(4) 34 CFR Part 78 (Education Appeal Board) if the Secretary refers to the Education Appeal Board a request for an administrative hearing under section 11(a) of the Act.

(5) 34 CFR Part 79 (Intergovernmental Review of Department of Education Programs and Activities).

(b) The regulations in 34 CFR Part 218 (Hearings in Connection with School Construction and Financial Assistance in Federally Impacted Areas). (c) The regulations in this Part 221. (Authority: 20 U.S.C. 3474)

§ 221.4 Under what circumstances may the Secretary waive or reduce requirements?

(a) The Secretary may waive or reduce certain requirements of this part-governing an LEA's eligibility to participate in the School Construction Program or limiting the amount of payment an LEA may receive under the program-if the Secretary determines that a waiver or reduction is necessary:

(1) To avoid inequity; and

(2) To avoid defeating the purposes of the Act.

(b) The general provisions that apply to the waiver or reduction of certain requirements are in § 221.43.

(c) The specific requirements that the Secretary may waive or reduce and the circumstances under which the Secretary may waive or reduce these requirements are identified in applicable provisions of this part.

(Authority: 20 U.S.C. 635, 639, 644)

State educational agency (SEA)

(b) Definitions in EDGAR. The following terms used in this part are defined in 34 CFR Part 77 (Definitions that Apply to Department Regulations):

Applicant Application Award Department EDGAR Equipment Fiscal year Grant Grantee

Project Secretary Work of art

(c) Definitions that apply to this part. The following definitions also apply to this part: "Act" means Pub. L. 81-815, as amended, 20 U.S.C. 631647.

"Attendance area" means the geographic area in which the children normally served by a school reside. (Authority: 20 U.S.C. 635(e), 644 (a), (b), (c)) "Average daily membership means: (1) The definition given to that term by State law; or

(2) If State law does not define the term, the total days of membership of all pupils in an LEA's schools divided by the total number of days the schools were in session.

(Authority: 20 U.S.C. 645(5))

"Facilities available to the LEA." (1) This term means classrooms and related facilities, such as the follow

ing, which the Secretary considers in determining an LEA's need for assistance under this part:

(i) Existing school facilities constructed for educational purposes and currently suitable for instruction.

(ii) All school facilities for which a construction contract has been awarded before the contracts-let-date-that is, the date on which the Secretary files with the Office of the Federal Register a notice setting a closing date for receipt of preapplications.

(iii) Facilities constructed or to be constructed, contracted for, or supported with financial assistance under any other grant under the Act-that is, under the School Construction Program or under the Program of School Construction Assistance in Cases of Certain Disasters (section 16 of the Act—or under any other type of assistance.

(iv) Portable facilities used for instruction if:

(A) The facilities were purchased with funds under the Act; or

(B) The State counts the facilities as instructional facilities for the purpose of computing State construction aid.

(v) If the LEA is applying under section 8, 14(a), or 14(c) of the Act, potential facilities available to the LEA that could be built using, local, State, or other Federal sources, including other funds under the Act.

(2) This term does not mean:

(i) Areas unsuitable for education, such as hallways and basement rooms not constructed for educational purposes; and

(ii) Facilities that must be abandoned by the end of the second year following the increase period, for applicants under sections 5, 8(1), and 9, or by the end of the second year following the school year for which the applicant seeks assistance, for applicants under section 14.

(Authority: 20 U.S.C. 631, 634, 645(10))

"Federally connected children" means those children whose inclusion in an LEA's membership results from a permanent or temporary Federal activity. Each of these children can be identified in one or more of the categories listed in § 221.11.

(Authority: 20 U.S.C. 238(a), 644(a))

"Isolated" means, with reference to an attendance area, that distance, topography, climate, traffic conditions, or another factor makes it impracticable to transport children in that attendance area to other school facilities.

(Authority: 20 U.S.C. 635(e), 644 (a), (b), (c)) "Membership."

(1) This term means:

(i) The definition given to the term by State law; or

(ii) If State law does not define the term, the number of children listed on an LEA's current enrollment records.

(2) As used in paragraph (1)(ii) of this definition, this term does not include children who have:

(i) Permanently left the school district; or

(ii) Otherwise became ineligible to attend classes there.

(3) If a child resides in the school district of an LEA that pays tuition to another LEA in whose district the child attends school, the child is counted in:

(i) The membership of the LEA of the child's district of residence; or

(ii) If both LEAS agree and the Secretary approves, the membership of the LEA in whose district the child attends school.

(Authority: 20 U.S.C. 645(5))

"Minimum school facilities."

(1) This term means those school facilitites for which the Secretary may provide assistance under this part if:

(i) The Secretary, after consultation with the SEA and the LEA, considers these facilities necessary to support an educational program:

(A) For the membership to be served at normal capacity; and

(B) In accordance with the laws and common practice in the State; and

(ii) To the extent appropriate in view of the uses to be made of the facilities, they are accessible to and usable by handicapped persons.

(2) The term includes, but is not restricted to:

(i) Classrooms and related facilities; and

(ii) Machinery, utilities, and initial equipment, to the extent that these

are

necessary

school purposes.

or

appropriate for (3) The Secretary also considers the term to include:

(i) Works of art at a cost that does not exceed one percent of the cost of the project;

(ii) Within school buildings, spaces that:

(A) Provide shelter from nuclear fallout; and

(B) Are constructed at a nominal cost as part of a larger project; and

(iii) In the case of an application under section 9 or 10 of the Act, offsite improvements and interests in land.

(Authority: 20 U.S.C. 639, 640, 644, 645 (9), (10), E.O. 11490)

"Non-Federal

share" means that

portion of a project's cost supplied by a source or sources other than the Secretary under the Act.

(Authority: 20 U.S.C. 635)

"Normal capacity" means the number of pupils a school facility accommodates under ordinary conditions according to the laws and common practice of the State in which the facility is located.

(Authority: 20 U.S.C. 634, 645(9), (10))

"Temporary," with reference to an activity, means an activity of the United States:

(1) Carried on either directly or through a contractor; and

(2) Continuing for at least one year but not more than six years.

(Authority: 20 U.S.C. 635, 639)

"Unhoused children" means those children in an LEA's membership whose number exceeds the normal capacity of facilities available to the LEA.

(Authority: 20 U.S.C. 634, 640, 644, 645(10))

"Uniformed services."

(1) This term means the Army, Navy, Air Force, Marine Corps, Coast Guard, Natinal Oceanic and Atmospheric Administration, and Public Health Service.

(2) This definition applies to a uniformed service of the United States. (Authority: 20 U.S.C. 238(a)(2), 635(a) (1)(A), (2)(A); 37 U.S.C. 101)

Subpart B-What Are the Specific Eligibility Requirements for Assistance Under the School Construction Program?

ELIGIBILITY UNDER SECTION 5 OF THE Аст

§ 221.10 What are the requirements for eligibility under section 5 of the Act? (a) An LEA is eligible to receive Federal financial assistance under section 5 of the Act if the Secretary determines that, during an increase period-that is, a period of four consecutive school years-the LEA has experienced or will have experienced a substantial increase in the number of federally connected children.

(b) In calculating the increase in federally connected children the LEA shall meet the requirements of §§ 221.11 through 221.13.

(Authority: 20 U.S.C. 635, 645(16))

§ 221.11 What children may be counted as federally connected?

(a) An LEA may count as federally connected those children whom the LEA can identify in one or more of the six categories describe in paragraphs (a) (1) through (6) of this section. The statutory reference for each category appears in parentheses after the title of the category.

(1) Category 1 (section 5(a)(1)(A) of the Act). A child is in category 1 if the child

(i)(A) Resides on Federal property; and

(B) Has a parent on active duty in the uniformed services; or

(ii) Resides on Indian lands.

(2) Category 2 (section 5(a)(1)(B) of the Act). A child is in category 2 if the child

(i) Resides on Federal property; and (ii) Resides with a parent employed on Federal property situated in whole or in part in the same State as the school district of the LEA.

(3) Category 3 (section 5(a)(2)(A) of the Act). A child is in category 3 if the child

(i) Does not reside on Federal property; and

(ii) Has a parent on active duty in the uniformed services.

(4) Category 4 (section 5(a)(2)(B) of the Act). A child is in category 4 if the child

(i) Resides on Federal property; and (ii) Is not in either category 1 or category 2.

(5) Category 5 (section 5(a)(2)(C) of the Act). A child is in category 5 if the child

(i) Does not reside on Federal property; and

(ii) Resides with a parent employed on Federal property that is situated in whole or in part in the same State as the school district of the LEA.

(6) Category 6 (section 5(a)(3) of the Act). A child is in category 6 if the child's membership in the LEA results directly from activities of the United States carried on either directly or through a contractor.

(b) Although the LEA may identify a child for eligibility purposes within more than one category, the LEA may not count the child more than once for purposes of payment under this program during a given year.

(c) In counting federally connected children for its eligibility, an LEA may include

(1) Children whose membership results from permanent Federal activities (eligibility under section 5 of the Act); and

(2) Children whose membership results from temporary Federal activities (eligibility under section 9 of the Act).

(NOTE.-Although an LEA in establishing its eligibility for assistance under section 5 of the Act may count children who qualify under section 9 of the Act, the Secretary does not include for payment under section 5 those children who qualify under section 9. See § 221.60(a)(c)(1).)

(Authority: 20 U.S.C. 238(a), (b), 635(a), 639).

§ 221.12 How does an LEA measure an increase?

(a) An LEA that claims an increase in federally connected children must show that the increase has occurred during an increase period.

(b) An increase in federally connected children is the difference between(1) The estimated number of federally connected children in the LEA's

membership at the close of the increase period; and

(2) The estimated number of federally connected children in the LEA's average daily membership during the base year; that is, during the school year immediately preceding the first year of the increase period.

Example. If the increase period covers the four consecutive school years of 1980-81, 1981-82, 1982-83, and 1983-84, the base year would be 1979-80.

(Authority: 20 U.S.C. 634, 635)

§ 221.13 What is the required minimum increase in the number or percentage of an LEA's federally connected children?

To be eligible for assistance under section 5 of the Act, an LEA must have, at the close of an increase period, an estimated increase in federally connected children, as follows:

(a) Categories 1-5. For children in categories 1 through 5, the estimated increase must be

(1) At least 20 federally connected children, representing at least 6 percent of the LEA's total average daily membership during the base year; or

(2) At least 1,500 federally connected children, if the estimated increase represents less than the 6 percent required in paragraph (a)(1) of this section.

(b) Category 6. For children in category 6, the estimated increase must be

(1) At least 20 federally connected children, representing at least 10 percent of the LEA's total average daily membership during the base year; or

(2) At least 2,500 federally connected children, if the estimated increase represents less than the 10 percent required in paragraph (b)(1) of this section.

(Authority: 20 U.S.C. 635(a), (b), (c))

§ 221.14 How does an LEA demonstrate financial need if it claims children in Category 6?

If an LEA bases its eligibility on an increased number of children in category 6, the LEA, in addition to meeting the requirements in § 221.13(b), shall demonstrate to the satisfaction of the Secretary that, without Federal

assistance, construction of minimum school facilities for these children would cause an undue financial burden on the LEA's taxing and borrowing authority.

(Authority: 20 U.S.C. 635(c)(2))

§ 221.15

Under what circumstances may an LEA request a waiver or reduction of the minimum increase in the number or percentage of federally connected children?

(a) In applying for assistance under this part, an LEA may request a waiver or reduction of one or more of the following requirements:

(1) The minimum number requirement of 20 in § 221.13(a)(1).

(2) The minimum percentage requirement of 6 in § 221.13(a)(1).

(3) The minimum number requirement of 20 in § 221.13(b)(1).

(4) The minimum percentage requirement of 10 in § 221.13(b)(1).

(b) The Secretary considers the request for a waiver or reduction if the LEA meets the following conditions:

(1) The LEA has an isolated attendance area that is affected by Federal activity.

(2) At the end of the increase period, the LEA will have in its membership federally connected children residing in the isolated attendance area who lack minimum school facilities.

(3)(i) In the case of a request for a waiver or reduction of the minimum percentage requirement of 6 percent in § 221.13(a)(1), or of 10 percent in § 221.13(b)(1), the estimated increase in federally connected membership in the isolated attendance area at the end of the increase period is at least 10 percent of the total average daily membership in the isolated attendance area during the base year.

(ii) In the case of a request for a waiver or reduction of the minimum number requirement of 20 children in § § 221.13(a)(1) or 221.13(b)(1), the estimated increase in the number of the LEA's federally connected children at the end of the increase period is at least 25 percent of the LEA's total average daily membership in the base year.

(c) The general provisions that apply to this waiver or reduction are in § 221.43.

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

[52 FR 16750, May 5, 1987, as amended at 52 FR 28814, Aug. 3, 1987]

ELIGIBILITY UNDER SECTION 9 OF THE Аст

§ 221.20 What are the requirements for eligibility under section 9 of the Act?

An LEA is eligible to receive Federal financial assistance under section 9 of the Act if:

(a) During an increase period the LEA has experienced a substantial increase in the number of federally connected children; and

(b) The Secretary determines that some or all of these children are in the LEA's membership because of a temporary Federal activity.

(Authority: 20 U.S.C. 639)

§ 221.21 What other requirements apply to eligibility under section 9?

The provisions of §§ 221.11 through 221.15 also govern the eligibility of an LEA for Federal financial assistance under section 9 of the Act.

(Authority: 20 U.S.C. 635, 639)

ELIGIBILITY UNDER SECTION 14(A) OF THE ACT

§ 221.24 What are the requirements for eligibility under section 14(a) of the Act?

An LEA is eligible to receive Federal financial assistance under section 14(a) of the Act if it meets the following requirements:

(a) The LEA is providing, or will be providing on completion of the project, free public education to children in its membership who reside on Indian lands.

(b) The LEA is not eligible, under either section 5 or section 9 of the Act, for enough Federal financial assistance to provide minimum school facilities.

(c) Any one of the following three conditions exists:

(1) At least 15 of the LEA's children, constituting at least 33% percent of the LEA's total membership, reside on Indian lands.

(2) The land area of Indian lands constitutes at least one-third of the