b. Assurance that the agency has or will have title Sec. to the site, or has the right to construct the specified school facilities on the site and to maintain such facilities on the site for at least twenty years after their construction. c. Assurance that the agency has legal authority to undertake the construction and to finance the non-Federal share of the costs, and assurance that it will have available adequate funds to defray the non-Federal share. d. Assurance that the agency will cause work on the project to be commenced within a reasonable time and completed with the reasonable dilligence. e. Assurance that wages paid to laborers and mechanics engaged in the construction will meet the prevailing local wage rates as determined under the BaconDavis Act. (See 40 U.S.C. Sec's. 276 a-276 a−5 (1958).) f. Assurance that the school facilities of the agency will be available to the children for whose education Federal contributions under this law will be provided on the same terms, in accordance with the laws of the State of the agency, as they are available to other children in the school district of the agency. g. Assurance that the agency will from time to time. before the completion of the project submit such reports relating to the project as the Commissioner may reasonably require. 2. Approval of the application. The Commissioner of 636 (b) (2) Education is to approve the application when he finds the following: a. That the required contents are present in the ap- 636(b)(2) plication, and that approval of the project would not result in payments in excess of the Federal share or a determined "maximum payment." (See section D.1.d., above.) b. That the project is not inconsistent with over all State plans for the construction of school facilities as determined by consultation with State and local educational agencies. c. That there are sufficient Federal funds available 636 (b) (2) to pay the Federal share of the cost of the project and of all other projects for which Federal funds have not already been obligated and applications for which have been given a higher priority. (The order of priority referred to is to be prescribed by the Commissioner, on *633 the basis of relative urgency of need, whenever appropriated funds for the payment of the Federal share of the cost are less than is required to meet the payments for approved applications, for which funds have not yet been obligated.) d. Application may be approved at any time after 636(b)(2) filing and without regard to the established priority if the Commissioner determines (1) that the urgency of the agency's need is likely to qualify it for payments when FEDERAL ASSISTANCE FOR EDUCATIONAL PURPOSES the priority is established and (2) that the number of children in the increase (as determined under Section D.1., above) is in large measure attributable to children who reside or will reside in housing newly constructed on Federal property. 3. Disapproval as entitling agency to hearing. No application is to be disapproved in whole or in part until the Commissioner of Education has afforded the local educational agency reasonable notice and opportunity for hearing. G. Method of payment; return of unexpended funds 1. Method of payment. After approval of the application of any local educational agency, the Commissioner of Education is to pay to such agency an amount equal to ten per cent of the Federal share of the cost of the project. When the final drawings and specifications of the project have been approved, and the construction contract entered to, the remainder of the funds are to be paid in installments. 2. Return of unexpended funds. Any funds paid to a local educational agency under this law and not expended for the purposes for which paid are to be repaid to the Secretary of the Treasury. II. Withholding of payments for noncompliance; judicial review of Commissioner's action 1. Withholding of payments. The Commissioner of Education is authorized to withhold payments to a local educational agency, after reasonable notice and opportunity for hearing, when he finds (a) that there is a failure to comply with the specifications and drawings for the project, or (b) that funds paid to the agency have been diverted from their assigned purpose, or (c) that any assurance contained in the agency's application has not been carried out. Payments may be so withheld until the agency corrects the situation, or repays the Federal funds that have been diverted or improperly expended. 2. Judicial review of Commissioner's action. The final refusal of the Commissioner to approve an application, or to cease the withholding of payments, is to be subject to judicial review in accordance with the provisions of the Administrative Procedure Act. (See 5 U.S.C. Sec. 1001 et seq. (1958).) 1. Effect of the law on appropriations for the same purpose but authorized elsewhere. The law prohibits the making available to any department or agency of the United States of any appropriations for the same purposes as this law, except where authorized under this law. J. Administration of the law Sec. 642 (b) 642 (c) 1. The Commissioner of Education is charged with the administration of the law, and he is to report annually to the Congress on such administration. He is authorized to make regulations and perform functions 642 (b)) as he finds necessary to carry out the provisions of the law, but the law prohibits any agency, officer, or em- 642 (a) ployee of the United States from exercising any direction, supervision, or control over the personnel, curriculum, or program of instruction of any school or school system. 2. Pursuant to proper agreements with any other Fed- 643 (a) eral department or agency, he is authorized to utilize the services and facilities of such departments and agencies; to delegate to officers or employees of these, the performance of his functions, and to pay for such utilization or delegation. He is to exercise this authority whenever it will avoid the duplication of existing available staffs and facilities. 3. Federal departments and agencies that are related 643 (b) to the Federal property or activities for which the assistance is given, are to comply with requests of the Commissioner. 4. With respect to assuring the compliance with the 642 (a) minimum wage requirements (see Section F. 1. e., above), the Secretary of Labor is to prescribe appropriate standards, regulations, and procedures to be followed, and is to cause investigations to be made as he deems desirable. K. Definitions and qualifications of essential terms 1. The term "Federal property" is defined in substantially the same terms as it is under the law providing for "Financial Assistance for Areas Affected by Federal Activities," P.L. 874. This is also true for the terms "State educational agency," "local educational agency," "State," "child," "parent," "free public education." For these definitions, see section J. under the digest of that law. 2. "Membership of schools." This is to be determined 645 (5) in accordance with State law, or in absence of such, in accordance with regulations of the Commissioner. Except that where a local educational agency has made arrangements with another agency to pay tuition for the free public education of a child of its school district in the other agency's schools, the membership child, by agreement, may be considered as a member of the school of the agency receiving the tuition payments; in the absence of agreement, the membership of the child is to be that of a school of the agency making the payment. Sec. 645 (6) 645 (7) 645 (8) 645 (9) 645 (10) *645 (15) 645 (16) 3. The "average per pupil cost of constructing minimum school facilities." This is to be determined by the Commissioner of Education on the basis of (a) the contract cost per square foot under contracts for the construction of school facilities (exclusive of costs of site improvements, equipment, and architectural, engineering and legal fees) entered into in the State for the base year designated in the application, (b) increased by a percentage estimated by the Commissioner to represent additional costs for site improvements, equipment, and, architectural, engineering and legal fees, and (c) multiplied by a factor estimated by the Commissioner to represent the area needed per pupil in minimum school facilities. 4. Estimates of membership, and all other determinations with respect to eligibility and maximum amount of payment, are to be made as of the time of the approval of the application for which it is made, and shall be made on the basis of the best information available at the time of the approval. 5. The terms "construct," "constructing," and "construction" include the preparation of drawings and specifications for school facilities, erecting, building, acquiring, altering, remodeling, improving, or extending school facilities, and the inspection and supervision of the construction of school facilities. 6. "School facilities." This term includes classrooms and related facilities, and initial equipment, machinery, and utilities necessary or appropriate for school purposes. The term does not include athletic stadiums, or structures or facilities intended primarily for athletic exhibitions, contests, games, or other events for which admission is to be charged to the general public. Except as used for purposes of Sections D. 3., and E, above, the term does not include interests in land and off-site improvements. 7. Whether or not school facilities are minimum school facilities is to be determined by the Commissioner of Education, after consultation with the State and local educational agencies, in accordance with regulations prescribed by him. 8. "Base year." This term means the regular school year preceding the fiscal year in which an application was filed, or the regular school year preceding the school year in which the application was filed. Except that, in the case of an application based on the membership of Category "B" or "C" children, the base year can in no event be later than the regular school year 1960-1961. 9. "Increase period." This term means the period of two consecutive regular school years immediately following the "base year." 239 (e) II. Legislative background: Selected major pro- Beo. visions by statute, and citations to the sections of the United States Code affected by each A. Financial assistance for areas affected by Federal activities: The original Act, Public Law 874 (1950): 64 Stat. 1100 (1950), 20 U.S.C. Sections 236– 1953 Amendment: 67 Stat. 530 (1953), 20 U.S.C. Sections 237-241, 1955 Amendment: 69 Stat. 713 (1955), 20 U.S.C. Sections 237- 1956 Amendments: 70 Stat. 909 (1956), 20 U.S.C. Sections 238, 241, 70 Stat. 970 (1956), 20 U.S.C. Sections, 237- 1958 Amendment: 72 Stat. 559 (1958), 20 U.S.C. Sections, 237- 1959 Amendment: 73 Stat. 144 (1959), 20 U.S.C. Sections 238 (d), 1960 Amendments: 74 Stat. 89 (1960), 20 U.S.C. Sections 241 (a), 74 Stat. 414 (1960), 20 U.S.C. Sections 238 (d), 1961 Amendment: 75 Stat. 759 (1961), 20 U.S.C. Sections 237 (a), B. School construction in areas affected by Federal activities: The original Act, Public Law 815 (1950): 64 Stat. 967 (1950), formerly Sections 251-255, 1958 Amendment: 72 Stat. 548, 20 U.S.C. Sections 631-645 (1958). 73 Stat. 144 (1959), 20 U.S.C. Section 645 1960 Amendment: 74 Stat. 89 (1960), 20 U.S.C. Sections 640, 1961 Amendment: 75 Stat. 759 (1961), U.S.C. Sections 633, |