attends or would attend is within the maximum commuting distance established by the State; and (c)(1) The programs of instruction offered or that can be offered meet standards for State accreditation or approval. (2) If the State does not have standards for accreditation or approval, the Secretary applies standards established by an appropriate accreditation association. (Authority: 20 U.S.C. 640) § 221.92 For what types of children does the Secretary make arrangements for the provision of facilities under section 107? (a) The Secretary makes arrangements for the provision of facilities under section 10 of the Act for the number of children (1) Who, the Secretary estimates in any fiscal year, will reside on Federal property at the end of the next fiscal year; and (2) For whom minimum school facilities are unavailable because of the circumstances described in § 221.90(a) (1) or (2). (b) The Secretary may make arrangements for the provision of facilities under section 10 of the Act for the following: (1) Children who do not reside on Federal property, if— (i) The children reside with a parent employed by the United States; (ii) The minimum school facilities the Secretary provides are situated on Federal property in Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, or the Virgin Islands; and (iii) The Secretary, after consultation with the appropriate SEA, determines that (A) The construction or provision of the facilities is appropriate to carry out the purposes of the Act; (B) No LEA is able to provide minimum school facilities for the suitable free public education of these children; and (C) English is not the primary language of instruction in schools in the locality; (2) Children of members of the Armed Forces-Army, Navy, Air Force, Marine Corps, Coast Guard-on active duty, if (i) The schools in which free public education is usually provided for these children are made unavailable to the children because of official action by State or local government authority; and (ii) The Secretary, after consultation with the appropriate SEA, determines that no LEA is able to provide a suitable free public education for these children. (c) Ineligible children. The Secretary does not make arrangements for the provision of facilities under section 10 for the following: (1) Children who reside on Federal property formerly under the control of the Atomic Energy Commission and now under the control of the Department of Energy. (2) Indian children attending federally operated Indian schools. (Authority: 20 U.S.C. 640) § 221.93 For what types of projects may the Secretary provide assistance under section 10? (a) The types of projects for which the Secretary may provide assistance under section 10 of the Act during any given year include, but are not restricted to, one or more of the following: (1)(i) Emergency repairs to existing facilities for which the Secretary is responsible under section 10 of the Act. (ii) As used in paragraph (a)(1)(i) of this section, the term emergency repairs means those repairs necessary(A) For the safety of persons using the facilities; (B) For the removal of architectural barriers to the handicapped; or (C) For the prevention of further deterioration of the facilities. (2)(i) Non-emergency upkeep and maintenance of existing facilities for which the Secretary is responsible under section 10 of the Act. (ii) As used in paragraph (a)(2)(i) of this section, upkeep and maintenance may include site improvements. (3) Upgrading of existing facilities for which the Secretary is responsible under section 10 of the Act, if the purpose of the upgrading is to (i) Improve curriculum; or (ii) Improve facilities to meet the standards of minimum school facilities. (4) Provision of temporary facilities on Federal property pending (i) Emergency repairs; or (ii) Construction of new minimum school facilities needed as a result of flood, fire, or other emergency. (5) Construction of new minimum school facilities. (b)(1) In the case of assistance for any type of project described in paragraphs (a)(1), (2), (3), and (4) of this section, the Secretary (i) Determines the extent to which assistance is needed and the urgency with which the assistance is needed; and (ii) If necessary, notifies any other agency that might be affected by the determination. (2) The Secretary makes these determinations, also, in the case of assistance for a project described in paragraph (a)(5) of this section if the need for the project results from a flood, fire, or other emergency. (c) Except in cases of projects needed as a result of a flood, fire, or other emergency, if the Secretary in any given year decides to fund requests for assistance for the construction of new minimum school facilities, the Secretary announces the closing dates for the submissions of requests in a notice published in the FEDERAL REGISTER. (Authority: 20 U.S.C. 640) § 221.94 How does the Secretary compute priority indices and rank non-emergency requests for new facilities under section 10? (a) The provisions of this section apply if, in any given year, the Secretary (1) Decides to fund requests for assistance under section 10 of the Act for the construction of new minimum school facilities, except for facilities needed as a result of a flood, fire, or other emergency; and (2) Is unable to provide full funding of all requests. (b) The Secretary (ii) The provisions of this § 221.94; and (2) Ranks each request in descending order of priority starting from the highest index. (c) The numbers of children the Secretary uses in computing the priority index are the estimated numbers as of the end of the next fiscal year. (d) The steps the Secretary uses in computing the priority index are as follows: (1) Step 1. The Secretary divides— (i) The number of children to be housed in the school facilities described in the request; by (ii) The total number of children who both reside on and attend school on the Federal property. (2) Step 2. (i) The Secretary divides— (A) The number of unhoused children; by (B) The total number of children who both reside on and attend school on the Federal property. (ii) The Secretary limits the result of Step 2 to a number that does not exceed the result of Step 1. The Secretary does this to ensure that a priority index is not distorted by large numbers of unhoused children who would not be accommodated by the facilities described in the request. (3) Step 3. The Secretary adds— (i) The result of Step 1; to (ii) The result of Step 2. (4) Step 4. The Secretary multiplies the result of Step 3 by 100. (e) If two or more requests have identical indices, the Secretary ranks these requests in decending order of subpriority indices computed according to the following steps: (1) Step 1. The Secretary divides— (i) The number of children to be housed in the school facilities described in the request; by (ii) The total number of children who both reside on and attend school on the Federal property. (2) Step 2. The Secretary multiplies the result of Step 1 by 100. (Authority: 20 U.S.C. 640) § 221.95 What terms and conditions apply to minimum school facilities operated under section 10 by another agency? If the Secretary makes arrangements for the provision of minimum school facilities under section 10 of the Act, the Secretary (a) Arranges for the operation of the facilities by an agency other than the Department; (b) Establishes terms and conditions for the operation of the facilities; and (c) May require the operating agency to submit assurances and enter into other arrangements that the Secretary specifies. (Authority: 20 U.S.C. 640) § 221.96 What terms and conditions apply to the transfer of minimum school facilities by the Secretary to an LEA? If the Secretary decides to transfer to an LEA facilities that has been used to carry out the purposes of section 10 of the Act and for which the Secretary is responsible, the Secretary establishes the terms and conditions for the transfer. (Authority: 20 U.S.C. 640) Sec. 222.54 Determinations by the Secretary pursuant to section 6. 222.55 Notice of Secretary's action. 222.56 Arrangements under section 402(a). 222.57 Expenditures. 222.58 Reports. 222.59 Termination of arrangements. 222.59a Elected school board required. Subpart G-Determinations Under Section 5(d)(1) and (2) 222.60 Scope and purpose. 222.61 Treatment of State aid programs in general. 222.62 General qualifying standard for State aid programs. 222.63 Disparity standard. 222.64 Wealth neutrality test. 222.65 Consideration for exceptional cir cumstances. 222.66 Proportion of funds that may be taken into consideration. 222.67 Assurances in applications. 222.68 Submissions and consultations. 222.69 Notice and opportunity for hearing. Subpart H-Provisions Related to Handicapped Children and Children With Specific Learn- » ing Disabilities 222.70 What are the scope and purpose of these regulations? 222.71 What definitions apply to this subpart? 222.72 What requirements must an LEA meet in order to count a handicapped child for purposes of section 3(d)(2)(C)? 222.73 What assurances and certifications regarding handicapped children must an LEA provide in its application? 222.74 What restrictions and requirements apply to the use of the additional payments under section 3(d)(2)(C)? 222.75 How does section 3(d)(2)(C) relate to State aid programs? 222.76 When may an LEA count children in private schools or residential programs for the purposes of section 3(d)(2)(C)? 222.77 What other statutory and regulatory requirements are relevant to section 3(d)(2)(C)? Subpart I-Standards for Determining 222.80 Payments to local educational agencies. 222.81 Free public education. Subpart J-Provisions for Section 2 222.90 What are the scope and purpose of these regulations? Sec. 222.91 What definitions apply to this subpart? 222.92 What financial data are used to determine eligibility and entitlement under section 2? 222.93 Who is eligible for section 2 assistance? 222.94 What criteria must be met regarding Federal acquisition of real property in a school district? 222.95 What constitutes a substantial and continuing financial burden? 222.96 When is an LEA not substantially compensated from Federal activity? 222.97 What financial assistance is an LEA entitled to under section 2? 222.98 How is an LEA's section 2 maximum entitlement determined? 222.99 How is an estimated current assessed value established for Federal property? 222.101 How is an LEA's section 2 needbased entitlement determined? 222.102 How are section 2 eligibility and entitlement determined for an LEA formed by consolidation of school districts? 222.103 How are section 2 overpayments recovered? Subpart K-Provisions for Section 3(d)(2)(B) 222.120 What are the scope and purpose of these regulations? 222.121 What financial data from LEAs are used to determine eligibility, entitlement, and payment under section 3(d)(2)(B)? 222.122 What LEAS are eligible for financial assistance under section 3(d)(2)(B)? 222.123 How does a State's equalization program affect an LEA's eligibility for section 3(d)(2)(B) assistance? 222.124 How does the Secretary determine whether a fiscally independent LEA is making a reasonable tax effort? 222.125 What information must be provided by the State educational agency? 222.126 What tax rates does the Secretary use if real property is assessed at different percentages of true value? 222.127 What tax rates does the Secretary use if two or more different classifications of real property are taxed at different rates? 222.128 What tax rates may the Secretary use if substantial local revenues are derived from local tax sources other than real property taxes? 222.129 How does the Secretary determine whether a fiscally dependent LEA is making a reasonable tax effort? Sec. 222.130 How does the Secretary determine whether an LEA lacks sufficient funds to enable it to provide a level of education equivalent to that provided by its generally comparable LEAs? 222.131 How does the Secretary determine an LEA's maximum entitlement under section 3(d)(2)(B)? 222.132 How does the Secretary determine an LEA's payment under section 3(d)(2)(B)? APPENDIX TO PART 222 AUTHORITY: 20 U.S.C. 236-241-1 and 242244, unless otherwise noted. SOURCE: 40 FR 16032, Apr. 8, 1975, unless otherwise noted. Redesignated at 45 FR 77368, Nov. 21, 1980, and amended at 53 FR 5553, Feb. 24, 1988. Subpart A-Scope and Definitions § 222.1 Scope. The regulations in this part govern the provision of financial assistance and the making of arrangements under the Act with regard to local educational agencies in areas affected by Federal activities. (Authority: 20 U.S.C. 242(b)) § 222.3 Definitions. As used in this part: Act means Titles I (except section 7) and IV of Pub. L. 874, 81st Congress (20 U.S.C. 236-241-1, 242-244), as amended. Applicant means any local educational agency that files an application for financial assistance under section 2, 3, or 4 of the Act and the regulations in this part. For purposes of sections 3 and 4, a State educational agency may be an applicant only if the State agency directly operates and maintains facilities for providing free public education for the children it claims in its application. (Authority: 20 U.S.C. 240(a) and 244(6)) Application means a properly completed and executed “Application for School Assistance in Federally Affected Areas" filed by an applicant requesting financial assistance under section 2, 3, or 4 of the Act and the regulations in this part, including amendments to the application and any supporting documents indicated by the applicant. (Authority: 20 U.S.C. 240(a), 242(b)) Arrangements means an agreement entered into between the Secretary and a local educational agency or a Federal department or agency for the provision of free public education under section 6 of the Act. (Authority: 20 U.S.C. 241(a)) County means, for the purpose of computing entitlement under section 3 of the Act and payments under section 5 of the Act as well as for the purpose of this part, those divisions of a State utilized by the Secretary of Commerce in compiling and reporting data regarding counties, subject to the following qualifications: (1) Where a municipality or other political subdivision of a State is not treated as part of a county by the Secretary of Commerce in compiling and reporting data regarding counties, those municipalities and other political subdivisions are regarded as separate counties; and (2) Where a local educational agency is situated in more than one county, the term county in the phrase "in the county in which the school district of such agency is located" includes any county in which the local educational agency is situated in whole or in part. (Authority: 20 U.S.C. 238(a)(b) and note; 20 U.S.C. 244(11); 88 Stat. 534) Current expenditures means expenditures for free public education, including expenditures for administration, instruction, attendance and health services, pupil transportation services, plant operation and maintenance, fixed charges, and expenditures to cover deficits for food services and student body activities. The term does not include expenditures for community services, capital outlay, debt service, or any expenditures made from funds granted for the purpose of Chapters 1 and 2 of Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 2701-2976). An expenditure for the replacement of equipment is considered to be either a current expenditure or capital outlay, whichever is in |