II

103D CONGRESS

2D SESSION S. 2018

To reauthorize Public Law 81–815 (School Construction), and for other

purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 14 (legislative day, APRIL 11), 1994

Mr. PRESSLER introduced the following bill; which was read twice and referred

to the Committee on Labor and Human Resources

A BILL

To reauthorize Public Law 81–815 (School Construction),

and for other purposes.

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

3 SECTION 1. SCHOOL CONSTRUCTION.

4 The Act entitled ‘‘An Act relating to the construction

5 of school facilities in areas affected by Federal activities,

6 and for other purposes’’ approved September 23, 1950 (20

7 U.S.C. 631 et seq.) is amended to read as follows:
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1 ‘‘SECTION 1. STATEMENT OF PURPOSE AND AUTHORIZA2 TION OF APPROPRIATIONS.

3 ‘‘(a) STATEMENT OF PURPOSE.—It is the purpose of

4 this Act to provide financial assistance to federally im5 pacted school districts which are urgently in need of—

6 ‘‘(1) school facilities in school districts—

7 ‘‘(A) that have substantial increases in

8 school membership as a result of new or in9 creased Federal activities; and

10 ‘‘(B) the membership of which includes

11 children in need of minimum school facilities;

12 and

13 ‘‘(2) facility improvements or structural modi14 fications due to the need to meet life safety codes,

15 average daily attendance requirements, Federal laws,

16 rules or regulations, or curriculum improvements.

17 ‘‘(b) AUTHORIZATION OF APPROPRIATIONS.—

18 ‘‘(1) IN GENERAL.—There are authorized to be

19 appropriated $29,000,000 for fiscal year 1995, and

20 such sums as may be necessary for each of the fiscal

21 years 1996 through 1999, to carry out sections 5,

22 9, 10, and 13.

23 ‘‘(2) ADMINISTRATIVE EXPENSES.—There are

24 authorized to be appropriated such sums as may be

25 necessary for each of the fiscal years 1995 through
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1 1999 for the administrative expenses of the Depart2 ment of Education.

3 ‘‘(3) AVAILABILITY.—Funds appropriated pur4 suant to the authority of paragraph (1) shall remain

5 available until expended.

6 ‘‘SEC. 2. PORTION OF APPROPRIATIONS AVAILABLE FOR

7 PAYMENTS.

8 ‘‘(a) IN GENERAL.—For each fiscal year the Sec9 retary shall determine the portion of the funds appro10 priated pursuant to the authority of section 1 which shall

11 be available for carrying out the provisions of sections 9

12 and 10. The remainder of such funds shall be available

13 for paying to local educational agencies the Federal share

14 of the cost of projects for the construction of school facili15 ties for which applications have been approved under sec16 tion 6.

17 ‘‘(b) ALLOCATION BETWEEN SECTIONS 5 AND 13.—

18 In any fiscal year the remainder of funds described in the

19 second sentence of subsection (a) shall be used so that—

20 ‘‘(1) 50 percent of such funds are used for pay21 ments under section 5 for such year; and

22 ‘‘(2) 50 percent of such funds are used for pay23 ments under section 13 for such year.
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1 ‘‘(c) ALLOCATION WITHIN SECTION 5.—In any fiscal

2 year, the amount of funds available for payments under

3 section 5 for such year shall be used so that—

4 ‘‘(1) 50 percent of such funds are available for

5 activities described in section 1(a)(1)(A); and

6 ‘‘(2) 50 percent of such funds are available for

7 activities described in section 1(a)(1)(B).

8 ‘‘SEC. 3. ESTABLISHMENT OF PRIORITIES.

9 ‘‘(a) IN GENERAL.—In the event that funds appro10 priated pursuant to the authority of section 1 and remain11 ing available for payment to local educational agencies

12 under this Act are less than the Federal share of the cost

13 of the projects with respect to which applications have

14 been filed prior to such date (and for which funds under

15 section 1 have not already been obligated), the Secretary

16 shall make payments under section 5—

17 ‘‘(1) in the case of activities described in section

18 1(a)(1)(A), on the basis of the highest percentage of

19 children in need of minimum school facilities; and

20 ‘‘(2) in the case of activities described in section

21 1(a)(1)(B), on the basis of the highest percentage of

22 federally connected students eligible for payment.

23 ‘‘(b) SPECIAL RULE.—Only applications meeting the

24 conditions for approval under this Act (other than section
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1 6(b)(2)(C)) shall be considered applications for purposes

2 of subsection (a).

3 ‘‘(c) INCREASES.—

4 ‘‘(1) IN GENERAL.—The priorities described in

5 this section shall be applied so that applications for

6 payments based upon increases in the number of

7 children residing on, or residing with a parent em8 ployed on, property which is part of a low-rent hous9 ing project assisted under the United States Hous10 ing Act of 1937 shall not be approved for any fiscal

11 year until all other applications for payments under

12 paragraph (1) of section 5(a) for payments relating

13 to military connected children, and under sub14 sections (a) and (b) of section 13 for payments re15 lating to Indian children, have been approved for

16 that fiscal year.

17 ‘‘(2) MILITARY CONNECTED CHILDREN.—For

18 the purpose of paragraph (1), the term ‘military

19 connected children’ means children described in—

20 ‘‘(A) section 3(a) of Public Law 81–874

21 who reside on a military installation;

22 ‘‘(B) section 3(b)(1) of such Public Law

23 who reside on a military installation;
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1 ‘‘(C) section 3(b)(2) of such Public Law

2 who have a parent employed on a military in3 stallation; and

4 ‘‘(D) section 3(b)(3) of such Public Law.

5 ‘‘SEC. 4. FEDERAL SHARE FOR ANY PROJECT.

6 ‘‘(a) IN GENERAL.—Subject to section 5 (which im7 poses limitations on the total of the payments which may

8 be made to any local educational agency), the Federal

9 share of the cost of a project under this Act shall be equal

10 to such cost, but in no case to exceed the cost, in the

11 school district of the applicant, of constructing minimum

12 school facilities, and in no case to exceed the cost in such

13 district of constructing minimum school facilities for the

14 estimated number of children who will be in the member15 ship of the schools of such agency at the close of the sec16 ond year following the increase period and who will other17 wise be without such facilities at such time.

18 ‘‘(b) DETERMINATION.—For the purposes of sub19 section (a), the number of such children who will otherwise

20 be without such facilities at such time shall be determined

21 by reference to those facilities which as of the date the

22 application for such project is approved, are included in

23 a project the application for which has been approved

24 under this Act.
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1 ‘‘SEC. 5. LIMITATION ON TOTAL PAYMENTS TO ANY LOCAL

2 EDUCATIONAL AGENCY.

3 ‘‘(a) LIMITATION.—

4 ‘‘(1) IN GENERAL.—Subject to the limitations

5 in subsection (c), the total of the payments to a local

6 educational agency under this Act may not exceed

7 the sum of the following:

8 ‘‘(A) The estimated increase, since the

9 base year, in the number of children determined

10 with respect to such agency who live on Federal

11 property and have a parent who works on Fed12 eral property multiplied by 100 percent of the

13 average per pupil cost of constructing minimum

14 school facilities in the State in which the school

15 district of such agency is situated.

16 ‘‘(B) The estimated increase, since the

17 base year, in the number of children determined

18 with respect to such agency who have a parent

19 who lives on or works on Federal property mul20 tiplied by 50 percent of such cost.

21 ‘‘(2) COMPUTATION RULE.—In computing for

22 any local educational agency the number of children

23 in an increase under subparagraph (A) or (B) of

24 paragraph (1), the estimated number of children de25 scribed in such subparagraphs who will be in the

26 membership of the schools of such agency at the
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1 close of the increase period shall be compared with

2 the estimated number of such children in average

3 daily membership of the schools of such agency dur4 ing the base year, except that the base year average

5 daily membership shall be adjusted to exclude the

6 number of children that formed the basis for pre7 vious payments on applications approved 30 or more

8 years prior to the close of the increased period for

9 the application for which the determination is made.

10 ‘‘(b) ELECTION.—If both subparagraphs (A) and (B)

11 of subsection (a)(1) apply to a child, the local educational

12 agency shall elect which of such subparagraphs shall apply

13 to such child, except that, notwithstanding the election of

14 a local educational agency to have such subparagraph (B)

15 apply to a child instead of such subparagraph (A), the de16 termination of the maximum amount for such agency

17 under subsection (a)(1) shall be made without regard to

18 such election.

19 ‘‘(c) MINIMUM INCREASE REQUIREMENT.—A local

20 educational agency shall not be eligible to have any

21 amount included in its maximum by reason of subpara22 graph (A) or (B) of subsection (a)(1) unless the increase

23 in children referred to in such subparagraphs is—

24 ‘‘(1) at least 20; and
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1 ‘‘(2)(A) equal to at least 6 percent of the num2 ber of federally connected children who were in the

3 average daily membership of the schools of such

4 agency during the base year; or

5 ‘‘(B) at least 750,

6 whichever is the lesser.

7 ‘‘(d) EXCEPTIONAL CIRCUMSTANCES.—Notwith8 standing the provisions of subsection (c) of this section,

9 whenever and to the extent that, in the Secretary’s judg10 ment, exceptional circumstances exist which make such ac11 tion necessary to avoid inequity and avoid defeating the

12 purposes of the Act, the Secretary may waive or reduce

13 the minimum number requirement or any percentage re14 quirement described in subsection (c).

15 ‘‘(e) COUNT LIMITATION.—

16 ‘‘(1) IN GENERAL.—In determining under this

17 section the total of the payments which may be

18 made to a local educational agency on the basis of

19 any application, the total number of children count20 ed for purposes of subparagraph (A) or (B) of sub21 section (a)(1) may not exceed—

22 ‘‘(A) the number of children whose mem23 bership at the close of the increase period for

24 the application is compared with average daily

25 membership in the base period for purposes of
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1 that paragraph (except that the base year aver2 age daily membership shall not include any chil3 dren counted for purposes of a payment pursu4 ant to an application approved 30 or more

5 years ago), minus

6 ‘‘(B) the number of such children whose

7 membership at the close of the increase period

8 was compared with membership in the base

9 year for purposes of such subparagraph under

10 the last previous application, if any, of the

11 agency on the basis of which any payment has

12 been or may be made to that agency.

13 ‘‘(2) LAST PREVIOUS APPLICATION.—For the

14 purpose of paragraph (1)(B) the term ‘last previous

15 application’ means the last application for assistance

16 under this Act that was funded within 4 fiscal years

17 preceding the fiscal year for which the determination

18 is made.

19 ‘‘SEC. 6. APPLICATIONS.

20 ‘‘(a) APPLICATION REQUIRED.—No payment may be

21 made to any local educational agency under this Act ex22 cept upon application therefore which is submitted

23 through the appropriate State educational agency and is

24 filed with the Secretary in accordance with regulations

25 prescribed by the Secretary.
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1 ‘‘(b) CONTENTS.—

2 ‘‘(1) IN GENERAL.—Each application by a local

3 educational agency shall set forth the project for the

4 construction of school facilities for such agency with

5 respect to which it is filed, and shall contain or be

6 supported by—

7 ‘‘(A) a description of the project and the

8 site therefor, preliminary drawings of the school

9 facilities to be constructed thereon, and such

10 other information relating to the project as may

11 reasonably be required by the Secretary;

12 ‘‘(B) assurance that such agency has or

13 will have title to the site, or the right to con14 struct upon such site school facilities as speci15 fied in the application and to maintain such

16 school facilities on such site for a period of not

17 less than 20 years after the completion of the

18 construction;

19 ‘‘(C) assurance that such agency has legal

20 authority to undertake the construction of the

21 project and to finance any non-Federal share of

22 the cost thereof as proposed, and assurance

23 that adequate funds to defray any such non24 Federal share will be available when needed;
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1 ‘‘(D) assurance that such agency will cause

2 work on the project to be commenced within a

3 reasonable time and prosecuted to completion

4 with reasonable diligence;

5 ‘‘(E) assurance that, except for emergency

6 relief under section 7 of the Act of September

7 30, 1950 (Public Law 81–874), all laborers and

8 mechanics employed by contractors or sub9 contractors on all construction and minor re10 modeling projects assisted under this Act shall

11 be paid wages at rates not less than those pre12 vailing on similar construction and minor re13 modeling in the locality as determined by the

14 Secretary of Labor in accordance with the

15 Davis-Bacon Act, as amended (40 U.S.C.

16 276a–276a–5) and the Secretary of Labor shall

17 have, with respect to the labor standards speci18 fied in this subparagraph, the authority and

19 functions set forth in Reorganization Plan

20 Numbered 14 or 1950 and section 2 of the Act

21 of June 13, 1934, as amended (40 U.S.C.

22 276c), (20 U.S.C. 1232(b));

23 ‘‘(F) assurance that the school facilities of

24 such agency will be available to the children for

25 whose education contributions are provided in
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1 this Act on the same terms, in accordance with

2 the laws of the State in which the school dis3 trict of such agency is situated, as such facili4 ties are available to other children in such

5 school district; and

6 ‘‘(G) assurance that such agency will from

7 time to time prior to the completion of the

8 project submit such reports relating to the

9 project as the Secretary may reasonably re10 quire.

11 ‘‘(2) APPROVAL.—Except as provided in para12 graph (3), the Secretary shall approve any applica13 tion if the Secretary finds—

14 ‘‘(A) that the requirements of paragraph

15 (1) have been met and that approval of the

16 project would not result in payments in excess

17 of those permitted by sections 4 and 5;

18 ‘‘(B) after consultation with the State and

19 local educational agencies, that the project is

20 not inconsistent with overall State plans for the

21 construction of school facilities; and

22 ‘‘(C) that there are sufficient Federal

23 funds available to pay the Federal share of the

24 cost of such project and of all other projects for

25 which Federal funds have not already been obli-
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1 gated and applications for which, under section

2 3, have a higher priority.

3 ‘‘(c) NOTICE AND HEARING.—No application under

4 this Act shall be disapproved in whole or in part until the

5 Secretary has afforded the local educational agency rea6 sonable notice and opportunity for hearing.

7 ‘‘(d) SUBMISSION.—An application for a payment

8 under this Act shall be submitted by June 30 of the fiscal

9 year preceding the fiscal year for which payment is re10 quested. An application submitted pursuant to the preced11 ing sentence shall remain active for a period of 2 fiscal

12 years following the fiscal year for which payment under

13 this Act is requested. If a local educational agency wishes

14 to make an application for payment under this Act after

15 the expiration of the 2-year period described in the preced16 ing sentence such agency shall resubmit an application in

17 accordance with this section.

18 ‘‘SEC. 7. PAYMENTS.

19 ‘‘(a) IN GENERAL.—Upon approving the application

20 of any local educational agency under section 6, the Sec21 retary shall pay to such agency an amount equal to 10

22 percent of the Federal share of the cost of the project.

23 After final drawings and specifications have been approved

24 by the Secretary and the construction contract has been

25 entered into, the Secretary, in accordance with regulations
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1 prescribed by the Secretary and at such times and in such

2 installments as may be reasonable, shall pay to such agen3 cy the remainder of the Federal share of the cost of the

4 project.

5 ‘‘(b) REPAYMENT.—Any funds paid to a local edu6 cational agency under this Act and not expended for the

7 purposes for which paid shall be repaid to the Treasury

8 of the United States.

9 ‘‘SEC. 8. ADDITIONAL PAYMENTS.

10 ‘‘(a) IN GENERAL.—Not to exceed 10 percent of the

11 funds appropriated pursuant to the authority of section

12 1(b)(1) for any fiscal year may be used by the Secretary,

13 under regulations prescribed by the Secretary, to make

14 grants to local educational agencies where—

15 ‘‘(1) the application of such agencies would be

16 approved under this Act but for the agencies’ inabil17 ity, unless aided by such grants, to finance the non18 Federal share of the cost of the projects set forth in

19 their applications; or

20 ‘‘(2) although the applications of such agencies

21 have been approved, the projects covered by such ap22 plications could not, without such grants, be com23 pleted, because of flood, fire, or similar emergency

24 affecting either the work on the projects or the
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1 agencies’ ability to finance the non-Federal share of

2 the cost of the projects.

3 ‘‘(b) SPECIAL RULE.—The grants described in sub4 section (a) shall be in addition to the payments otherwise

5 provided under this Act, shall be made to those local edu6 cational agencies whose need for additional aid is the most

7 urgent and acute, and insofar as practicable shall be made

8 in the same manner and upon the same terms and condi9 tions as such other payments.

10 ‘‘(c) ADDITIONAL APPROPRIATIONS REQUIRED.—

11 The provisions of this section shall take effect only when

12 funds are specifically appropriated to carry out this sec13 tion.

14 ‘‘SEC. 9. WHERE EFFECT OF FEDERAL ACTIVITIES WILL BE

15 TEMPORARY.

16 ‘‘Notwithstanding the preceding provisions of this

17 Act, whenever the Secretary determines that the member18 ship of some or all of the children, who may be included

19 in computing under section 5 the maximum on the total

20 of the payments for any local educational agency, will be

21 of temporary duration only, such membership shall not be

22 included in computing such maximum. Instead, the Sec23 retary may make available to such agency such temporary

24 school facilities as may be necessary to take care of such

25 membership; or the Secretary may, where the local edu-
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1 cational agency gives assurance that at least minimum

2 school facilities will be provided for such children, pay (on

3 such terms and conditions as the Secretary deems appro4 priate to carry out the purposes of this Act) to such agen5 cy for use in constructing school facilities an amount equal

6 to the amount which the Secretary estimates would be nec7 essary to make available such temporary facilities. In no

8 case may the amount so paid exceed the cost, in the school

9 district of such agency of constructing minimum school

10 facilities for such children. The Secretary may transfer to

11 such agency or its successor all the right, title, and inter12 est of the United States in and to any temporary facilities

13 made available to such agency under this section; and such

14 transfer shall be without charge, but may be made on such

15 other terms and conditions, and at such time as the Sec16 retary deems appropriate to carry out the purposes of this

17 Act.

18 ‘‘SEC. 10. CHILDREN FOR WHOM LOCAL AGENCIES ARE UN19 ABLE TO PROVIDE EDUCATION.

20 ‘‘(a) IN GENERAL.—In the case of children who it

21 is estimated by the Secretary in any fiscal year will reside

22 on Federal property at the end of the next fiscal year—

23 ‘‘(1) if no tax revenues of the State or any po24 litical subdivision thereof may be expended for the

25 free public education of such children; or
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1 ‘‘(2) if it is the judgment of the Secretary, after

2 the Secretary has consulted with the appropriate

3 State educational agency, that no local educational

4 agency is able to provide suitable free public edu5 cation for such children,

6 the Secretary shall make arrangements for constructing,

7 leasing, renovating, remodeling, or rehabilitating or other8 wise providing the minimum school facilities necessary for

9 the education of such children. In any case in which the

10 Secretary makes arrangements under this section for con11 structing, leasing, renovating, remodeling, or rehabilitat12 ing or otherwise providing minimum school facilities situ13 ated on Federal property in Puerto Rico, Wake Island,

14 Guam, American Samoa, the Northern Mariana Islands,

15 or the Virgin Islands, the Secretary may also include mini16 mum school facilities necessary for the education of chil17 dren residing with a parent employed by the United States

18 though not residing on Federal property, but only if the

19 Secretary determines, after consultation with the appro20 priate State educational agency, (A) that the construction

21 or provision of such facilities is appropriate to carry out

22 the purposes of this subsection, (B) that no local edu23 cational agency is able to provide suitable free public edu24 cation for such children, and (C) that English is not the

25 primary language of instruction in schools in the locality.
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1 Such arrangements may also be made to provide, on a

2 temporary basis, minimum school facilities for children of

3 members of the Armed Forces on active duty, if the

4 schools in which free public education is usually provided

5 for such children are made unavailable to such children

6 as a result of official action by State or local governmental

7 authority and it is the judgment of the Secretary, after

8 the Secretary has consulted with the appropriate State

9 educational agency, that no local educational agency is

10 able to provide suitable free public education for such chil11 dren.

12 ‘‘(b) SPECIAL RULES.—

13 ‘‘(1) COMPARABILITY.—To the maximum ex14 tent practicable school facilities provided under this

15 section shall be comparable to minimum school fa16 cilities provided for children in comparable commu17 nities in the State.

18 ‘‘(2) INAPPLICABILITY.—This section shall not

19 apply to—

20 ‘‘(A) children who reside on Federal prop21 erty under the control of the Atomic Energy

22 Commission; and

23 ‘‘(B) Indian children attending schools

24 supported by the Bureau of Indian Affairs.
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1 ‘‘(3) SPECIAL RULE.—Whenever it is necessary

2 for the Secretary to provide school facilities for chil3 dren residing on Federal property under this section,

4 the membership of such children may not be in5 cluded in computing under section 5 the maximum

6 on the total of the payments for any local edu7 cational agency.

8 ‘‘(c) TRANSFERS.—When the Secretary determines it

9 is in the interest of the Federal Government to do so, the

10 Secretary may transfer, upon the written request of the

11 local educational agency, to the appropriate local edu12 cational agency all the right, title, and interest of the

13 United States in and to any facilities provided under this

14 Act (or section 204 or 310 of Public Law 81–815 as such

15 law was in effect January 1, 1958). Prior to any transfer,

16 the facility shall meet all State and Federal building

17 health and safety codes, regulations and laws. Any such

18 transfer shall be without charge, but may be made on such

19 other terms and conditions and at such time as the Sec20 retary deems appropriate to carry out the purposes of this

21 Act.

22 ‘‘(d) SPECIAL RULE REGARDING TAX REVENUES.—

23 If no tax revenues of a State or of any political subdivision

24 of the State may be expended for the free public education

25 of children who reside on any Federal property within the
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1 State, or if no tax revenues of a State are allocated for

2 the free public education of such children, then the prop3 erty on which such children reside shall not be considered

4 Federal property for the purposes of section 5 of this Act.

5 ‘‘SEC. 11. WITHHOLDING OF PAYMENTS.

6 ‘‘(a) IN GENERAL.—Whenever the Secretary, after

7 providing reasonable notice and opportunity for hearing

8 to a local educational agency, finds that—

9 ‘‘(1) there is a substantial failure to comply

10 with the drawings and specifications for the project;

11 ‘‘(2) any funds paid to a local educational agen12 cy under this Act have been diverted from the pur13 poses for which paid; or

14 ‘‘(3) any assurance given in an application is

15 not being or cannot be carried out,

16 the Secretary may notify such agency that no further pay17 ment will be made under this Act with respect to such

18 agency until there is no longer any failure to comply or

19 the diversion or default has been corrected or, if compli20 ance or correction is impossible, until such agency repays

21 or arranges for the repayment of Federal moneys which

22 have been diverted or improperly expended.

23 ‘‘(b) JUDICIAL REVIEW.—The final refusal of the

24 Secretary to approve part or all of any application under

25 this Act, and the Secretary’s final action under subsection
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1 (a) of this section, shall be subject to judicial review on

2 the record, in the United States court of appeals for the

3 circuit in which the local educational agency is located,

4 in accordance with the provisions of the Administrative

5 Procedure Act.

6 ‘‘SEC. 12. USE OF OTHER FEDERAL AGENCIES TRANSFER

7 AND AVAILABILITY OF APPROPRIATIONS.

8 ‘‘(a) ADMINISTRATION.—In carrying out the provi9 sions of this Act, the Secretary is authorized to utilize the

10 services and facilities of any agency of the Federal Govern11 ment and of any other public or nonprofit agency or insti12 tution, in accordance with appropriate agreements, and to

13 pay for such services either in advance or by way of reim14 bursement, as may be agreed upon.

15 ‘‘(b) REQUESTS FOR INFORMATION.—All Federal de16 partments or agencies administering Federal property on

17 which children reside, and all such departments or agen18 cies principally responsible for Federal activities which

19 may give rise to a need for the construction of school fa20 cilities, shall to the maximum extent practicable, comply

21 with requests of the Secretary for information the Sec22 retary may require in carrying out the purposes of this

23 Act.

24 ‘‘(c) SPECIAL RULE.—No appropriation to any de25 partment or agency of the United States, other than an
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1 appropriation to carry out this Act, shall be available for

2 the same purposes as this Act.

3 ‘‘SEC. 13. SCHOOL CONSTRUCTION ASSISTANCE IN OTHER

4 FEDERALLY AFFECTED AREAS.

5 ‘‘(a) ASSISTANCE AUTHORIZED FOR CERTAIN IN6 DIAN CHILDREN.—

7 ‘‘(1) IN GENERAL.—If the Secretary determines

8 with respect to any local educational agency that—

9 ‘‘(A) such agency is providing or, upon

10 completion of the school facilities for which pro11 vision is made under this subsection, will pro12 vide free public education for children who re13 side on Indian lands, and whose membership in

14 the schools of such agency has not formed and

15 will not form the basis for payments under

16 other provisions of this Act, and that the total

17 number of such children represents a substan18 tial percentage of the total number of children

19 for whom such agency provides free public edu20 cation, or that such Indian lands constitute a

21 substantial part of the school district of such

22 local educational agency, or that the total num23 ber of such children who reside on Indian lands

24 located outside the school district of such agen25 cy equals or exceeds 100;
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1 ‘‘(B) the immunity of such Indian lands to

2 taxation by such agency has created a substan3 tial and continuing impairment of such agency’s

4 ability to finance needed school facilities;

5 ‘‘(C) such agency is making a reasonable

6 tax effort and is exercising due diligence in

7 availing itself of State and other financial as8 sistance available for the purpose of this sec9 tion; and

10 ‘‘(D) such agency does not have sufficient

11 funds available to such agency from other Fed12 eral, State, and local sources to provide the

13 minimum school facilities required for free pub14 lic education of a substantial percentage of the

15 children in the membership of its schools,

16 then the Secretary may provide the additional assist17 ance necessary to enable such agency to provide

18 such facilities upon such terms and in such amounts

19 (subject to the provisions of this section) as the Sec20 retary may consider to be in the public interest, ex21 cept that such additional assistance may not exceed

22 the portion of the cost of such facilities or improve23 ments or structural modifications which the Sec24 retary estimates has not been, and is not to be, re25 covered by the local educational agency from other
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1 sources, including payments by the United States

2 under any provision of this Act or any other law.

3 ‘‘(2) WAIVER.—Notwithstanding the provisions

4 of this subsection, the Secretary may waive the per5 centage requirement described in paragraph (1)(A)

6 whenever, in the Secretary’s judgment, exceptional

7 circumstances exist which make such actions nec8 essary to avoid inequity and avoid defeating the pur9 poses of this section. Assistance may be furnished

10 under this subsection without regard to paragraph

11 (1)(B) (but subject to the other provisions of this

12 subsection and subsection (e)) to any local edu13 cational agency which provides free public education

14 for children who reside on Indian lands located out15 side its school district.

16 ‘‘(3) DEFINITION.—For purposes of this sub17 section ‘Indian lands’ means Indian reservations or

18 other real property referred to in the second sen19 tence of section 14(4).

20 ‘‘(b) ASSISTANCE AUTHORIZED FOR OTHER INDIAN

21 CHILDREN.—

22 ‘‘(1) IN GENERAL.—If the Secretary determines

23 with respect to any local educational agency that—

24 ‘‘(A) such agency is providing or, upon

25 completion of the school facilities for which pro-
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1 vision is made under this subsection will provide

2 free public education for children who reside on

3 Indian lands, and whose membership in the

4 schools of such agency has not formed and will

5 not form the basis for payments under other

6 provisions of this Act, and that the total num7 ber of such children represents a substantial

8 percentage of the total number of children for

9 whom such agency provides free public edu10 cation, or that such local educational agency, or

11 that the total number of such children who re12 side on Indian lands located outside the school

13 district of such agency equals or exceeds 100;

14 and

15 ‘‘(B) the immunity of such Indian lands to

16 taxation by such agency has created a substan17 tial and continuing impairment of such agency’s

18 ability to finance needed school facilities,

19 then the Secretary may, upon such terms and in

20 such amounts (subject to the provisions of this sec21 tion) as the Secretary may consider to be in the pub22 lic interest, provide the additional assistance nec23 essary to enable such agency to provide the mini24 mum school facilities required for free public edu25 cation of children in the membership of the schools
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1 of such agency who reside on Indian lands, except

2 that such additional assistance may not exceed the

3 portion of the cost of constructing such facilities

4 which the Secretary estimates has not been, and is

5 not to be, recovered by the local educational agency

6 from other sources, including payments by the Unit7 ed States under any provisions of this Act or any

8 other law.

9 ‘‘(2) WAIVER.—Notwithstanding the provisions

10 of this subsection, the Secretary may waive the per11 centage requirement in paragraph (1)(A) whenever,

12 in the Secretary’s judgment, exceptional cir13 cumstances exist which make such action necessary

14 to avoid inequity and avoid defeating the purpose of

15 this section. Assistance may be furnished under this

16 subsection without regard to paragraph (1)(B) (but

17 subject to the other provisions of this subsection and

18 subsection (e)) to any local educational agency which

19 provides free public education for children who re20 side on Indian lands located outside its school dis21 trict.

22 ‘‘(3) DEFINITION.—For purposes of this sub23 section ‘Indian lands’ means Indian reservations or

24 other real property referred to in the second sen25 tence of section 14(4).
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1 ‘‘(c) ASSISTANCE AUTHORIZED FOR INADEQUATELY

2 HOUSED CHILDREN.—

3 ‘‘(1) IN GENERAL.—If the Secretary determines

4 with respect to any local educational agency that—

5 ‘‘(A) such agency is providing or, upon

6 completion of the school facilities for which pro7 vision is made under this subsection, will pro8 vide, free public education for children who are

9 inadequately housed by minimum school facili10 ties and whose membership in the schools of

11 such agency has not formed and will not form

12 the basis for payments under other provisions

13 of this section, and the total number of such

14 children represents a substantial percentage of

15 the total number of children for whom such

16 agency provides free public education, and Fed17 eral property constitutes a substantial part of

18 the school district of such agency;

19 ‘‘(B) the immunity of such Federal prop20 erty from taxation by such agency has created

21 a substantial and continuing impairment of

22 such agency’s ability to finance needed school

23 facilities;

24 ‘‘(C) such agency is making a reasonable

25 tax effort and is exercising due diligence in
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1 availing itself of State and other financial as2 sistance available for the purpose of this sec3 tion; and

4 ‘‘(D) such agency does not have sufficient

5 funds available to such agency from other Fed6 eral, State, and local sources to provide the

7 minimum school facilities required for free pub8 lic education of a substantial percentage of the

9 children in the membership of its schools,

10 then the Secretary may provide the assistance nec11 essary to enable such agency to provide minimum

12 school facilities for children in the membership of

13 the schools of such agency whom the Secretary finds

14 to be inadequately housed, upon such terms and con15 ditions, and in such amounts (subject to the applica16 ble provisions of this section) as the Secretary may

17 consider to be in the public interest. Such assistance

18 may not exceed the portion of the cost of such facili19 ties or improvements or structural modifications

20 which the Secretary estimates has not been, and is

21 not to be, recovered by the local educational agency

22 from other sources, including payments by the Unit23 ed States under any other provisions of this Act or

24 any other law.
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1 ‘‘(2) WAIVER.—Notwithstanding the provisions

2 of this subsection, the Secretary may waive the per3 centage requirement in paragraph (1)(A) whenever,

4 in the Secretary’s judgment, exceptional cir5 cumstances exist which make such action necessary

6 to avoid inequity and avoid defeating the purposes of

7 this section.

8 ‘‘(d) APPLICATION.—No payment may be made to

9 any local educational agency under subsection (a) or (b)

10 except upon application therefor which is submitted

11 through the appropriate State educational agency and is

12 filed with the Secretary in accordance with regulations

13 prescribed by the Secretary, and which meets the require14 ments of section 6(b)(1). In determining the order in

15 which such applications shall be approved, the Secretary

16 shall consider the relative educational and financial needs

17 of the local educational agencies which have submitted ap18 proved applications and the nature and extent of the Fed19 eral responsibility. No payment may be made under sub20 sections (a) or (b) unless the Secretary finds, after con21 sultation with the State and local educational agencies,

22 that the project or projects with respect to which the pay23 ment is made are not inconsistent with overall State plans

24 for the construction of school facilities. All determinations

25 made by the Secretary under this section shall be made
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1 only after consultation with the appropriate State edu2 cational agency and the local educational agency.

3 ‘‘(e) PAYMENTS.—Amounts paid by the Secretary to

4 local educational agencies under subsections (a) or (b)

5 may be paid in advance of, or by way of reimbursement

6 for, work performed or purchases made pursuant to the

7 agreement with the Secretary under this section, and may

8 be paid in such installments as the Secretary may deter9 mine. Any funds paid to a local educational agency under

10 this section and not expended or otherwise used for the

11 purposes for which paid shall be repaid to the Treasury

12 of the United States.

13 ‘‘(f) INAPPLICABILITY OF CERTAIN PROVISIONS.—

14 None of the provisions of sections 1 through 10, other

15 than section 6(2)(A) shall apply with respect to determina16 tions made under this section.

17 ‘‘SEC. 14. DEFINITIONS AND DETERMINATIONS.

18 ‘‘(a) DEFINITIONS.—As used in this section:

19 ‘‘(1) BASE YEAR.—The term ‘base year’ means

20 the third or fourth regular school year preceding the

21 fiscal year in which an application was filed under

22 section 6, as may be designated in the application.

23 ‘‘(2) CHILD.—The term ‘child’ means any child

24 who is within the age limits for which the applicable

25 State provides free public education.
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1 ‘‘(3) CONSTRUCT; CONSTRUCTING; AND CON2 STRUCTION.—The terms ‘construct’, ‘constructing’,

3 and ‘construction’ include the preparation of draw4 ings and specifications for school facilities; erecting,

5 building, acquiring, altering, remodeling, improving,

6 modifying, or extending school facilities; and the in7 spection and supervision of the construction of

8 school facilities.

9 ‘‘(4) FEDERAL PROPERTY.—(A) The term

10 ‘Federal property’ means real property which is

11 owned by the United States or is leased by the Unit12 ed States, and which is not subject to taxation by

13 any State or any political subdivision of a State or

14 by the District of Columbia. Except for purposes of

15 sections 5, 10, and 13(c), such term includes—

16 ‘‘(i) real property held in trust by the

17 United States for individual Indians or Indian

18 tribes, and real property held by individual In19 dians or Indian tribes which is subject to re20 strictions on alienation imposed by the United

21 States;

22 ‘‘(ii) any low-rent housing (whether or not

23 owned by the United States) which is part of a

24 low-rent housing project assisted under the

25 United States Housing Act of 1937; and
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1 ‘‘(iii) any interest in Federal property (as

2 defined in the provisions of clauses (i) and (ii))

3 under an easement, lease, license, permit, or

4 other arrangement, as well as any improve5 ments of any nature (other than pipelines or

6 utility lines) on such property even though such

7 interests or improvements are subject to tax8 ation by a State or political subdivision of a

9 State or by the District of Columbia.

10 ‘‘(B) Notwithstanding the provisions of sub11 paragraph (A), such term does not include—

12 ‘‘(i) any real property used for a labor sup13 ply center, labor home, or labor camp for mi14 gratory farm workers; and

15 ‘‘(ii) any real property under the jurisdic16 tion of the United States Postal Service and

17 used primarily for the provision of postal serv18 ices.

19 ‘‘(5) FREE PUBLIC EDUCATION.—The term

20 ‘free public education’ means education which is pro21 vided at public expense, under public supervision

22 and direction, and without tuition charge, and which

23 is provided as elementary or secondary school edu24 cation in the applicable State.
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1 ‘‘(6) INCREASED PERIOD.—The term ‘increased

2 period’ means the period of 4 consecutive regular

3 school years immediately following such base year.

4 ‘‘(7) LOCAL EDUCATIONAL AGENCY.—The term

5 ‘local educational agency’ means a board of edu6 cation of any public school or other legally con7 stituted local public school authority having adminis8 trative control and direction of free public education

9 in a county, township, independent, or other school

10 district located within a State. Such term includes

11 any State agency which directly operates and main12 tains facilities for providing free public education or

13 which has responsibility for the provision of such fa14 cilities.

15 ‘‘(8) PARENT.—The term ‘parent’ includes a

16 legal guardian or other person standing in loco

17 parentis.

18 ‘‘(9) SCHOOL FACILITIES.—The term ‘school fa19 cilities’ includes classroom and related facilities; and

20 initial equipment, machinery, and utilities necessary

21 or appropriate for school purposes. Such term does

22 not include athletic stadiums, or structures or facili23 ties intended primarily for athletic exhibitions, con24 tests, or games or other events for which admission

25 is to be charged to the general public. Except as
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1 used in sections 9 and 10 such term does not include

2 interests in land and offsite improvements.

3 ‘‘(10) SECRETARY.—The term ‘Secretary’, un4 less otherwise specified, means the Secretary of Edu5 cation.

6 ‘‘(11) STATE.—The term ‘State’ means a State,

7 the Commonwealth of Puerto Rico, Guam, the Dis8 trict of Columbia, American Samoa, the Common9 wealth of the Northern Mariana Islands, the Virgin

10 Islands, or Wake Island.

11 ‘‘(12) STATE EDUCATIONAL AGENCY.—The

12 term ‘State educational agency’ means the officer or

13 agency primarily responsible for the State super14 vision of public elementary and secondary schools.

15 ‘‘(b) DETERMINATIONS.—

16 ‘‘(1) MEMBERSHIP OF SCHOOLS.—(A) The

17 membership of schools shall be determined in ac18 cordance with State law or, in the absence of State

19 law governing such a determination, in accordance

20 with regulations of the Secretary, except that, not21 withstanding any other provisions of this section,

22 where the local educational agency of the school dis23 trict in which any child resides makes or contracts

24 to make a tuition payment for the free public edu25 cation of such child in a school situated in another
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1 school district, for purposes of this section the mem2 bership of such child, shall be held and considered—

3 ‘‘(i) if the 2 local educational agencies con4 cerned so agree, and if such agreement is ap5 proved by the Secretary, as membership of a

6 school of the local educational agency receiving

7 such tuition payment; and

8 ‘‘(ii) in the absence of any such approved

9 agreement, as membership of a school of the

10 local educational agency so making or contract11 ing to make such tuition payment.

12 ‘‘(B) In any determination of membership of

13 schools, children who are not provided free public

14 education (as defined in subsection (a)(5)) shall not

15 be counted.

16 ‘‘(2) AVERAGE PER PUPIL COST.—The average

17 per pupil cost of constructing minimum school facili18 ties in the State in which the school district of a

19 local educational agency is situated shall be deter20 mined by the Secretary on the basis of the average

21 State per pupil construction cost in the year pre22 vious to the year of funding (including costs of mini23 mum site improvements, minimum initial equipment,

24 and applicable architectural, engineering, and legal

25 fees). The cost of constructing minimum school fa-
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1 cilities in the school district of a local educational

2 agency shall be determined by the Secretary, after

3 consultation with the State and local educational

4 agencies, on the basis of such information as may be

5 contained in the application of such local educational

6 agency and such other information as the Secretary

7 may obtain.

8 ‘‘(3) TIMING AND INFORMATION REQUIRE9 MENT.—Estimates of membership, and all other de10 terminations with respect to eligibility and maximum

11 amount of payment, shall be made as of the time of

12 the approval of the applications for which made, and

13 shall be made on the basis of the best information

14 available at the time of such approval.

15 ‘‘(4) MINIMUM SCHOOL FACILITIES.—Whether

16 or not school facilities are minimum school facilities

17 shall be determined by the Secretary, after consulta18 tion with the State and local educational agencies, in

19 accordance with regulations prescribed by the Sec20 retary. Such regulations shall—

21 ‘‘(A) require the local educational agency

22 concerned to give due consideration to excel23 lence of architecture and design;

24 ‘‘(B) provide that no facility shall be dis25 qualified as a minimum school facility because
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1 of the inclusion of works of art in the plans

2 therefor if the cost of such works of art does

3 not exceed 1 percent of the cost of the project;

4 and

5 ‘‘(C) require compliance with such stand6 ards as the Secretary may prescribe or approve

7 in order to ensure that facilities constructed

8 with the use of Federal funds under this Act

9 shall be, to the extent appropriate in view of the

10 uses to be made of the facilities, accessible to

11 and usable by individuals with disabilities.’’.

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