I 

111TH CONGRESS 

1ST SESSION H. R. 3651 

To reauthorize the Impact Aid Program under the Elementary and Secondary 

Education Act of 1965. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 25, 2009 

Mr. BOREN introduced the following bill; which was referred to the Committee 

on Education and Labor 

A BILL 

To reauthorize the Impact Aid Program under the 

Elementary and Secondary Education Act of 1965. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Impact Aid Fairness 

5 and Equity Act of 2009’’. 


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1 SEC. 2. AMENDMENTS TO SECTION 8002 (PAYMENTS RELAT2 ING TO FEDERAL ACQUISITION OF REAL 

3 PROPERTY). 

4 Section 8002 of the Elementary and Secondary Edu5 cation Act of 1965 (20 U.S.C. 7702) is amended to read 

6 as follows: 

7 ‘‘SEC. 8002. PAYMENTS RELATING TO FEDERAL ACQUISI8 TION OF REAL PROPERTY. 

9 ‘‘(a) IN GENERAL.—Where the Secretary, after con10 sultation with any local educational agency and with the 

11 appropriate State educational agency, determines for a fis12 cal year ending prior to October 1, 2003— 

13 ‘‘(1) that the United States owns Federal prop14 erty in the local educational agency, and that such 

15 property— 

16 ‘‘(A) has been acquired by the United 

17 States since 1938; 

18 ‘‘(B) was not acquired by exchange for 

19 other Federal property in the local educational 

20 agency which the United States owned before 

21 1939; and 

22 ‘‘(C) had an assessed value (according to 

23 original records (including reproductions of 

24 those records) documenting the assessed value 

25 of such property (determined as of the time or 

26 times when so acquired) prepared by the local 


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1 official referred to in subsection (b)(3) or, when 

2 such original records are not available due to 

3 unintentional destruction (such as natural dis4 aster, fire, flooding, pest infestation, or deterio5 ration due to age), other records, including 

6 Federal agency records, local historical records, 

7 or other records that the Secretary determines 

8 to be appropriate and reliable) aggregating 10 

9 percent or more of the assessed value of— 

10 ‘‘(i) all real property in the local edu11 cational agency (similarly determined as of 

12 the time or times when such Federal prop13 erty was so acquired); or 

14 ‘‘(ii) all real property in the local edu15 cational agency as assessed in the first 

16 year preceding or succeeding acquisition, 

17 whichever is greater, only if— 

18 ‘‘(I) the assessment of all real 

19 property in the local educational agen20 cy is not made at the same time or 

21 times that such Federal property was 

22 so acquired and assessed; and 

23 ‘‘(II) State law requires an as24 sessment be made of property so ac25 quired; and 


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1 ‘‘(2) that such agency is not being substantially 

2 compensated for the loss in revenue resulting from 

3 such ownership by increases in revenue accruing to 

4 the agency from the conduct of Federal activities 

5 with respect to such Federal property, then such 

6 agency shall be eligible to receive the amount de7 scribed in subsection (b). 

8 ‘‘(b) AMOUNT.— 

9 ‘‘(1) IN GENERAL.—(A)(i)(I) Subject to sub10 clauses (II) and (III), the amount that a local edu11 cational agency shall be paid under subsection (a) 

12 for a fiscal year shall be calculated in accordance 

13 with paragraph (2). 

14 ‘‘(II) Except as provided in subclause (III), the 

15 Secretary may not reduce the amount of a payment 

16 under this section to a local educational agency for 

17 a fiscal year by (aa) the amount equal to the 

18 amount of revenue, if any, the agency received dur19 ing the previous fiscal year from activities conducted 

20 on Federal property eligible under this section and 

21 located in a school district served by the agency, in22 cluding amounts received from any Federal depart23 ment or agency (other than the Department of Edu24 cation) from such activities, by reason of receipt of 


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1 such revenue, or (bb) any other amount by reason 

2 of receipt of such revenue. 

3 ‘‘(III) If the amount equal to the sum of (aa) 

4 the proposed payment under this section to a local 

5 educational agency for a fiscal year and (bb) the 

6 amount of revenue described in subclause (II)(aa) 

7 received by the agency during the previous fiscal 

8 year, exceeds the maximum amount the agency is el9 igible to receive under this section for the fiscal year 

10 involved, then the Secretary shall reduce the amount 

11 of the proposed payment under this section by an 

12 amount equal to such excess amount. 

13 ‘‘(ii) For purposes of clause (i), the amount of 

14 revenue that a local educational agency receives dur15 ing the previous fiscal year from activities conducted 

16 on Federal property shall not include payments re17 ceived by the agency from the Secretary of Defense 

18 to support— 

19 ‘‘(I) the operation of a domestic dependent 

20 elementary or secondary school; or 

21 ‘‘(II) the provision of a free public edu22 cation to dependents of members of the Armed 

23 Forces residing on or near a military installa24 tion. 


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1 ‘‘(B) If funds appropriated under section 

2 8014(a) are insufficient to pay the amount deter3 mined under subparagraph (A), the Secretary shall 

4 calculate the payment for each eligible local edu5 cational agency in accordance with subsection (h). 

6 ‘‘(C) Notwithstanding any other provision of 

7 this subsection, a local educational agency may not 

8 be paid an amount under this section that, when 

9 added to the amount such agency receives under sec10 tion 8003(b), exceeds the maximum amount that 

11 such agency is eligible to receive for such fiscal year 

12 under section 8003(b)(1)(C), or the maximum 

13 amount that such agency is eligible to receive for 

14 such fiscal year under this section, whichever is 

15 greater. 

16 ‘‘(D) Notwithstanding any other provision of 

17 this subsection, a local educational agency may not 

18 be paid an amount under this section that exceeds 

19 the total current expenditures of the agency in the 

20 second prior fiscal year. 

21 ‘‘(E) Notwithstanding any other provision of 

22 this subsection, in fiscal years 2010, 2011, and 2012 

23 a local educational agency may not be paid an 

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1 cent of its payment under this section for the prior 

2 fiscal year. 

3 ‘‘(2) APPLICATION OF CURRENT LEVIED REAL

4 PROPERTY TAX RATE.—In calculating the amount 

5 that a local educational agency is eligible to receive 

6 for a fiscal year, the Secretary shall apply the cur7 rent levied real property tax rate for current expend8 itures levied by fiscally independent local educational 

9 agencies, or imputed for fiscally dependent local edu10 cational agencies, to the current annually deter11 mined aggregate assessed value of such acquired 

12 Federal property. 

13 ‘‘(3) DETERMINATION OF AGGREGATE AS14 SESSED VALUE.—Such aggregate assessed value of 

15 such acquired Federal property shall be determined 

16 on the basis of the highest and best use of property 

17 adjacent to such acquired Federal property as of the 

18 time such value is determined, and provided to the 

19 Secretary, by the local official responsible for assess20 ing the value of real property located in the jurisdic21 tion of such local educational agency for the purpose 

22 of levying a property tax. 

23 ‘‘(c) APPLICABILITY TO TENNESSEE VALLEY AU24 THORITY ACT.—For the purpose of this section, any real 

25 property with respect to which payments are being made 


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1 under section 13 of the Tennessee Valley Authority Act 

2 of 1933 shall not be regarded as Federal property. 

3 ‘‘(d) OWNERSHIP BY UNITED STATES.—The United 

4 States shall be deemed to own Federal property for the 

5 purposes of this Act, where— 

6 ‘‘(1) prior to the transfer of Federal property, 

7 the United States owned Federal property meeting 

8 the requirements of subparagraphs (A), (B), and (C) 

9 of subsection (a)(1); and 

10 ‘‘(2) the United States transfers a portion of 

11 the property referred to in paragraph (1) to another 

12 nontaxable entity, and the United States— 

13 ‘‘(A) restricts some or any construction on 

14 such property; 

15 ‘‘(B) requires that the property be used in 

16 perpetuity for the public purposes for which the 

17 property was conveyed; 

18 ‘‘(C) requires the grantee of the property 

19 to report to the Federal Government (or its 

20 agent) regarding information on the use of the 

21 property; 

22 ‘‘(D) except with the approval of the Fed23 eral Government (or its agent), prohibits the 

24 sale, lease, assignment, or other disposal of the 

25 property unless such sale, lease, assignment, or 


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1 other disposal is to another eligible government 

2 agency; and 

3 ‘‘(E) reserves to the Federal Government a 

4 right of reversion at any time the Federal Gov5 ernment (or its agent) deems it necessary for 

6 the national defense. 

7 ‘‘(e) LOCAL EDUCATIONAL AGENCY CONTAINING

8 FOREST SERVICE LAND AND SERVING CERTAIN COUN9 TIES.—Beginning with fiscal year 1995, a local edu10 cational agency shall be deemed to meet the requirements 

11 of subsection (a)(1)(C) if such local educational agency 

12 meets the following requirements: 

13 ‘‘(1) ACREAGE AND ACQUISITION BY THE FOR14 EST SERVICE.—The local educational agency serves 

15 a school district that contains between 20,000 and 

16 60,000 acres of land that has been acquired by the 

17 Forest Service of the Department of Agriculture be18 tween 1915 and 1990, as demonstrated by written 

19 evidence from the Forest Service satisfactory to the 

20 Secretary. 

21 ‘‘(2) COUNTY CHARTER.—The local educational 

22 agency serves a county chartered under State law in 

23 1875 or 1890. 

24 ‘‘(f) SPECIAL RULE.—(1) Beginning with fiscal year 

25 1994, and notwithstanding any other provision of law limVerDate Nov 24 2008 22:37 Sep 25, 2009 Jkt 079200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3651.IH H3651

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1 iting the period during which fiscal year 1994 funds may 

2 be obligated, the Secretary shall treat the local educational 

3 agency serving the Wheatland R–II School District, 

4 Wheatland, Missouri, as meeting the eligibility require5 ments of section 2(a)(1)(C) of the Act of September 30, 

6 1950 (Public Law 874, 81st Congress) (as such section 

7 was in effect on the day preceding the date of enactment 

8 of the Improving America’s Schools Act of 1994) (20 

9 U.S.C. 237(a)(1)(C)) or subsection (a)(1)(C). 

10 ‘‘(2) For each fiscal year beginning with fiscal year 

11 1999, the Secretary shall treat the Webster School Dis12 trict, Day County, South Dakota as meeting the eligibility 

13 requirements of subsection (a)(1)(C) of this section. 

14 ‘‘(3) For each fiscal year beginning with fiscal year 

15 2000, the Secretary shall treat the Central Union, Cali16 fornia; Island, California; Hill City, South Dakota; and 

17 Wall, South Dakota local educational agencies as meeting 

18 the eligibility requirements of subsection (a)(1)(C) of this 

19 section. 

20 ‘‘(4) For the purposes of payments under this section 

21 for each fiscal year beginning with fiscal year 2000, the 

22 Secretary shall treat the Hot Springs, South Dakota local 

23 educational agency as if it had filed a timely application 

24 under section 8002 of the Elementary and Secondary 

25 Education Act of 1965 for fiscal year 1994 if the SecVerDate Nov 24 2008 22:37 Sep 25, 2009 Jkt 079200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3651.IH H3651

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1 retary has received the fiscal year 1994 application, as 

2 well as exhibits A and B not later than December 1, 1999. 

3 ‘‘(5) For purposes of payments under this section for 

4 each fiscal year beginning with fiscal year 2000, the Sec5 retary shall treat the Hueneme, California local edu6 cational agency as if it had filed a timely application under 

7 section 8002 of the Elementary and Secondary Education 

8 Act of 1965 if the Secretary has received the fiscal year 

9 1995 application not later than December 1, 1999. 

10 ‘‘(g) FORMER DISTRICTS.— 

11 ‘‘(1) IN GENERAL.—Where the school district of 

12 any local educational agency described in paragraph 

13 (2) is formed at any time after 1938 by the consoli14 dation of two or more former school districts, such 

15 agency may elect (at any time such agency files an 

16 application under section 8005) for any fiscal year 

17 after fiscal year 1994 to have (A) the eligibility of 

18 such local educational agency, and (B) the amount 

19 which such agency shall be eligible to receive, deter20 mined under this section only with respect to such 

21 of the former school districts comprising such con22 solidated school districts as such agency shall des23 ignate in such election. 

24 ‘‘(2) ELIGIBLE LOCAL EDUCATIONAL AGEN25 CIES.—A local educational agency referred to in 


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1 paragraph (1) is any local educational agency that, 

2 for fiscal year 1994 or any preceding fiscal year, ap3 plied for and was determined eligible under section 

4 2(c) of the Act of September 30, 1950 (Public Law 

5 874, 81st Congress) as such section was in effect for 

6 such fiscal year. 

7 ‘‘(h) PAYMENTS WITH RESPECT TO FISCAL YEARS

8 IN WHICH INSUFFICIENT FUNDS ARE APPROPRIATED.— 

9 For any fiscal year for which the amount appropriated 

10 under section 8014(a) is insufficient to pay to each eligible 

11 local educational agency the full amount determined under 

12 subsection (b), the Secretary shall ratably reduce the pay13 ment to each local educational agency under subsection 

14 (b). 

15 ‘‘(i) SPECIAL RULE.—For purposes of payments 

16 under this section for each fiscal year beginning with fiscal 

17 year 1998— 

18 ‘‘(1) the Secretary shall, for the Stanley Coun19 ty, South Dakota local educational agency, calculate 

20 payments as if subsection (e) had been in effect for 

21 fiscal year 1994; and 

22 ‘‘(2) the Secretary shall treat the Delaware Val23 ley, Pennsylvania local educational agency as if it 

24 had filed a timely application under section 2 of 

25 Public Law 81–874 for fiscal year 1994. 


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1 ‘‘(j) PRIOR YEAR DATA.—Notwithstanding any other 

2 provision of this section, in determining the eligibility of 

3 a local educational agency for a payment under subsection 

4 (b) or (h)(4)(B) of this section for a fiscal year, and in 

5 calculating the amount of such payment, the Secretary— 

6 ‘‘(1) shall use data from the prior fiscal year 

7 with respect to the Federal property involved, includ8 ing data with respect to the assessed value of the 

9 property and the real property tax rate for current 

10 expenditures levied against or imputed to the prop11 erty; and 

12 ‘‘(2) shall use data from the second prior fiscal 

13 year with respect to determining the amount of rev14 enue referred to in subsection (b)(1)(A)(i). 

15 ‘‘(k) ELIGIBILITY.— 

16 ‘‘(1) OLD FEDERAL PROPERTY.—Except as 

17 provided in paragraph (2), a local educational agen18 cy that is eligible to receive a payment under this 

19 section for Federal property acquired by the Federal 

20 Government, before the date of the enactment of the 

21 Impact Aid Reauthorization Act of 2000, shall be el22 igible to receive the payment only if the local edu23 cational agency submits an application for a pay24 ment under this section not later than 7 years after 

25 the date of the enactment of such Act. 


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1 ‘‘(2) COMBINED FEDERAL PROPERTY.—A local 

2 educational agency that is eligible to receive a pay3 ment under this section for Federal property ac4 quired by the Federal Government before the date of 

5 the enactment of the Impact Aid Reauthorization 

6 Act of 2000 shall be eligible to receive the payment 

7 if— 

8 ‘‘(A) the Federal property, when combined 

9 with other Federal property in the school dis10 trict served by the local educational agency ac11 quired by the Federal Government after the 

12 date of the enactment of such Act, meets the 

13 requirements of subsection (a); and 

14 ‘‘(B) the local educational agency submits 

15 an application for a payment under this section 

16 not later than 7 years after the date of acquisi17 tion of the Federal property acquired after the 

18 date of the enactment of such Act. 

19 ‘‘(3) NEW FEDERAL PROPERTY.—A local edu20 cational agency that is eligible to receive a payment 

21 under this section for Federal property acquired by 

22 the Federal Government after the date of the enact23 ment of the Impact Aid Reauthorization Act of 2000 

24 shall be eligible to receive the payment only if the 

25 local educational agency submits an application for 


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1 a payment under this section not later than 7 years 

2 after the date of acquisition. 

3 ‘‘(l) LOSS OF ELIGIBILITY.— 

4 ‘‘(1) IN GENERAL.—Notwithstanding any other 

5 provision of this section, the Secretary shall make a 

6 minimum payment to a local educational agency de7 scribed in paragraph (2), for the first fiscal year 

8 that the agency loses eligibility for assistance under 

9 this section as a result of property located within the 

10 school district served by the agency failing to meet 

11 the definition of Federal property under section 

12 8013(5)(C)(iii), in an amount equal to 90 percent of 

13 the amount received by the agency under this section 

14 for the preceding year. 

15 ‘‘(2) LOCAL EDUCATIONAL AGENCY DE16 SCRIBED.—A local educational agency described in 

17 this paragraph is an agency that— 

18 ‘‘(A) was eligible for, and received, a pay19 ment under this section for fiscal year 2002; 

20 and 

21 ‘‘(B) beginning in fiscal year 2003 or a 

22 subsequent fiscal year, is no longer eligible for 

23 payments under this section as provided for in 

24 subsection (a)(1)(C) as a result of the transfer 


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1 of the Federal property involved to a non-Fed2 eral entity.’’. 

3 SEC. 3. AMENDMENTS TO SECTION 8003 (PAYMENTS FOR 

4 ELIGIBLE FEDERALLY CONNECTED CHIL5 DREN). 

6 Section 8003 of the Elementary and Secondary Edu7 cation Act of 1965 (20 U.S.C. 7703) is amended— 

8 (1) in subsection (a)— 

9 (A) in paragraph (1), in the matter pre10 ceding subparagraph (A), by inserting after 

11 ‘‘such agency,’’ the following: ‘‘including those 

12 children enrolled in a State that has a State 

13 open enrollment policy (but not including chil14 dren enrolled in a distance learning program 

15 not residing within the defined boundaries of 

16 the agency),’’; 

17 (B) in paragraph (2)— 

18 (i) by redesignating subparagraphs 

19 (D) through (F) as (E) through (G), re20 spectively; 

21 (ii) by inserting after subparagraph 

22 (C) the following: 

23 ‘‘(D) Multiply the number of children de24 scribed in subparagraphs (A) and (B) of para25 graph (1) by a factor of 1.35 if the local eduVerDate Nov 24 2008 22:37 Sep 25, 2009 Jkt 079200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H3651.IH H3651

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1 cational agency has a total student enrollment 

2 of not less than 25,000 students, of which not 

3 less than 50 percent are children described in 

4 paragraph (1) and not less than 6,000 of such 

5 children are children described in subparagraph 

6 (A) and (B) of paragraph (1).’’; 

7 (2) in subsection (b)(2)— 

8 (A) in subparagraph (B)— 

9 (i) in the subparagraph heading by 

10 striking ‘‘CONTINUING’’; 

11 (ii) in clause (i) by striking subclauses 

12 (I) and (II) and inserting the following: 

13 ‘‘(I) is a local educational agency 

14 whose boundaries are the same as a 

15 Federal military installation or the 

16 boundaries are the same as island 

17 property designated by the Secretary 

18 of the Interior to be property that is 

19 held in trust by the Federal Govern20 ment and the agency has no taxing 

21 authority; 

22 ‘‘(II) has an enrollment of chil23 dren described in subsection (a)(1) 

24 that constitutes a percentage of the 


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1 total student enrollment of the agency 

2 that is not less than 45 percent; 

3 ‘‘(III) has a per-pupil expendi4 ture that is less than— 

5 ‘‘(aa) for a local educational 

6 agency that has a total student 

7 enrollment of 350 or more stu8 dents, 150 percent of the average 

9 per-pupil expenditure of the 

10 State in which the agency is lo11 cated; or 

12 ‘‘(bb) for a local educational 

13 agency that has a total student 

14 enrollment of less than 350 stu15 dents— 

16 ‘‘(AA) 150 percent of 

17 the average per-pupil ex18 penditure of the State in 

19 which the agency is located; 

20 or 

21 ‘‘(BB) the average per22 pupil expenditure of three 

23 comparable local educational 

24 agencies in the State in 

25 which the agency is located; 


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1 ‘‘(IV) has a tax rate for general 

2 fund purposes that is at least 95 per3 cent of the average tax rate for gen4 eral fund purposes of comparable local 

5 educational agencies in the State; and 

6 ‘‘(V) for a local educational agen7 cy that has an enrollment of children 

8 described in subsection (a)(1) that 

9 constitutes a percentage of the total 

10 student enrollment of the agency 

11 which is not less than 30 percent, and 

12 has a tax rate for general fund pur13 poses which is not less than 125 per14 cent of the average tax rate for gen15 eral fund purposes for comparable 

16 local educational agencies in the 

17 State;’’; 

18 (iii) by adding at the end the fol19 lowing: 

20 ‘‘(iv) SPECIAL RULE.—Notwith21 standing clause (i)(II), a local educational 

22 agency shall be considered eligible to re23 ceive a basic support payment under sub24 paragraph (A) with respect to the number 


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1 of children determined under subsection 

2 (a)(1) if the agency— 

3 ‘‘(I) has an enrollment of chil4 dren described in subsection (a)(1) 

5 that constitutes a percentage of the 

6 total student enrollment of the agency 

7 that is not less than 35 percent in8 cluding for purposes of determining 

9 eligibility those children described in 

10 subparagraph (F) and (G) of sub11 section (a)(1); and 

12 ‘‘(II) was eligible to receive as13 sistance under this paragraph in fiscal 

14 year 2001.’’; 

15 (B) by striking subparagraphs (C), (D), 

16 and (E); 

17 (C) by inserting after subparagraph (B) 

18 the following: 

19 ‘‘(C) MAXIMUM AMOUNT FOR HEAVILY IM20 PACTED LOCAL EDUCATIONAL AGENCIES.— 

21 ‘‘(i) IN GENERAL.—The maximum 

22 amount that a heavily impacted local edu23 cational agency is eligible to receive under 

24 this paragraph for any fiscal year is the 

25 sum of the total weighted student units, as 


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1 computed under subsection (a)(2) and sub2 ject to clause (ii), multiplied by the greater 

3 of— 

4 ‘‘(I) four-fifths of the average 

5 per-pupil expenditure of the State in 

6 which the local educational agency is 

7 located for the third fiscal year pre8 ceding the fiscal year for which the 

9 determination is made; or 

10 ‘‘(II) four-fifths of the average 

11 per-pupil expenditure of all of the 

12 States for the third fiscal year pre13 ceding the fiscal year for which the 

14 determination is made. 

15 ‘‘(ii) SPECIAL RULE.—(I)(aa) For a 

16 local educational agency with respect to 

17 which 35 percent or more of the total stu18 dent enrollment of the schools of the agen19 cy are children described in subparagraph 

20 (D) or (E) (or a combination thereof) of 

21 subsection (a)(1), and has an enrollment of 

22 children described in subparagraph (A), 

23 (B), or (C) of such subsection equal to at 

24 least 10 percent of the agency’s total en25 rollment, the Secretary shall calculate the 


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1 weighted student units of those children 

2 described in subparagraph (D) or (E) of 

3 such subsection by multiplying the number 

4 of such children by a factor of 0.55. 

5 ‘‘(bb) For any local educational agen6 cy that received a payment under this 

7 clause in fiscal year 2006, the local edu8 cational agency shall not be required to 

9 have an enrollment of children described in 

10 subparagraphs (A), (B), or (C) of such 

11 subsection equal to at least 10 percent of 

12 the agency’s total enrollment. 

13 ‘‘(II) For a local educational agency 

14 that has an enrollment of 100 or fewer 

15 children described in subsection (a)(1), the 

16 Secretary shall calculate the total number 

17 of weighted student units for purposes of 

18 subsection (a)(2) by multiplying the num19 ber of such children by a factor of 1.75. 

20 ‘‘(III) For a local educational agency 

21 that does not qualify under (B)(i)(I) of 

22 this subsection and has an enrollment of 

23 more than 100 but not more than 1,000 

24 children described in subsection (a)(1), the 

25 Secretary shall calculate the total number 


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1 of weighted student units for purposes of 

2 subsection (a)(2) by multiplying the num3 ber of such children by a factor of 1.25. 

4 ‘‘(iii) PAYMENT CAP.—The amount of 

5 such payment to a local educational agency 

6 under this subparagraph shall be no more 

7 than needed to raise the per-pupil expendi8 ture of such local educational agency to the 

9 higher of 110 percent of the State average 

10 per-pupil expenditure of the State in which 

11 the local educational agency is located or 

12 the average per-pupil expenditure of three 

13 comparable local educational agencies.’’; 

14 (D) by redesignating subparagraph (F) as 

15 (D) and, in that subparagraph— 

16 (i) by striking clause (ii); 

17 (ii) by striking ‘‘; and’’ at the end of 

18 clause (i) and inserting a period; and 

19 (iii) by striking ‘‘the Secretary—’’ and 

20 all that follows through ‘‘shall use’’ and in21 serting ‘‘the Secretary shall use’’; 

22 (E) by redesignating subparagraph (G) as 

23 (E) and, in that subparagraph, in the matter 

24 preceding clause (i), by striking ‘‘(C)(i)(II)(bb)’’ 

25 and inserting ‘‘(B)(i)(II)(bb)’’; and 


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1 (F) by redesignating subparagraph (H) as 

2 (F) and, in that subparagraph— 

3 (i) in clause (i)— 

4 (I) by striking ‘‘(B), (C), (D), or 

5 (E),’’ and inserting ‘‘(B) or (C),’’; 

6 (II) by striking ‘‘by reason of’’ 

7 and inserting ‘‘due to’’; 

8 (III) by inserting after ‘‘clause 

9 (iii),’’ the following: ‘‘or as the direct 

10 result of base realignment and closure 

11 or modularization as determined by 

12 the Secretary of Defense and force 

13 structure change or force relocation,’’; 

14 and 

15 (IV) by inserting before the pe16 riod at the end the following: ‘‘or dur17 ing such time as activities associated 

18 with base closure and realignment, 

19 modularization, force structure 

20 change, or force relocation is ongo21 ing’’; and 

22 (ii) in clause (ii)— 

23 (I) by striking ‘‘(D) or (E), as 

24 the case may be,’’ and inserting 

25 ‘‘(C)’’; and 


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1 (II) by striking ‘‘(D) or (E) 

2 under’’ and inserting ‘‘(C) under’’; 

3 (3) in subsection (b)(3)(B)— 

4 (A) by redesignating clause (iv) as (v); and 

5 (B) by inserting after clause (iii) the fol6 lowing: 

7 ‘‘(iv) For any local educational agency 

8 that is providing a program of distant 

9 learning to children not residing within the 

10 legally defined boundaries of the agency, 

11 the Secretary shall disregard such children 

12 from such agency’s total enrollment when 

13 calculating the percentage under subclause 

14 (I) of clause (i) and shall disregard any 

15 funds received for such children when cal16 culating the total current expenditures at17 tributed to the operation of such agency 

18 when calculating the percentage under sub19 clause (II) of clause (i).’’; 

20 (4) in subsection (b)(3)(C) by striking ‘‘or (E) 

21 of paragraph (2), as the case may be’’ and inserting 

22 ‘‘of paragraph (2)’’. 

23 (5) in subsection (b)(3), by amending subpara24 graph (D) to read as follows: 


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1 ‘‘(D) RATABLE DISTRIBUTION.—For any 

2 fiscal year described in subparagraph (A) for 

3 which the sums available exceed the amount re4 quired to pay each local educational agency 100 

5 percent of its threshold payment the Secretary 

6 shall distribute the excess sums to each eligible 

7 local educational agency that has not received 

8 its full amount computed under paragraph (1) 

9 or (2) (as the case may be) by multiplying— 

10 ‘‘(i) a percentage, the denominator of 

11 which is the difference between the full 

12 amount computed under paragraph (1) or 

13 (2) (as the case may be) for all local edu14 cational agencies and the amount of the 

15 threshold payment (as calculated under 

16 subparagraphs (B) and (C) of all local 

17 educational agencies, and the numerator of 

18 which is the aggregate amount of the ex19 cess sums, by: 

20 ‘‘(ii) the difference between the full 

21 amount computed under paragraph (1) or 

22 (2) (as the case may be) for the agency 

23 and the amount of the threshold payment 

24 as calculated under subparagraphs (B) and 

25 (C) of the agency.’’; 


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1 (6) in subsection (c) by amending paragraph 

2 (2) to read as follows: 

3 ‘‘(2) EXCEPTION.—Calculation of payments for 

4 a local educational agency shall be based on data 

5 from the fiscal year for which the agency is making 

6 an application for payment if such agency is newly 

7 established by a State (first year of operation 

8 only).’’; 

9 (7) in subsection (e) by striking paragraphs (1) 

10 and (2) and inserting the following: 

11 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

12 the total amount the Secretary shall pay a local edu13 cation agency received under subsection (b)(1), 

14 (b)(2), or (b)(2)(B)(ii)— 

15 ‘‘(A) for fiscal year 2010 shall not be less 

16 than 90 percent of the total amount that the 

17 local education agency received under sub18 section (b)(1), (b)(2), or (b)(2)(B)(ii) for fiscal 

19 year 2008; 

20 ‘‘(B) for fiscal year 2011 shall not be less 

21 than 80 percent of the total amount that the 

22 local educational agency received under sub23 section (b)(1), (b)(2), or (b)(2)(B)(ii) for fiscal 

24 year 2008; 


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1 ‘‘(C) for fiscal year 2012 shall not be less 

2 than 70 percent of the total amount that the 

3 local educational agency received under sub4 section (b)(1), (b)(2), or (b)(2)(B)(ii) for fiscal 

5 year 2008, of which such amount shall be con6 sidered a foundation payment for each suc7 ceeding fiscal year until such time as the agen8 cy’s maximum payment as determined under 

9 paragraphs (1) or (2) of subsection (b) as the 

10 case may be, exceeds the amount provided for 

11 under this subparagraph. 

12 ‘‘(2) RATABLE REDUCTION.— 

13 ‘‘(A) IN GENERAL.—If the sums made 

14 available under this title for any fiscal year are 

15 insufficient to pay the full amounts that all 

16 local educational agencies in all States are eligi17 ble to receive under paragraph (1) for such 

18 year, then the Secretary shall ratably reduce 

19 the payments to all agencies for such year. 

20 ‘‘(B) ADDITIONAL FUNDS.—If additional 

21 funds become available for making payments 

22 under paragraph (1) for such fiscal year, pay23 ments that were reduced under subparagraph 

24 (A) shall be increased on the same basis as 

25 such payments were reduced.’’; and 


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1 (8) by striking subsection (g). 

2 SEC. 4. AMENDMENTS TO SECTION 8007 (CONSTRUCTION). 

3 Section 8007 of the Elementary and Secondary Edu4 cation Act of 1965 (20 U.S.C. 7707) is amended to read 

5 as follows: 

6 ‘‘SEC. 8007. CONSTRUCTION. 

7 ‘‘(a) SCHOOL FACILITY EMERGENCY AND MOD8 ERNIZATION GRANTS AUTHORIZED.— 

9 ‘‘(1) IN GENERAL.—From 100 percent of the 

10 amount appropriated for each fiscal year under sec11 tion 8014(e), the Secretary— 

12 ‘‘(A) shall award emergency grants in ac13 cordance with this subsection to eligible local 

14 educational agencies to enable the agencies to 

15 carry out emergency repairs of school facilities; 

16 and 

17 ‘‘(B) shall award modernization grants in 

18 accordance with this subsection to eligible local 

19 educational agencies to enable the agencies to 

20 carry out the modernization of school facilities. 

21 ‘‘(2) PRIORITY.—In approving applications 

22 from local educational agencies for emergency grants 

23 and modernization grants under this subsection, the 

24 Secretary shall give priority to applications in ac25 cordance with the following: 


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1 ‘‘(A) The Secretary shall first give priority 

2 to applications for emergency grants from local 

3 educational agencies that meet the requirements 

4 of paragraph (3)(A) and, among such applica5 tions for emergency grants, shall give priority 

6 to those applications from local educational 

7 agencies based on the severity of the emer8 gency, as determined by the Secretary. 

9 ‘‘(B) The Secretary shall next give priority 

10 to applications for modernization grants from 

11 local educational agencies that meet the re12 quirements of paragraph (3)(B) and, among 

13 such applications for modernization grants, 

14 shall give priority to those applications from 

15 local educational agencies based on the severity 

16 of the need for modernization, as determined by 

17 the Secretary. 

18 ‘‘(3) ELIGIBILITY REQUIREMENTS.— 

19 ‘‘(A) EMERGENCY GRANTS.—A local edu20 cational agency is eligible to receive an emer21 gency grant under paragraph (2)(A) if— 

22 ‘‘(i) the agency (or in the case of a 

23 local educational agency that does not have 

24 the authority to tax or issue bonds, the 

25 agency’s fiscal agent)— 


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1 ‘‘(I) has no practical capacity to 

2 issue bonds; or 

3 ‘‘(II) has minimal capacity to 

4 issue bonds and is at not less than 75 

5 percent of the agency’s limit of bond6 ed indebtedness; or 

7 ‘‘(ii) the agency is eligible to receive 

8 assistance under subsection (a) for the fis9 cal year and has a school facility emer10 gency, as determined by the Secretary, 

11 that poses a health or safety hazard to the 

12 students and school personnel assigned to 

13 the school facility. 

14 ‘‘(B) MODERNIZATION GRANTS.—A local 

15 educational agency is eligible to receive a mod16 ernization grant under paragraph (2)(B) if— 

17 ‘‘(i) the agency receives a basic sup18 port payment under section 8003(b) for 

19 the fiscal year; or 

20 ‘‘(ii) the agency receives a federal 

21 properties payment under section 8002 for 

22 the fiscal year. 

23 ‘‘(C) RULE OF CONSTRUCTION.—For pur24 poses of subparagraph (A)(i), a local edu25 cational agency— 


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1 ‘‘(i) has no practical capacity to issue 

2 bonds if the total assessed value of real 

3 property that may be taxed for school pur4 poses is less than $25,000,000; and 

5 ‘‘(ii) has minimal capacity to issue 

6 bonds if the total assessed value of real 

7 property that may be taxed for school pur8 poses is at least $25,000,000 but not more 

9 than $50,000,000. 

10 ‘‘(4) AWARD CRITERIA.—In awarding emer11 gency grants and modernization grants under this 

12 subsection, the Secretary shall consider the following 

13 factors: 

14 ‘‘(A) The ability of the local educational 

15 agency to respond to the emergency, or to pay 

16 for the modernization project, as the case may 

17 be, as measured by— 

18 ‘‘(i) the agency’s level of bonded in19 debtedness; 

20 ‘‘(ii) the assessed value of real prop21 erty per student that may be taxed for 

22 school purposes compared to the average of 

23 the assessed value of real property per stu24 dent that may be taxed for school purposes 

25 in the State in which the agency is located; 


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1 ‘‘(iii) the agency’s total tax rate for 

2 school purposes (or for capital expendi3 tures, if applicable) compared to the aver4 age total tax rate for school purposes (or 

5 the average capital expenditure tax rate, if 

6 applicable) in the State in which the agen7 cy is located; and 

8 ‘‘(iv) funds that are available to the 

9 agency, from any other source, including 

10 subsection (a), that may be used for cap11 ital expenditures. 

12 ‘‘(B) The percentage of property in the 

13 agency that is nontaxable due to the presence 

14 of the Federal Government. 

15 ‘‘(C) The number and percentages of chil16 dren described in subparagraphs (A), (B), (C), 

17 and (D) of section 8003(a)(1) served in the 

18 school facility with the emergency or served in 

19 the school facility proposed for modernization, 

20 as the case may be. 

21 ‘‘(D) In the case of an emergency grant, 

22 the severity of the emergency, as measured by 

23 the threat that the condition of the school facil24 ity poses to the health, safety, and well-being of 

25 students. 


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1 ‘‘(E) In the case of a modernization 

2 grant— 

3 ‘‘(i) the severity of the need for mod4 ernization, as measured by such factors 

5 as— 

6 ‘‘(I) overcrowding, as evidenced 

7 by the use of portable classrooms, or 

8 the potential for future overcrowding 

9 because of increased enrollment; or 

10 ‘‘(II) the agency’s inability to uti11 lize technology or offer a curriculum 

12 in accordance with contemporary 

13 State standards due to the physical 

14 limitations of the current school facil15 ity; and 

16 ‘‘(ii) the age of the school facility pro17 posed for modernization. 

18 ‘‘(5) OTHER AWARD PROVISIONS.— 

19 ‘‘(A) GENERAL PROVISIONS.— 

20 ‘‘(i) LIMITATIONS ON AMOUNT OF

21 FUNDS.— 

22 ‘‘(I) IN GENERAL.—The amount 

23 of funds provided under an emergency 

24 grant or a modernization grant 

25 awarded under this subsection to a 


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1 local educational agency that meets 

2 the requirements of subclause (II) of 

3 paragraph (3)(A)(i) for purposes of 

4 eligibility under subparagraph (A) or 

5 (B) of paragraph (3)— 

6 ‘‘(aa) shall not exceed 50 

7 percent of the total cost of the 

8 project to be assisted under this 

9 subsection; and 

10 ‘‘(bb) shall not exceed 

11 $4,000,000 during any 4-year pe12 riod. 

13 ‘‘(II) IN-KIND CONTRIBUTIONS.— 

14 A local educational agency may use 

15 in-kind contributions to meet the 

16 matching requirement of subclause 

17 (I)(aa). 

18 ‘‘(ii) PROHIBITIONS ON USE OF

19 FUNDS.—A local educational agency may 

20 not use funds provided under an emer21 gency grant or modernization grant award22 ed under this subsection for— 

23 ‘‘(I) a project for a school facility 

24 for which the agency does not have 

25 full title or other interest; 


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1 ‘‘(II) stadiums or other school fa2 cilities that are primarily used for 

3 athletic contests, exhibitions, or other 

4 events for which admission is charged 

5 to the general public; or 

6 ‘‘(III) the acquisition of real 

7 property. 

8 ‘‘(iii) SUPPLEMENT, NOT SUP9 PLANT.—A local educational agency shall 

10 use funds provided under an emergency 

11 grant or modernization grant awarded 

12 under this subsection only to supplement 

13 the amount of funds that would, in the ab14 sence of the Federal funds provided under 

15 the grant, be made available from non16 Federal sources to carry out emergency re17 pairs of school facilities or to carry out the 

18 modernization of school facilities, as the 

19 case may be, and not to supplant such 

20 funds. 

21 ‘‘(iv) MAINTENANCE COSTS.—Nothing 

22 in this subsection shall be construed to au23 thorize the payment of maintenance costs 

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1 ernized in whole or in part with Federal 

2 funds provided under this subsection. 

3 ‘‘(v) ENVIRONMENTAL SAFE4 GUARDS.—All projects carried out with 

5 Federal funds provided under this sub6 section shall comply with all relevant Fed7 eral, State, and local environmental laws 

8 and regulations. 

9 ‘‘(vi) CARRY-OVER OF CERTAIN APPLI10 CATIONS.—A local educational agency that 

11 applies for an emergency grant or a mod12 ernization grant under this subsection for 

13 a fiscal year and does not receive the grant 

14 for the fiscal year shall have the applica15 tion for the grant considered for the fol16 lowing fiscal year, subject to the priority 

17 requirements of paragraph (2) and the 

18 award criteria requirements of paragraph 

19 (4). 

20 ‘‘(B) EMERGENCY GRANTS; PROHIBITION

21 ON USE OF FUNDS.—A local educational agency 

22 that is awarded an emergency grant under this 

23 subsection may not use amounts under the 

24 grant for the complete or partial replacement of 

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1 ment is less expensive or more cost-effective 

2 than correcting the identified emergency. 

3 ‘‘(6) APPLICATION.—A local educational agency 

4 that desires to receive an emergency grant or a mod5 ernization grant under this subsection shall submit 

6 an application to the Secretary at such time, in such 

7 manner, and accompanied by such information as 

8 the Secretary may require. Each application shall 

9 contain the following: 

10 ‘‘(A) A description of how the local edu11 cational agency meets the award criteria under 

12 paragraph (4), including the information de13 scribed in clauses (i) through (iv) of paragraph 

14 (4)(A) and subparagraphs (B) and (C) of para15 graph (4). 

16 ‘‘(B) In the case of an application for an 

17 emergency grant— 

18 ‘‘(i) a description of the school facility 

19 deficiency that poses a health or safety 

20 hazard to the occupants of the facility and 

21 a description of how the deficiency will be 

22 repaired; and 

23 ‘‘(ii) a signed statement from an ap24 propriate local official certifying that a de25 ficiency in the school facility threatens the 


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1 health or safety of the occupants of the fa2 cility or that prevents the use of all or a 

3 portion of the building. 

4 ‘‘(C) In the case of an application for a 

5 modernization grant— 

6 ‘‘(i) an explanation of the need for the 

7 school facility modernization project; 

8 ‘‘(ii) the date on which original con9 struction of the facility to be modernized 

10 was completed; 

11 ‘‘(iii) a listing of the school facilities 

12 to be modernized, including the number 

13 and percentage of children determined 

14 under section 8003(a)(1) in average daily 

15 attendance in each school facility; and 

16 ‘‘(iv) a description of the ownership of 

17 the property on which the current school 

18 facility is located or on which the planned 

19 school facility will be located. 

20 ‘‘(D) A description of the project for which 

21 a grant under this subsection will be used, in22 cluding a cost estimate for the project. 

23 ‘‘(E) A description of the interest in, or 

24 authority over, the school facility involved, such 


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1 as an ownership interest or a lease arrange2 ment. 

3 ‘‘(F) Such other information and assur4 ances as the Secretary may reasonably require. 

5 ‘‘(7) REPORT.— 

6 ‘‘(A) IN GENERAL.—Not later than Janu7 ary 1 of each year, the Secretary shall prepare 

8 and submit to the appropriate congressional 

9 committees a report that contains a justifica10 tion for each grant awarded under this sub11 section for the prior fiscal year. 

12 ‘‘(B) DEFINITION.—In this paragraph, the 

13 term ‘appropriate congressional committees’ 

14 means— 

15 ‘‘(i) the Committee on Appropriations 

16 and the Committee on Education and 

17 Labor of the House of Representatives; 

18 and 

19 ‘‘(ii) the Committee on Appropriations 

20 and the Committee on Health, Education, 

21 Labor, and Pensions of the Senate.’’. 

Æ 


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