### §1068a. Waiver authority and reporting requirement

#### (a) Waiver requirements; need-based assistance students

The Secretary may waive the requirements set forth in section 1058(b)(1)(A) of this title in the case of an institution—

(1) which is extensively subsidized by the State in which it is located and charges low or no tuition;

(2) which serves a substantial number of low-income students as a percentage of its total student population;

(3) which is contributing substantially to increasing higher education opportunities for educationally disadvantaged, underrepresented, or minority students, who are low-income individuals;

(4) which is substantially increasing higher educational opportunities for individuals in rural or other isolated areas which are unserved by postsecondary institutions;

(5) located on or near an Indian reservation or a substantial population of Indians, if the Secretary determines that the waiver will substantially increase higher education opportunities appropriate to the needs of American Indians;

(6) that is a tribally controlled college or university as defined in section 1801 of title 25; or

(7) wherever located, if the Secretary determines that the waiver will substantially increase higher education opportunities appropriate to the needs of Black Americans, Hispanic Americans, Native Americans, Asian Americans, or Pacific Islanders, including Native Hawaiians.

#### (b) Waiver determinations; expenditures

(1) The Secretary may waive the requirements set forth in section 1058(b)(1)(B) of this title if the Secretary determines, based on persuasive evidence submitted by the institution, that the institution's failure to meet that criterion is due to factors which, when used in the determination of compliance with such criterion, distort such determination, and that the institution's designation as an eligible institution under part A is otherwise consistent with the purposes of such parts.1

(2) The Secretary shall submit to the Congress every other year a report concerning the institutions which, although not satisfying the criterion contained in section 1058(b)(1)(B) of this title, have been determined to be eligible institutions under part A which enroll significant numbers of Black American, Hispanic, Native American, Asian American, or Native Hawaiian students under part A, as the case may be. Such report shall—

(A) identify the factors referred to in paragraph (1) which were considered by the Secretary as factors that distorted the determination of compliance with subparagraphs (A) and (B) of section 1058(b)(1) of this title; and

(B) contain a list of each institution determined to be an eligible institution under part A including a statement of the reasons for each such determination.

(3) The Secretary may waive the requirement set forth in section 1058(b)(1)(E) 2 of this title in the case of an institution located on or near an Indian reservation or a substantial population of Indians, if the Secretary determines that the waiver will substantially increase higher education opportunities appropriate to the needs of American Indians.

#### (c) Waiver authority with respect to institutions located in an area affected by a Gulf hurricane disaster

#### (1) Waiver authority

Notwithstanding any other provision of law, unless enacted with specific reference to this section, for any affected institution that was receiving assistance under this subchapter at the time of a Gulf hurricane disaster, the Secretary shall, for each of the fiscal years 2009 through 2011 (and may, for each of the fiscal years 2012 and 2013)—

(A) waive—

(i) the eligibility data requirements set forth in section 1068(d) of this title;

(ii) the wait-out period set forth in section 1059(d) of this title;

(iii) the allotment requirements under section 1063 of this title; and

(iv) the use of the funding formula developed pursuant to section 1063b(f)(3) of this title;

(B) waive or modify any statutory or regulatory provision to ensure that affected institutions that were receiving assistance under this subchapter at the time of a Gulf hurricane disaster are not adversely affected by any formula calculation for fiscal year 2009 or for any of the four succeeding fiscal years, as necessary; and

(C) make available to each affected institution an amount that is not less than the amount made available to such institution under this subchapter for fiscal year 2006, except that for any fiscal year for which the funds appropriated for payments under this subchapter are less than the appropriated level for fiscal year 2006, the amount made available to such institutions shall be ratably reduced among the institutions receiving funds under this subchapter.

#### (2) Definitions

In this subsection:

#### (A) Affected institution

The term "affected institution" means an institution of higher education that—

(i) is—

(I) a part A institution (which term shall have the meaning given the term "eligible institution" under section 1058(b) of this title); or

(II) a part B institution, as such term is defined in section 1061(2) of this title, or as identified in section 1063b(e) of this title;

(ii) is located in an area affected by a Gulf hurricane disaster; and

(iii) is able to demonstrate that, as a result of the impact of a Gulf hurricane disaster, the institution—

(I) incurred physical damage;

(II) has pursued collateral source compensation from insurance, the Federal Emergency Management Agency, and the Small Business Administration, as appropriate; and

(III) was not able to fully reopen in existing facilities or to fully reopen to the pre-hurricane enrollment levels during the 30-day period beginning on August 29, 2005.

#### (B) Area affected by a Gulf hurricane disaster; Gulf hurricane disaster

The terms "area affected by a Gulf hurricane disaster" and "Gulf hurricane disaster" have the meanings given such terms in section 209 of the Higher Education Hurricane Relief Act of 2005 (Public Law 109–148, 119 Stat. 2809).

(Pub. L. 89–329, title III, §392, formerly §352, as added Pub. L. 99–498, title III, §301(a), Oct. 17, 1986, 100 Stat. 1304; amended Pub. L. 100–50, §2(a)(14), (15), June 3, 1987, 101 Stat. 336; Pub. L. 102–325, title III, §305(b), July 23, 1992, 106 Stat. 478; renumbered §392 and amended Pub. L. 105–244, title III, §§301(a)(2), 308(d), Oct. 7, 1998, 112 Stat. 1636, 1649; Pub. L. 110–315, title III, §§318, 320(5), Aug. 14, 2008, 122 Stat. 3185, 3188; Pub. L. 111–39, title III, §301(8), July 1, 2009, 123 Stat. 1938.)

#### **Editorial Notes**

#### References in Text

Section 1058(b)(1)(E) of this title, referred to in subsec. (b)(3), was repealed and section 1058(b)(1)(F) was redesignated section 1058(b)(1)(E) by Pub. L. 102–325, title III, §302(a)(1)(B), (C), July 23, 1992, 106 Stat. 472.

Section 209 of the Higher Education Hurricane Relief Act of 2005, referred to in subsec. (c)(2)(B), is section 209 of title IV of div. B of Pub. L. 109–148, Dec. 30, 2005, 119 Stat. 2808, which is not classified to the Code.

#### Codification

Section was formerly classified to section 1067 of this title prior to renumbering by Pub. L. 105–244.

#### Amendments

2009—Subsec. (a)(6). Pub. L. 111–39 made technical amendment to reference in original act which appears in text as reference to section 1801 of title 25.

2008—Subsec. (b)(2). Pub. L. 110–315, §320(5), substituted "eligible institutions under part A" for "eligible institutions under part A institutions" in introductory provisions. See Codification note above.

Subsec. (c). Pub. L. 110–315, §318, added subsec. (c).

1998—Subsec. (a)(5) to (7). Pub. L. 105–244 struck out "or" at end of par. (5), added par. (6), and redesignated former par. (6) as (7).

1992—Subsec. (a). Pub. L. 102–325 substituted "Secretary may waive" for "Secretary shall waive".

1987—Subsec. (a)(2). Pub. L. 100–50, §2(a)(14), substituted "low-income" for "low- and middle-income".

Subsec. (b)(3). Pub. L. 100–50, §2(a)(15), added par. (3).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2009 Amendment

Amendment by Pub. L. 111–39 effective as if enacted on the date of enactment of Pub. L. 110–315 (Aug. 14, 2008), see section 3 of Pub. L. 111–39, set out as a note under section 1001 of this title.

#### Effective Date of 1998 Amendment

Amendment by Pub. L. 105–244 effective Oct. 1, 1998, except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as a note under section 1001 of this title.

#### Effective Date of 1992 Amendment

Amendment by Pub. L. 102–325 effective Oct. 1, 1992, see section 2 of Pub. L. 102–325, set out as a note under section 1001 of this title.

#### Effective Date of 1987 Amendment

Amendment by Pub. L. 100–50 effective as if enacted as part of the Higher Education Amendments of 1986, Pub. L. 99–498, see section 27 of Pub. L. 100–50, set out as a note under section 1001 of this title.

#### Termination of Reporting Requirements

For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103–7 (in which the last item on page 79 identifies a reporting provision which, as subsequently amended, is contained in subsec. (b)(2) of this section), see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

1 So in original. Probably should be "part."

2 See References in Text note below.