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 forth below.

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,

Deputy Administrator.

1. In § 3.400, pdragraph (a) (3) (W and

(iii) is revised to read as follows:

§ 3.400 General

(0) Death beneilts. A • *

(3) Dependency and indemnity com- pensation-() Deaths prior to January 1,

1957 (§ 3.702). Date of receipt of election.

(iii) Deaths on or after May 1, 1957

(in-service waiver eases; §§ 3.5(b) (3)

and 3.702). Date of receipt of election.

2. in § 3.656, paragraph (d) is revised to

read as folldws:

§ 3.696 Disappearance of veteran.

(d) When any veteran has disappeared

for 90 days or more and his (or her)

whereabouts remain unknown to members of his (or her) family and the Veterans Administration, any pension under

Pub. L4 86-211 (73 Stat. 432) or SpanishAmerican War pension which the veteran

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, with respect to permanent

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 of pension 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 indemnity compensation.

(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,

the award of dependency and Indemnity

compensation will be made subject to an

offset of payments of death compensation

or benefits under the Federal Employees,'

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

based on the death of another spouse thA

award will be made subject to an offset

of payments of death pension or compensation, or dependency and indemnity

compensation over the same period in 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 as follows:

§ 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 38 U.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)

are revised to read as follows:

§ 3.702 Dependency and indemnity contpensation.

(a) -Right to elect. A person who is

eligible for 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 shall be 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

18 years, and elects to receive dependency

and indemnity compensation, the independent award of dependency and indemnity compensatlon to which the child

is entitled will be awarded to or for the

child without separate election by- or for

the child. Should such a widow or widower not elect to receive 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 Plied 4-23-76;8:46 am]

17397

Title 40-Protection of the Environment

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

On December 13, 1973 notice was published in the FEDEmm REuGsTm (38 FR

34410), that the Environmental Protection Agency (EPA or Agency) was proposing regulations concerning determinations to Insure that the location, design, construction, and capacity of cooling water intake structures reflect the

best technolo.y available for minimfzig

adverse environmental Impact.

The purpose of this notice is to establish final regulations regarding cooling

water intake structures by amending 40

CFR Chapter I Subchapter N, Part 401

and by adding a new Part 402. This final

rulemaking is promulgated pursuant to

sections 301, 306, "316(b) and 501(a) of

the Federal Water Pollution Control Act, as amended, (the Act); 33 U.S.C. 1311,

1316, 1326(b) and 1261(a); 86 Stat. 816

etseq.; Pub.L. 92-500.

Section 316(b) of the Act requires that

"any standard established pursuant to

section 301 or section 306 of this Act and

applicable to a point source shall re- quire that the location, design, con- struction, and capacity of cooling water

intake structures reflect the best technology available for minimizing adverse

environmental Impact."'

The regulations set forth below amend

40 CPR Part 401 (General Provisions)

and establish a new part 402. The General Provisions set forth In Part 401 were 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 the provisions of Part 402.

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

Section 402.11 provides definitions for

several of the significant statutory terms -

which appear In Section 316(b) of the

Act.

Section 402.12 provides that the information contained in the Development

Document accompanying these re-ulations Is to be used in .determining com.- pliance with the statutory standard.

The regulations as proposed were supported by a document entitled '"Development Document for Proposed Best Technology Available for MlInimi zing Adverse

Environmental Impact of Cooling Water

Intake SructureS." (December, 1973).

This document was made available to the

ublic and circulated to interested perFEDERAL REGISTER, VOL. 41, NO. 81-MONDAY, APRIL 26, 1976

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

sons at approximately theotime of pub- - verse environmental Impacts. Once such

lication of the notice of proposed'rule- adverse effects have been Identified (or, making. in the case of new structures, pre- Interested persons were Invited to par- dicted) then the effort must be to select

tieipate in the rulemaking by submitting the most effective means of minimizing 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 brief legislative history of sec- 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 days in order to afford a full 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 a formal 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 practicable cost" reflects a Congressional interested parties were described in the concern that the application of "best

preamble to the proposed regulation. The technology available" should not impose 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- ,plant subject to section 316(b). Since the

sponse thereto follows, regulations require a case-by-case deter-

(a) Summary bf Major 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.

Defense Council, Inc.; Dukd Power Com- _ (2) Several commenters recommended

pany; Shell Oil Company; Manufactur- that the Development Document include

Ing Chemists Association; United States specific consideration of the age of faclAtomic 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 for particular establishments.

Indianapolis Power and Light Company; Others suggested that the Agency ex- New York State Department of Envi- plicitly distinguish among the types of

ronmental Conservation; State of Mich- -technology considered the best available

Igan Department of Natural Resources; on the basis of the 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 Section 316(b) requires "that the locaResources Control Board; Common- tfon, design, construction, and capacity wealth Edison Company; Texas Electric of cooling water intake 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 the best technology State of New York Public Service Corn- available are to 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- shire Fish and Game Department; Union tains Information to be used in de- Carbide Corporation; Texaco, Inc.; termining the best technology available. Mobil Oil Corporation; New York Power 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 of Public Health; Tex- ticular industrial categores may be re- aco, Inc.; Northern Indiana Public Serv- ferred to for other factors specific to

ice Company; New England Power Com- point sources within tat category which

pany; State of New York Department of may be relevant to consideration 'of

Law; Debevolse and Liber man. 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 commenters recommended 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 -an assessment of sidered In determining the appropriate the cost of applying a particular tech- cooling water technology. nology in relation to the benefits to be (3) Several commenters recommended

attained, that the construction technology Inforlto comparison of monetary costs with mation be deleted from the Development the social benefits of minimizing 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 of the Corps of Engi- The statute directs the Agency to in- neers primarily relate to hazards to sure that enumerated aspects of cooling navigation. The data in the Development 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, at least for steam electric powerplants located in estuaries and

biologically important coastal areas the

"best technology available" is closed

cycle cooling, since minimization of cooling 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 reduction In rates of 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, Its e-conomic practicability will depend upon considerations relating to Individual industrial plants which are, again, most effectively analyzed on a case by case basis.

While there Is 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 do not support a blanket require- ment that all similarly situated plants reduce the capacity of their intake

structures so as to require conversion to

-recirculating cooling systems.

(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 new intake

structure to those standards. On this

basis, It is urged that the Agency ex- pressly provide that an existing structure

which has minimal environmental impact "reflects" the 'est technology" re- gardless of whether Its design, location

and capaqity conform precisely to the re- lated criteria set forth In the Development Document.

The Agency recognizes that the cost of

modification to existing structures may exceed that of constructing a new intako

structure to comparable standards. The

Agency expects that higher costs assoclated with "retrofitting" existing structures, as well as the relationship of those

costs to the remaining expected useful

life of the facility, will be taken Into account In determining the extent to which

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 1976
RULES AND REGULATIONS

are available at an "economically practicable cost." -6) Some commenters recommended

that the Development Document should

provide that the-proper test for minimizing adverse en'vironmental impact Is re- lated to damage to the aquatic ecosystem

and not to the number of fish and other

aquatic organisms killed or damaged.

Section 316(b) requires that the best

technology available be used to minimize

adverse environmental impacts. As iloted

in the Development Document, there are many factorm that should be considered

when "determining whether an adverse

environmental impact exists or is likely to

exist. The factors noted by the comment- ers are among those to be considered. All

pertinent factors, rather than reliance on a siagle factor, should receive adequate consideration.

(7) Some commenters recommended

that the regulations should not establish

nationally'uniform deadlines for compli- ance.

Inasmuch as the 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 and effluent heat 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 Independently to entrainment damage or that

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 physical intake structures themselves and not

to entrainment, damage within other

parts of the cooling system.

The terms of the Act and the legisla- tive history related to section 316(b) indicate that the best 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 relatingto theentrainment 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 time period bd identified over which

the percentage of flow atributable to

cooling is to be calculated. 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

be used to minimiz short term water use variations. This period of 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 of some closed cycle cool- The terms "location." "dezign," "coning systems and suggested that the struction," and "capacity" have been deAgency should address this cost as well fined. Also, the effort to mare n e-- as the capital costs of construction. plicit distinction betreen new and existThe Agency has undertaken an eco- ing Intake structures has been deleted

nomic analysis of the reaulations In re- because the propoSed 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 of an installing the best available cooling Intake ctructure to be a relevant factor

.water technology on intake structures at and anticipates that It will be taT-en into

electric powerplants-which are the account, in the determination of bazt

largest industrial users of cooling water. t-chnoo Y available.

This analysis addresses the energy and tcs Economic impact.

capacity loss costs pf closed cycle cool- Cost data for construction ol various

ing, assuming that these systems were to cooling water intake structure modes are be required. The analysis is necescarlly Inluded In the Development Document.

tentative since the regulations do not at- 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 Agency upon request.

the increase in energy (fuel) consump- The inflationary impact of these regulation is less than one half of one percent tions l , ,a that analysis indicates, 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

ments for In consideration of the foregoing. 40 the intake structure deter- CFr Chapter 1, Subchapter N, ParT 4Q1 minations under section 316(b) be co- is hereby amended and a new Part-152 is ordinated with those of section 316(a) estabiz ed to read as set forth below, to which addresses the environmental ef- eaective May 2G, 1976.

fects of heat In the discharge of cooling

water. Dated: April 16, 1976.

The Agency agrees that duplication In Rtss-L E. Tpz=, the collection of biological and hydro- Administrator. logical data should be avoided. To the

extent that relevant data are assembled 0 CIM. Chapter 1 Is amended as

in connection with 316(a) proceedings, follows:

or other studies, they should be 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 the related suggestion that a deter- 01.14 Coing water inlakc 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 should be conclusive for purposze tlon 301 or 306 of -the Act shal reflect of 316(b). In some cases, the data avail- the best technology available for miniable in 316(a) proceedings will not be miring adverse environmental impact sufficient to make a Judgment as to 316 in accordance wIth the provisions of-Part

(b) concerns. Even where the data are 402 of this chapter.

complete, however, the conclusion In a 2. Part 402 is added, to rcad a fci-T,:

316(a) hearing should not necessarily sec. govern the outcome of 316(b). Certainly, 49o.lo A7pnuebity. -the Agency would not deny a request for 402.11 Speciolized definitiznz. less stringent thermal effluent l mita- 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), Federai Wter Poluton Control Act, 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 c 402.

10 Applicabilit . effluent is not Itself environmentally 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 lort Ptors .r es f r ich e uent

their requirements is to be judged are limitions or EM stab s puroanc o

similarly distinct. ceclon Z01 or sndards of performance are established pursunnt to section 309 (b) Revis on of the proposcd regula- of the Act.

tion prior to promulgation.

As a result of public comment and a § 402.11 Specialized deAnitions. continuing review and evaluation of the For the purpose of this par&: proposed regulation 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 1976
RULES 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

major portion of the water 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 water intake structure.

(c) The term "design" shall mean the

arrangement of elements that make up

the cooling water intake structure.

(d) The ternf "construction" shall

mean the *process of physically con- structing the 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

cooling water 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 the best

technology available for minimizing ad- verse environmental impact.

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

Title 45-Public Welfare

CHAPTER I-OFFICE OF 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 new Part 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:

"The Commissloner-shall, during the 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 to encourage and assist

State and local educational agencies to establish and conduct programs in which the arts are an integral part of elementary and

secondary school programs * * *"

The statute authorizes a very limited

amount of Federal assistance for the program. 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 of special staff or artists

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 that the

definition of "arts" in § 160g.2 be changed

to the broader and more 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 the Kennedy 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 have been revised to emphasize and facilitate the inclusion of the handicapped in

the program. Section 160g.2 has been re- 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 changed to 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

special needs of handicapped children In

State agency 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- gested changes which the Office of VEducation believes are beyond Its authority under the Act, relate to matters already covered by the regulation, or suggest initiatives beyond the scope of the program

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, thereby making these entities eligible for direct Federal support. -

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

been incorporated into the regulation. In

the absence of special definitions, tie

Commissioner understands that Congress intends these terms to carry the

meaning normally ascribed to them in

other education aid statutes.

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)

HeinOnline -- 41 Fed. Reg. 17390 1976