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provisions of the Act) is at least 15 and represent at least 33 percent of the total number of children for whom the applicant is providing free public education (such percentage requirement may, however, be waived by the Secretary under § 221.35);

(2) The Indian lands in the school district of the applicant represent at least 33% percent of the total land area of the school district; or

(3) The applicant is providing, or upon completion of the school facilities for which provision is made will provide, free public education to 100 or more children who reside on Indian lands located outside the local educational agency.

(20 U.S.C. 644(a)(1))

(b) The requirement contained in section 14(a)(4) of the Act will be deemed to have been met when, in accordance with the provisions of paragraph (d) of § 221.1, the applicant does not have available sufficient funds to provide minimum school facilities for at least 95 percent of the total number of children estimated to be in membership in the applicant's schools as of the end of the second year following the end of the increase period for which the application is filed.

(20 U.S.C. 644(a)(4))

(c) The requirement in section 14(b)(1) of the Act will be deemed to have been met when one of the following conditions exist:

(1) The estimated number of children who reside on Indian lands as of the close of the increase period (for whom the applicant is providing, or upon completion of the school facilities for which provision is made, wil! provide, free public education, and whose membership in the schools of such applicant has not formed and will not form the basis for payments under other provisions of the Act) is at least 15 and represents at least 10 percent of the total number of children for whom the applicant is providing free public education. (Such percentage requirement may, however, be waived by the Secretary under § 221.36);

(2) The Indian lands in the school district of the applicant represent at

least 10 percent of the total land area of such school district; or

(3) The applicant is providing, or upon completion of the school facilities for which provision is made, will provide, free public education to 100 or more children who reside on Indian lands located outside the applicant's school district.

(20 U.S.C. 644(b)(1))

(d) The requirement in section 14(c)(1) of the Act will be deemed to have been met when the following conditions exist:

(1) The total number of children who are inadequately housed by minimum school facilities (for whom the applicant is providing, or upon completion of the school facilities for which provision is made, will provide, free public education, and whose membership in the schools of such applicant has not formed and will not form the basis for payments under other provisions of the Act) is at least 20 and represents at least 33% percent of the total number of children for whom the applicant is providing free public education (such percentage requirement may, however, be waived by the Secretary under § 221.37); and

(2) The Federal property in the school district of the applicant represents at least 33% percent of the total land area of the school district.

(20 U.S.C. 644(c)(1))

(e) The requirement in section 14(c)(4) of the Act will be deemed to have been met when, in accordance with the provisions of paragraph (d) of § 221.1, the applicant does not have available sufficient funds to provide minimum school facilities for at least 95 percent of the total number of children estimated to be in the applicant's schools as of the end of the second year following the end of the increase period for which the application is filed.

(20 U.S.C. 644(c)(4))

Subpart D-Criteria for Waivers Under the Act

§ 221.30 Application for waivers.

Applications for waivers pursuant to section 5(e) of the Act shall be made in accordance with Maximum Grant (ED Form 355). Such application may request a waiver with regard to the entire local educational agency, or any portion thereof, as appropriate.

(20 U.S.C. 635(e))

§ 221.31

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

The Secretary will not, under section 5(e) of the Act, waive or reduce the minimum increase number of 20 in federally connected membership required by section 5(c) unless the conditions set forth in paragraphs (a) through (d) of this section, or that set forth in paragraph (e) of this section, are met:

(a) The applicant would otherwise be eligible for the assistance requested;

(b) The estimated increase in federally connected membership in the increase period is at least 25 percent of the base year total average daily membership;

(c) The local educational agency is located in a remote or isolated area, or the Federal impact is in an attendance area or other geographical area which is located in an isolated or remote part of the local educational agency;

(d) The local educational agency has need for additional classroom facilities or related school facilities in order to provide minimum school facilities for the estimated number of children in the remote or isolated area who will be in the membership of the schools at the close of the increase period covered by the application;

(e) The Secretary determines that other exceptional circumstances exist which in his judgment require such waiver or reduction to avoid inequity and to avoid defeating the purposes of the Act.

(20 U.S.C. 635 (c), (e))

§ 221.32 Criteria for waiver under section 5(e) of percentage requirements for federally connected and nonfederally connected membership in section 5(c).

(a) The Secretary will not, under section 5(e) of the Act, waive or reduce the percentage requirement or requirements in section 5(c) of the Act, waive the requirement contained in the first sentence of section 5(d) of the Act, or reduce the percentage specified in clause (2) of such sentence, unless the conditions set forth in paragraphs (a) (1) through (5) of this section, inclusive, or that set forth in paragraph (a)(6) of this section, are met:

(1) The applicant would otherwise be eligible for the assistance requested;

(2) The applicant specifically states the extent to which it desires the Secretary to exercise his authority to waive or reduce one or more of such requirements and makes appropriate requests therefor, agreeing that if such a request is granted in whole or in part in computing maximum payment under the Act, only membership of children within the federally impacted attendance area shall be considered;

(3) The applicant has two or more attendance areas, and its jurisdictional area is countywide or is sufficiently extensive as to be reasonably analogous to a countywide school system;

(4) In the increase period for which the application is made the Federal impact is equal to at least 10 percent of the average daily membership in the base year in an attendance area or other geographical area which is located in an isolated or remote part of the local educational agency;

(5) The school district is located in a remote or isolated area, or the Federal impact is in an attendance area or other geographical area which is located in a remote or isolated part of the school district;

(6) The Secretary determines that other exceptional circumstances exist which in his judgment require such waiver or reduction to avoid inequity and to avoid defeating the purposes of the Act.

(b) If the Secretary decides to waive or reduce one or more of the require

ments set forth in § 221.31 or paragraph (a) of this section:

(1) The Secretary will determine which requirement or requirements the Secretary will waive, or reduce, and, if the latter, the extent of such a reduction;

(2) The Secretary will determine the geographical area of the applicant which will be considered as constituting the federally impacted attendance area; and

(3) The application will otherwise be processed under the Act and this part, taking into consideration only the federally impacted attendance area determined under paragraph (b)(2) of this section, but in no case will payments under this paragraph exceed the amounts computed for the local educational agency as a whole taking into consideration the waivers or reductions made by the Secretary.

(20 U.S.C. 635 (c) and (e))

§ 221.33 Criteria for waiver under section 5(e) for children residing on Federal property.

(a) The Secretary will not, under section 5(e) of the Act, waive or reduce the percentage increase requirement in section 5(c) of the Act with respect to children residing on Federal property, or waive or reduce the percentage increase requirement in section 5(d) of the Act with respect to nonfederally connected children, unless the conditions set forth in paragraphs (a) (1) through (5) of this section are met:

(1) The applicant would otherwise be eligible for the assistance requested;

(2) The applicant specifically states the waiver it desires or the extent to which it desires a reduction in one or more requirements, and makes an appropriate request therefor in which it agrees that, if such a request is granted in whole or in part, only the Federal property upon which the children reside shall be considered as a federally impacted attendance area in computing maximum payment under the waiver or reduction in requirements and that only children residing on the Federal property constituting the federally impacted attendance area will be considered in determining the in

crease in membership of federally connected children;

(3) There has been an increase in membership of the children residing on the Federal property constituting the federally impacted attendance area in the increase period for which the application is made of at least 50 and equal to at least 8 percent of the average daily membership of such children in the base year, or there are at least 50 more children residing on such Federal property than were estimated to be in the membership of the applicant's schools at the end of the increase period under the last previous application for which payment has been made or may be made;

(4) The applicant has need for additional classrooms or related school facilities on the basis of the local educational agency as a whole, or the school facilities of such applicant are not reasonably accessible to the children residing on the Federal property constituting the federally impacted attendance area because of their location or the infeasibility of transporting the children residing on such Federal property to such facilities; and

(5) The school facilities to be constructed with the funds made available to the applicant upon approval of the waiver will be located on the Federal property or close enough thereto to serve the children residing thereon.

(b) If the Secretary decides to waive or reduce the percentage increase requirement in section 5(c) of the Act with respect to children residing on Federal property, or the percentage increase requirement with respect to nonfederally connected children in section 5(d) of the Act:

(1) The Secretary will determine which requirements the Secretary will waive or reduce and the extent of any such waiver or reduction; and

(2) The Secretary will determine the geographical area of the applicant which will be considered as constituting the federally impacted attendance area; and

under this paragraph exceed the amount computed for the local educational agency as a whole, taking into consideration the waivers or reductions made by the Secretary.

(20 U.S.C. 635 (c), (d), and (e))

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

Waivers of the limitation on the number of federally connected children eligible for payment will be made in accordance with the following standards and procedures:

(a) Waivers for children residing in Federal housing:

(1) The Secretary will determine the geographical area of the applicant which will be considered the federally impacted attendance area;

(2) The application will otherwise be processed under the Act and this part, taking into consideration only the federally impacted attendance area determined under paragraph (a)(1) of this section, but in no case will payments under this paragraph exceed the amounts computed for the local educational agency as a whole taking into consideration the waivers or reductions made by the Secretary.

(3) The applicant must show that, after receiving Federal funds based primarily on the eligibility of children residing in Federal housing and using them to construct school facilities to serve such children, some or all of the Federal housing became nonfederal property, and as a result:

(i) There is a reduction in the number of federally connected children for whom school facilities were constructed;

(ii) Additional Federal housing was or will be constructed in another attendance area of the local educational agency;

(iii) Not less than 8 years after the Federal housing becomes nonfederal property, the increase in a 4-year period in federally connected membership residing in the additional Federal housing is at least 50 and at least 8 percent of the average daily membership of such children in the base year of the increased period;

(iv) The local educational agency has need for additional school facilities for the local educational agency as a whole as of the end of the second year following the increase period for which the application is filed; and

(v) The school facilities to be constructed will be located reasonably close to the area in which the new increase in federally connected membership resides.

(4) The application will be processed taking into consideration only the increase in membership in a 4-year increase period of the children residing in the additional Federal housing. Payment will be limited to providing minimum school facilities for such children estimated to be in membership as of the second year following the increase period.

(b) Waivers for children whose parents are employed in temporary activities on Federal property:

(1) The Secretary will determine the geographical area of the applicant which will be considered the federally impacted attendance area; and

(2) The application will otherwise be processed under the Act and this part, taking into consideration only the federally impacted attendance area determined under paragraph (b)(1) of this section, but in no case will payments under this paragraph exceed the amounts computed for the agency as a whole taking into consideration the waivers or reductions made by the Secretary;

(3) The applicant must show that, after receiving Federal funds based primarily on the membership of children whose parents were engaged in temporary activities on Federal property (such as the construction of a dam, power station, highway, or reclamation project) such funds were used to provide school facilities to serve primarily the children whose parents were so engaged; the temporary activity on Federal property was completed or greatly reduced, and as a result, the following conditions exist:

(i) The children whose parents were engaged in such temporary activities have moved out of the area;

(ii) Not less than 8 years after the temporary activity on Federal property was completed or greatly reduced,

ments set forth in § 221.31 or paragraph (a) of this section:

(1) The Secretary will determine which requirement or requirements the Secretary will waive, or reduce, and, if the latter, the extent of such a reduction;

(2) The Secretary will determine the geographical area of the applicant which will be considered as constituting the federally impacted attendance area; and

(20 U.S.C. 635 (c) and (e))

§ 221.33 Criteria for waiver under section 5(e) for children residing on Federal property.

(1) The applicant would otherwise be eligible for the assistance requested;

crease in membership of federally connected children;

(1) The Secretary will determine which requirements the Secretary will waive or reduce and the extent of any such waiver or reduction; and

(2) The Secretary will determine the geographical area of the applicant which will be considered as constituting the federally impacted attendance area; and

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