

as to how its staff was selected to review applications for assistance ufider Part 160g. The role of the Kennedy Center Is described in §160g.7. The Office of Education has revised §160g.7 to inake it clear that the Kennedy Center may uto its resources as it deems appropriate to carry out its functions under this progrant. Selection of staff is the sole r- sponsibility of the Kennedy Center.

(3) Several commenters suggested that the regulation specifically encour- age arts education programs for handicapped children, While all students, Including handicapped students, would be involved In any program approved for a grant, §§ 160g.2, 160g.16, and 160g,26 havebeen revised toemphasize andfacilitate theinclusion ofthe handicapped in theprogram. Section 160g.2 has beenre- vised to include a definition of handicapped children. Sections 160g,16 and 166g.26, which cover the criteria for se- lection of applications from local and State educational agencies, respectively, have been changedto include consideration of the extent of activities speeally designed to encourage the participation of handicapped children in local agency programs, and the recognition of the specialneeds of handicapped children In Stateagency programs.

In addition to these three naJor changes, typographical and editorial corrections and technical changes have been made, and the regulation has been substantially reorganized, simplified, and shortened.

C. Response to other coments. A number of comments were considered which did not result in change in the regulation because the commenters sug- gestedchanges which the Office of VEducation believes are beyond Its authority under the Act, relate to matters already covered bytheregulation, or suggestinitiativesbeyond the scope oftheprogram at current funding levels. The major comments which did not result in changes are summarized and discussed in greater detail below. (References are to sections in the final regulation.)

1. §160g.2'Deflnitilons;§160g.3 Eligi- bility. Several commenters suggested that definitions of "local educational agency" and "State educational agency" be broadened to include such agenoles

as nonprofit corporations providing educational radio and television programs and regional arts councils, therebymaking these entities eligible for direct Federalsupport.

-

These changes are beyond the scope of the Act. While the terms "local educational agency" and "State educational agency" are used but not defined in Seetion 409, they are defined In numerous other Statutes relating to aid to education, including the Elementary and Seeondary Education Act (20 U.S.C. 881 (f), (k)). These statutory"definitions havo beenincorporated into theregulation. In the absence of special definitions, tie Commissioner understands that Congress intends these terms to carry the meaning normally ascribed to them in othereducation aidstatutes.

Similarly,a suggestion by several com- menters that the category of eligible parties include arts councilb, alternative schools, and community colleges, as well

as a suggestion that adults (as distinguished from elementary and secondary students) be directly served by the proFEDERAL REGISTER, VOL 41, NO. 81-MONDAY, APRIL 26,- 1976 139f)

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