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(4) There has been an unusually large Federal impact in the 4-year increase period for which the application is made equal to at least 10 percent of the average daily membership in the base year in an attendance area affecting one or more attendance centers located in an isolated or remote part of the school district.

(5) It would not be practicable to transport students in the federally impacted attendance area to other existing school facilities of the applicant because of distance, topography, traffic, or climatic conditions, or other equally cogent

reasons.

(6) The

Commissioner determines that other exceptional circumstances exist which in his judgment require such waiver or reduction to avoid inequity and to avoid defeating the purposes of the Act.

(b) If the Commissioner, on the basis of the minimum criteria above set forth, determines, under subsection 5(e) of the Act, to exercise his authority to waive or reduce one or more of the specified requirements:

(1) He will determine which requirement or requirements he will waive, or reduce, and if the latter, the extent of such a reduction;

(?) He will determine the geographical area of the applicant which shall be considered as constituting the "federally impacted attendance area"; and

(3) The application otherwise will be processed, taking into consideration only the established "federally impacted attendance area," but in no case shall payments hereunder exceed the amounts con.putable on the basi of the district as a whole taking into consideration the waivers or reductions approved by the Commissioner.

§ 114.6 Criteria for waiver under section 5(e) of the Act for children residing on Federal property.

(a) The Commissioner's authority under section 5(e) of the Act to waive or reduce the percentage increase requirement in section 5(c) of the Act with respect to children residing on Federal property, and/or to waive or reduce the percentage increase requirement in section 5 (d) of the Act with respect to nonfederally connected children will be exercised only if the conditions set forth in subparagraphs (1) through (6), inclusive, of this paragraph are met:

(1) The applicant otherwise meets all the conditions for eligibility under the Act, other than section 14 thereof.

(2) The applicant specifically states the waiver it desires be made or the extent to which it desires a reduction in one or more of such requirements, and makes an appropriate request therefor in which he agrees that, if such a request is granted in whole or in part, only the Federal property upon which the children reside shall be considered as a federally impacted attendance area in computing maximum payment under the waiver or reduction in requirement and that only children residing on the Federal property constituting the federally impacted attendance area will be considered in determining the increase in membership of federally connected children.

(3) There has been an increase in membership of the children residing on the Federal property constituting the federally impacted attendance area in the 4-year increase period for which the application is made of at least 50 in number and equal to at least 8 percent of the average daily membership of such children in the base year, or there are at least 50 more children residing on said Federal property than were estimated to be in the membership of the applicant's schools at the end of the increase period under the last previous eligible application for which payment has been made or may be made.

(4) The applicant has need for additional classrooms or related school facilities on the basis of the district as a whole, or the school facilities of such applicant are not reasonably accessible to the children residing on the Federal property constituting the federally impacted attendance area because of their location or the infeasibility of transporting the children residing on said Federal property to such facilities.

(5) The estimated number of children who reside on the Federal property constituting the federally impacted attendance area and who will be in the district's schools at the close of the increase period covered by the application under consideration cannot be housed adequately in minimum school facilities within the school district unless additional school facilities are provided in the school district.

(6) The school facilities to be constructed with the funds made available

to the applicant upon approval of the : waiver will be located within the Federal

property or located reasonably close thereto so that they will serve the children residing thereon.

(b) If the Commissioner, on the basis of the minimum criteria in paragraph (a) of this section, determines under section 5(e) of the Act to waive or reduce the percentage increase requirement of section 5(c) of the Act with respect to children residing on Federal property, and/or the percentage increase requirement with respect to nonfederally connected children in section 5(d) of the Act:

(1) He shall determine which requirements he will waive or reduce and the extent of any such waiver or reduction; and

(2) The application will be processed under the Act and the regulations in this part, taking into consideration only the established federally impacted attendance area, but in no case shall payments hereunder exceed the amount computable on the basis of the district as a whole, taking into consideration the waivers or reductions approved by the Commissioner.

§ 114.7 Criteria for waiver under subsection 14(a) of the Act.

The Commissioner's authority in section 14(a) of the Act to waive the percentage requirement in section 14(a) (1) will not be exercised unless:

(a) The applicant meets all conditions of eligibility under section 14 or, on the basis of the authorized waiver of the percentage requirement, would meet such conditions;

(b) The applicant makes a request to waive such percentage requirement; and (c) Either (1) the applicant's jurisdictional area is countywide or is sufficiently extensive as to be analogous to a countywide school system; there has been a concentration of children residing on Indian lands located in a remote or isolated area; and it would not be practicable to transport such children from the remote or isolated area to other existing school facilities of the applicant because of distance, topography, traffic, or climatic conditions, or other equally cogent reasons; or (2) there are other exceptional circumstances which require a waiver to avoid inequity and to avoid defeating the purpose of section 14.

§ 114.8 Determination of undue financial burden.

A determination under section 5(c) of undue financial burden on the taxing and borrowing authority of an applicant will be made on the basis of estimated pupil membership and the number of children without minimum school facilities as of the end of the 4-year increase period covered by the application.

§ 114.9 Membership of nonresident pupils.

For purposes of sections 5, 8, 9, and 14 of the Act and the regulations in this part, in determining an applicant's membership, a nonresident pupil who attends a school in the applicant district on a tuition or nontuition basis may be counted in the applicant's membership when a written agreement for such attendance has been entered into between the local educational agencies concerned, and if that agreement is approved by the Commissioner.

§ 114.10 School facilities for children whose membership is of temporary duration only.

(a) If the Commissioner determines that the membership of some of the children of the applicant, representing otherwise countable Federal increases under section 5 of the Act, will be of temporary duration only, as defined in § 114.1(0), the membership of such children will be excluded in computing maximum payments under section 5.

(b) The Commissioner, when proper request therefor is made in a Part I application, (1) may make available to such applicant such temporary school facilities as may be necessary to take care of the membership of such children as the Commissioner determines will be members of the applicant's school system for a sufficient period of time to justify the expense; or (2) may, where the applicant gives assurance in a complete application that at least minimum school facilities will be provided for such children, pay (on such terms and conditions as he deems appropriate to carry out the purposes of the Act) to such applicant for use in constructing school facilities an amount not greater than the amount which he estimates will be necessary to make available temporary facilities for such children, but the amount so paid shall not exceed the cost, in the school district of the applicant, of constructing

minimum school facilities for such children. In no case will provision for such children be made unless they are deemed to be without minimum school facilities. § 114.11 Certification of payments.

Payments to an applicant will be made only on the basis of a complete application satisfying conditions for payment under the Act and this part, and will be restricted in amount to the cost of providing minimum school facilities for unhoused children; however:

(a) With respect to payments under the Act (except section 14 thereof),

(1) The Federal share of the cost of a project which will be certified for payment shall, within the maximum otherwise payable under the Act (except as provided in section 8 thereof), be equal to the cost but shall in no case exceed the cost of constructing minimum school facilities in the school district of the applicant and shall in no case exceed the cost in such district of constructing minimum school facilities for the estimated number of children who will be in the membership of the schools of such applicant at the close of the second year following the increase period under consideration and who will otherwise be unhoused; and

(2) Nothing in this part shall be deemed to bar an applicant, with the approval of the State educational agency, from using for an approved project, in addition to the Federal grant, money otherwise obtained to provide a higher type or larger or better implemented school facility. The applicant will be required to show in such cases that the added cost is being thus independently met.

(b) Payments under section 14 of the Act will not exceed the portion of the cost of minimum school facilities which the Commissioner estimates is attributable to children who reside on Federal property, and which has not been, and is not to be, recovered by the applicant from other sources, including payments by the United States under any other provisions of the Act or any other law; and such payments may be upon such terms and in such amounts, subject to the provisions of section 14, as the Commissioner may consider to be in the public interest.

§ 114.12 Additional payments under section 8 of the Act.

Pursuant to the authority vested in the Commissioner by section 8 of the Act:

(a) Not to exceed 10 percent of any amount appropriated under the Act (exclusive of any sums appropriated for administration) is reserved and may be used by the Commissioner to make grants to applicants under the Act (except section 14 thereof) when (1) the application would be approved but for the applicant's inability, unless aided by such a grant, to finance the non-Federal share of the cost of a project; or (2) after the approval of the application the project cannot, without such grant, be completed because of flood, fire, or similar emergency affecting either the work on the project or the applicant's ability to finance the non-Federal share of the cost of the project.

(b) Under the authority of paragraph (a) (1) of this section, a complete application (except applications under section 14 of the Act and applications with respect to which the Commissioner has waived or reduced eligibility requirements under section 5(e) of the Act) may be considered for payment of part or all of the non-Federal share of the cost of any project which does not include more than minimum facilities for unhoused children: Provided, (1) That the application contains a request for payment hereunder; (2) that the estimated number of children countable for payment under section 5 of the Act for the 4-year increase period equals or exceeds the number obtained by taking 12 percent of the average daily membership of the applicant district for the base year applicable to the increase period under consideration, except that if 1 or more years in the increase period were included in a previous application for which payment has been made or may be made, the percent shall be 9 percent if 1 year was included; 6 percent if 2 years were included; 3 percent if 3 years were included; (3) that the applicant has exhausted all fiscal resources, including State aid, bonding authority, and Federal aid, which are practicably available to it and is unable to pay the non-Federal share of the cost of the project; (4) that it has been reached on the priority indices established by this part; and (5) that Federal money reserved under paragraph (a) of this section is available. The additional payment to the applicant under this provision shall not exceed the cost of providing minimum school facilities for the number of unhoused children as of the end of the 4-year increase period less

all financial resources practicably available to the applicant as of the same period nor shall it exceed the difference between (i) the actual cost of providing minimum facilities for the federally connected pupils eligible for payment under the Act, or the average cost in the State of providing such facilities, whichever is the lesser, and (ii) the Federal funds made available to the applicant under section 5 of the Act plus local and State funds which may be made available for this purpose.

(c) Under the authority of paragraph (a) (2) of this section, a request by the applicant may be considered for the additional payment of part or all of the funds required to complete a project (to the extent that the completed project will not provide more than minimum school facilities for unhoused children) for which a project application under the Act has been approved: Provided, (1) Federal money reserved under paragraph (a) of this section is available; (2) the applicant cannot complete the project because of flood, fire, or similar emergency affecting either the work on the project or the applicant's ability to finance the non-Federal share of the cost of the project; and (3) that the applicant has exhausted all financial resources practically available to it, including State aid, bonding authority, and Federal aid. The payment to be made under this paragraph shall not exceed the amount required to pay the additional cost caused by the emergency less any financial resources of the applicant practicably available for such purpose, including the proceeds of any insurance. § 114.13 Priority and approval of applications; conditioned upon readiness to proceed with construction. Initial approval of a project application meeting the conditions for approval under the Act and under this part will be subject to cancellation in the event the applicant is not ready to proceed with construction within 120 days after the date of initial approval unless such period is extended by the Commissioner for good cause shown; and the applicant's rights to approval and payment may be subordinated by reason thereof to other project applications of lower rank or the applicant may forfeit its priority in the discretion of the Commissioner.

§ 114.14 Works of art.

The cost of works of art when provided in an approved construction project financed entirely, or in part, with Federal funds under the Act shall not exceed 1 percent of the Federal share of the total cost of the project, exclusive of the cost of movable equipment: Provided, however, That nothing contained in this part shall be deemed to bar an applicant, with the approval of the State educational agency, from including works of art in excess of 1 percent of such total cost of a project with the use of non-Federal money.

§ 114.15

School facilities accessible to, and usable by, the handicapped. School facilities constructed under the Act, shall be, to the extent appropriate in view of the uses to be made of the facilities, accessible to and usable by handicapped persons. Plans for construction of minimum school facilities will be evaluated in light of "American Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped," approved by the American Standards Association, Inc., and by other standards which the Secretary may prescribe or approve, affecting ease and safety of access, egress, and use of school facilities by handicapped persons.

§ 114.16 Excellence of architecture and design of minimum school facilities. Local educational agencies shall give due consideration to excellence of architecture and design when constructing minimum school facilities under the Act. The applicant shall furnish an appropriate assurance to this effect and any other evidence that such consideration has been given as may reasonably be required by the Commissioner.

§ 114.17 Flood plains.

In the planning of the construction of school facilities under the Act, each local educational agency shall, in accordance with the provisions of Executive Order No. 11296 of August 10, 1966 (31 F.R. 10663) and such rules and regulations as may be issued by the Department of Health, Education, and Welfare, to carry out those provisions evaluate flood hazards in connection with such school facilities and, as far as practicable, avoid the uneconomic, hazardous, or unnecessary use of flood

plains in connection with such construction.

§ 114.18 Preceding provisions not exhaustive of jurisdiction of the Commissioner.

No provisions of this part now or hereafter promulgated shall be deemed exhaustive of the jurisdiction of the Commissioner under the Act. The provisions of this part may be modified or further regulations may be issued hereafter as circumstances may warrant. Subpart B-Establishment of Cutoff

Dates for Filing Applications

§ 114.20 Establishment of cutoff dates. The cutoff dates for applications during each fiscal year will be set by the Commissioner by notices published in the FEDERAL REGISTER.

Subpart C-Retention of Records § 114.30

Retention of records.

Local educational agencies receiving Federal payments under the Act are required to keep intact all records supporting claims for such Federal payments until the completion of the fiscal audit or administrative reviews which are regularly conducted by Federal agencies, or for 3 years following the fiscal year to which the claim relates, whichever is later, except as otherwise notified. The records involved in any claims or expenditures which have been questioned should be further maintained until necessary adjustments have been made and the adjustments have been reviewed and cleared by the Federal agencies making such reviews. The Commissioner does not require that records be maintained beyond this period unless, under special circumstances, the grantee agency is specifically advised that certain record materials should be retained until specific questions are settled.

PART 115-FINANCIAL ASSISTANCE FOR CURRENT EXPENDITURES AFTER JUNE 30, 1958, OF LOCAL EDUCATIONAL AGENCIES IN AREAS AFFECTED BY FEDERAL ACTIVITIES AND ARRANGEMENTS FOR FREE PUBLIC EDUCATION OF CERTAIN CHILDREN RESIDING ON FEDERAL PROPERTY

Subpart A Scape and Definitions Sec. 115.1 Scope.

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