the President has declared a major disaster; or

(2) The date of the pinpoint disaster. (c) Change in information included in the application. The LEA shall promptly inform the Secretary of any change in the information included in its application that would affect eligibility for assistance or the amount of a grant.

(d) New application each year in certain cases. In order to receive continuing assistance for payment of current operating expenses or replacement of lost revenues (Section 7(a) of Pub. L. 81-874), the LEA shall file a new application during-and for each-of the fiscal years following the initial application.

(20 U.S.C. 241-1(d), 636 (a), (b), 646(c))

§ 219.22 State certification of applications. (a) For major disasters. The SEA's certification of an application related to a major disaster shall contain the following assurances on the authority of the Governor unless the Governor has previously filed these assurances with the Federal Emergency Management Agency:

(1) Assurance that the LEA is located in an area declared by the President as a major disaster area.

(2) Assurance of the LEA's need for Federal disaster assistance.

(3) Assurance that the State or one or more of its political subdivisions will expend an amount of funds the Secretary considers reasonable assist the LEA.

to

(b) For pinpoint disasters. The SEA's certification of an application related to a pinpoint disaster shall contain a request from the Governor for assistance, accompanied by the following assurances:

(1) Assurance of the serious damage or destruction of the LEA's school facilities.

(2) Assurance of the LEA's need for Federal disaster assistance.

(3) Assurance that the State or one or more of its political subdivisions will expend an amount the Secretary considers reasonable to assist the LEA. The assurance must include a statement of the amount of funds available for expenditure.

(4) Assurance that the disaster site has been investigated by appropriate State or local officials who have determined

(i) That the disaster was not caused by negligence or malicious action; or

(ii) If the cause of the disaster is unknown, that no evidence indicates the disaster was caused by negligence or malicious action.

(20 U.S.C. 241-1(a), (d), 646(a), (c))

Subpart D-How a Grant Is Made

§ 219.31 Review of an application: Consideration of other resources available to an applicant.

(a) Review of application. The Secretary reviews a properly completed application and considers other resources available to an applicant in order to determine the applicant's eligibility for assistance and the amount of assistance that would be reasonable.

(b) Resources to be considered. Other resources available to the applicant include, but are not limited to(1) State assistance; (2) Local assistance;

(3) Federal assistance in addition to that provided under this program; (4) Insurance proceeds; and

(5) Interest earned on resources listed in paragraph (a)(1) through (4) of this section.

(c) Special rule in certain cases. Other resources available to an applicant for assistance related to restoration or replacement of minimum school facilities (Section 16 of Pub. L. 81-815) also include

(1) The proceeds of bonds voted specifically for restoration or replacement of a destroyed or seriously damaged facility; and

(2) The greater of

(i) An amount the State requires an LEA to set aside in a related insurance program or mandatory reserve fund;

or

(ii) All unobligated or unencumbered non-Federal funds that the Secretary determines have been set aside by the LEA in a related insurance program, monetary reserve fund, or other comparable fund.

(20 U.S.C. 241-1(a)(3), 646(a)(4)(5))

(a) General. the Secretary funds eligible applications from appropriations provided by the Congress under the two respective Acts that authorize the program-Pub. L. 81-815 and Pub. L. 81-874. This results in these two separate appropriations:

(1) Funds that may be used for eligible applications that relate to the restoration or replacement of minimum school facilities (Pub. L. 81-815).

(2) Funds that may be used for all other eligible applications (Pub. L. 81874).

NOTE: In certain cases, Congress appropriates funds that may be used to fund only certain types of eligible applications. For example, in recent fiscal years, Congress has appropriated funds for LEAS damaged by major disasters but has not appropriated funds for LEAS damaged by pinpoint disast

ers.

(b) Funding of eligible applications. Normally, the Secretary awards a grant to each application of a type for which Congress has appropriated funds as soon as the Secretary determines the application is eligible for payment. However, if the funds Congress appropriates are insufficient to fund all of a number of applications that are potentially eligible, the Secretary awards as many grants as possible according to the priorities described in this section.

(20 U.S.C. 646(c), 241-1(d))

(c) Priorities for applications related to restoration or replacement of school facilities. If the amount of funds ap

propriated for eligible applications that relate to restoration or replacement of minimum school facilities is insufficient to permit the award of a grant to all these applications, the Secretary awards as many grants as possible in the following order of priority:

(1) Applications for situations in which students must be relocated. First the Secretary funds those applications that relate to situations in which an LEA must relocate students because of a disaster.

(i) The Secretary determines relative priority among these applications by computing for each application the following percentage, then ranking applications in descending order of priority from the highest to the lowest computed percent:

Number of students requiring relocation

LEA's total current membership

(ii) If an application relates to a major disaster as a result of which private school students require relocation, the percentage in paragraph (c)(1)(i) of this section is computed by including these students both in the number of students requiring relocation and in the LEA's total current membership.

(2) Applications for situations in which it is unnecessary to relocate students. After the Secretary funds applications requiring the relocation of students, the Secretary funds remaining applications. The Secretary determines relative priority among these remaining applications by computing for each application the following percentage, then ranking applications in descending order of priority from the highest to the lowest computed percent:

Estimated Federal assistance required for the project described in the application

Estimated unused bond capacity of the LEA on the date of the disaster

(If the LEA's bond capacity is not limited by statute, the Secretary considers this capacity to be limited to 12 percent of the LEA's assesse valuation of real property)

(20 U.S.C. 646(c))

(d) Priorities for applications not related to restoration or replacement of school facilities. If the amount of funds appropriated for eligible applications that do not relate to restoration or replacement of minimum school facilities is insufficient to permit the award of a grant to all these applications, the Secretary awards as many grants as possible in the order of priority established by this method:

(1) The Secretary computes for each application the following percentage: Estimated Federal assistance required for the project described in the application

The LEA's current operating expenses for the fiscal year preceding the disaster (2) Applications are then ranked in descending order of priority from the highest to the lowest computed percent.

(20 U.S.C. 241-1(d))

§ 219.41

Subpart E-Eligible Costs

Eligible costs for assistance related to replacement of instructional and maintenance supplies, equipment, and materials; minor repairs; or provision of temporary school facilities (Section 7(b) of Pub. L. 81-874).

(a) Secretary's approval. A grantee may apply grant funds only to

(1) Costs that the Secretary approves in advance; or

(2) Costs that the Secretary approves retroactively because they were necessarily incurred as emergency measures immediately prior to, during, or subsequent to a disaster.

(b) Eligible costs. Among the costs the Secretary approves as eligible for payment are reasonable costs related to the following items:

(1) Preventive work. Preventive work done on or immediately adjacent to a school site in anticipation of or during the disaster, if the work could reasonably have been expected to minimize damage.

(2) Work performed by a grantee's maintenance employees. Work must be related to the disaster and performed

by a grantee's maintenance employees in addition to-not in place of-their regular duties.

(3) Installation of utilities. Installation costs for utilities in temporary or leased facilities.

(4) Replacement of equipment. (i) Assistance in replacing movable equipment-including vehicles-if the equipment, when purchased, was essential to school operations, and if it would cost more to repair the equipment than to replace it.

(ii) If a school bus is being replaced, the Secretary determines the amount of assistance by deducting from the cost of replacement the salvage value of the bus and any available insurance proceeds and State transportation assistance.

(5) Off-site work. Off-site work to permit emergency access to damaged school facilities, if the work is consistent with State law and is not the responsibility of another unit of local government.

(6) Trees, shrubs, and ground cover. Replacement of trees and shrubs by the size of plantings customarily made on the site of new school facilities in the State, and of ground cover by seeding, unless sod is the only effective replacement.

(7) Architectural and engineering fees. Architectural and engineering fees that relate to a repair or replacement authorized by the program.

(8) Repair of school facilities under construction or renovation and of those that are temporary or obsolete. (i) Repair of school facilities that, at the time of the disaster, were under construction or revnovation, if the cost of repair is not covered by insurance.

(ii) Temporary or obsolete facilities may be repaired unless prior to the disaster the LEA took formal action to replace them.

(9) Repair of school facilities damaged during disaster recovery. Repair of school facilities necessarily damaged during disaster recovery activities to reestablish school operations.

(10) Temporary facilities. Provision of temporary facilities, including the purchase of necessary operating equipment.

(11) Insurance on temporary portable classroom units that are purchased by the grantee.

(12) Necessary demolition of facilities and removal of debris.

(13) Emergency repairs to prevent further damage to a facility or to make it immediately available for education.

(20 U.S.C. 241-1(a)(b))

(c) Ineligible costs. The Secretary does not approve any costs related to the following:

(1) Acquisition of land.

(2) A gymnasium, stadium, or similar facility primarily intended for events that include an admission charge to the general public.

(3) Latent damages not reported to the Secretary within six months of the date the Secretary receives the LEA's application.

(20 U.S.C. 241-1(b), 244(13))

(d) Effect of insurance coverage. (1) Eligible costs include only the amount of the LEA's expenses that exceeds any insurance proceeds on the damaged or destroyed supplies, equipment, materials, and facilities.

(2) A grantee shall prosecute insurance claims promptly and fully. (20 U.S.C. 241-1(a)(b))

§ 219.42 Eligible costs for restoration or replacement of school facilities (Section 16 of Pub. L. 81-815).

(a) Secretary's approval. A grantee may apply grant funds only to items described in its project application that the Secretary approves as eligible for payment.

(b) Eligible costs. (1) The Secretary approves reasonable costs to restore or replace any of the following minimum school facilities to a condition similar to that before the disaster:

(i) Classrooms and related facilities. (ii) Fixed equipment, machinery, and utilities.

(iii) (A) An auditorium or gymnasium or both if it is justified by the size and educational program of the LEA and by standards and practices in the State.

(B) The capacity of the facility may exceed the membership of the school only if the LEA pays all additional

costs associated with the increased capacity.

(iv) Air conditioning if it is justified by standards and practices in the State.

(2) The Secretary also approves reasonable costs related to the following items:

(i) Works of art-if their cost does not exceed one percent of a project's cost.

(ii) Design features that provide appropriate access and use by handicapped persons.

(iii) Design features that afford appropriate protection against personal injuries from future disasters.

(c) Ineligible costs. The Secretary does not approve any costs related to(1) Purchase of an interest in land; (2) Off-site improvements;

(3) A gymnasium, stadium, or similar facility primarily intended for events that include an admission charge to the general public; or

(4) Emergency repairs to prevent further damage to a facility or to make it immediately available for education.

NOTE: However, that these costs related to emergency repairs are eligible under

§ 219.41(b)(13) (Eligible costs for assistance related to replacement of instructional and maintenance supplies, equipment, and materials; minor repairs; or provision of temporary facilities (Section 7(b) of Pub. L. 81– 874)).

(5) Latent damages not reported to the Secretary within six months of the date the Secretary receives the LEA's application.

(20 U.S.C. 645(9)(10), 646(a))

(d)(1) Effect of insurance coverage. Eligible costs include only the amount of the LEA's expenses that exceeds any insurance proceeds on the damaged or destroyed facilities.

(2) A grantee shall prosecute insurance claims promptly and fully.

(20 U.S.C. 646(a))

§ 219.51

Subpart F-Hearings

§ 219.51 Hearings relating to assistance for restoration or replacement of school facilities (Section 16 of Pub. L. 81-815).

(a) Right to an administrative hearing. This section applies to an LEA that is an applicant or grantee for assistance for restoration or replacement of school facilities. This LEA has a right to an administrative hearing in either or both of the following circumstances:

(1) If the Secretary proposes in whole or in part to disapprove the LEA's application.

(2) If, after a grant has been made, the Secretary acts to withhold payments to the LEA (the circumstances in which this occurs are specified in Section 11(a) of Pub. L. 81-815).

(b) Hearing procedures. The procedures described in 34 CFR Part 218 govern these administrative hearings. (20 U.S.C. 636(c), 641(b))

§ 219.52 Hearings relating to assistance other than restoration or replacement of school facilities (Sections 7(a) and 7(b) of Pub. L. 81-874).

(a) Right to an administrative hearing. This section applies to an LEA that is an applicant or grantee for assistance for other than restoration or replacement of school facilities. This LEA has a right to an administrative hearing if an action of the Secretary affects the LEA adversely or aggrieves the LEA.

(b) Hearing procedures. The procedures described in Section 5(g) of Pub. L. 81-874 and in 34 CFR Part 218 govern these administrative hearings. (20 U.S.C. 240(g))

221.30 Application for waivers. 221.31

Criteria for waiver under section 5(e) of minimum number requirement of 20 in section 5(c).

221.32 Criteria for waiver under section 5(e) of percentage requirements for federally connected and nonfederally connected membership in section 5(c). 221.33 Criteria for waiver under section 5(e) for children residing on Federal property.

221.34 Criteria for waiver under section 5(e) of limitation on number of federally connected children eligible for payment in section 5(f).

221.35 Criteria for waiver of percentage requirement in section 14(a).