20 U.S.C. § 7707 — Construction

Page 1602 TITLE 20—EDUCATION § 7707 cal year 2022, provided that payments for fiscal year 2023 shall be calculated by the Secretary using the expenditures and rates described in clauses (i), (ii), (iii), and (iv) of section 7003(b)(1)(C) of such Act that would otherwise apply for fiscal year 2023; or ‘‘(B) use the student count data relating to calcu- lating such payment for the fiscal year required under section 7003(c) of such Act.’’ Pub. L. 116–211, § 2, Dec. 4, 2020, 134 Stat. 1017, provided that: ‘‘Due to the public health emergency relating to COVID–19 and notwithstanding sections 7002(j) and 7003(c) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7702(j), 7703(c)), a local educational agency desiring to receive a payment under section 7002 or 7003 of such Act (20 U.S.C. 7702, 7703) for fiscal year 2022 that also submitted an application for such pay- ment for fiscal year 2021 shall, in the application sub- mitted under section 7005 of such Act (20 U.S.C. 7705) for fiscal year 2022— ‘‘(1) with respect to a requested payment under sec- tion 7002 of such Act— ‘‘(A) use the data described in section 7002(j) of such Act relating to calculating such payment that was submitted by the local educational agency in the application for fiscal year 2021; or ‘‘(B) use the data relating to calculating such payment for the fiscal year required under section 7002(j) of such Act; and ‘‘(2) with respect to a requested payment under sec- tion 7003 of such Act— ‘‘(A) use the student count data relating to calcu- lating such payment that was submitted by the local educational agency in the application for fis- cal year 2021, provided that payments for fiscal year 2022 shall be calculated by the Secretary using the expenditures and rates described in clauses (i), (ii), (iii), and (iv) of section 7003(b)(1)(C) of such Act that would otherwise apply for fiscal year 2022; or ‘‘(B) use the student count data relating to calcu- lating such payment for the fiscal year required under section 7003(c) of such Act.’’ § 7707. Construction (a) Construction payments authorized (1) In general From 40 percent of the amount appropriated for each fiscal year under section 7714(d) of this title, the Secretary shall make payments in accordance with this subsection to each local educational agency that receives a basic support payment under section 7703(b) of this title for that fiscal year. (2) Additional requirements A local educational agency that receives a basic support payment under section 7703(b)(1) of this title shall also meet at least one of the following requirements: (A) The number of children determined under section 7703(a)(1)(C) of this title for the agency for the preceding school year constituted at least 50 percent of the total student enrollment in the schools of the agency during the preceding school year. (B) The number of children determined under subparagraphs (B) and (D)(i) of section 7703(a)(1) of this title for the agency for the preceding school year constituted at least 50 percent of the total student enrollment in the schools of the agency during the pre- ceding school year. (3) Amount of payments (A) Local educational agencies impacted by military dependent children The amount of a payment to each local educational agency described in this sub- section that is impacted by military depend- ent children for a fiscal year shall be equal to— (i)(I) 20 percent of the amount appro- priated under section 7714(d) of this title for such fiscal year; divided by (II) the total number of weighted student units of children described in subpara- graphs (B) and (D)(i) of section 7703(a)(1) of this title for all local educational agencies described in this subsection (as calculated under section 7703(a)(2) of this title), in- cluding the number of weighted student units of such children attending a school facility described in section 7708(a) of this title if the Secretary does not provide as- sistance for the school facility under that section for the prior fiscal year; multiplied by (ii) the total number of such weighted student units for the agency. (B) Local educational agencies impacted by children who reside on Indian lands The amount of a payment to each local educational agency described in this sub- section that is impacted by children who re- side on Indian lands for a fiscal year shall be equal to— (i)(I) 20 percent of the amount appro- priated under section 7714(d) of this title for such fiscal year; divided by (II) the total number of weighted student units of children described in section 7703(a)(1)(C) of this title for all local edu- cational agencies described in this sub- section (as calculated under section 7703(a)(2) of this title); multiplied by (ii) the total number of such weighted student units for the agency. (4) Use of funds Any local educational agency that receives funds under this subsection shall use such funds for construction, as defined in section 7713(3) of this title. (b) School facility emergency and modernization grants authorized (1) In general From 60 percent of the amount appropriated for each fiscal year under section 7714(d) of this title, the Secretary— (A) shall award emergency grants in ac- cordance with this subsection to eligible local educational agencies to enable the agencies to carry out emergency repairs of school facilities; and (B) shall award modernization grants in accordance with this subsection to eligible local educational agencies to enable the agencies to carry out the modernization of school facilities. (2) Priority In approving applications from local edu- cational agencies for emergency grants and modernization grants under this subsection, the Secretary shall give priority to applica- tions in accordance with the following: (A) The Secretary shall first give priority to applications for emergency grants from Page 1603 TITLE 20—EDUCATION § 7707 local educational agencies that meet the re- quirements of paragraph (3)(A) and, among such applications for emergency grants, shall give priority to those applications of local educational agencies based on the se- verity of the emergency, as determined by the Secretary. (B) The Secretary shall next give priority to applications for emergency grants from local educational agencies that meet the re- quirements of subparagraph (C) or (D) of paragraph (3) and, among such applications for emergency grants, shall give priority to those applications of local educational agen- cies based on the severity of the emergency, as determined by the Secretary. (C) The Secretary shall next give priority to applications for modernization grants from local educational agencies that meet the requirements of paragraph (3)(B) and, among such applications for modernization grants, shall give priority to those applica- tions of local educational agencies based on the severity of the need for modernization, as determined by the Secretary. (D) The Secretary shall next give priority to applications for modernization grants from local educational agencies that meet the requirements of subparagraph (C) or (D) of paragraph (3) and, among such applica- tions for modernization grants, shall give priority to those applications of local edu- cational agencies based on the severity of the need for modernization, as determined by the Secretary. (3) Eligibility requirements (A) Emergency grants A local educational agency is eligible to receive an emergency grant under paragraph (2)(A) if— (i) the agency (or in the case of a local educational agency that does not have the authority to tax or issue bonds, the agen- cy’s fiscal agent)— (I) has no practical capacity to issue bonds; (II) has minimal capacity to issue bonds and is at not less than 75 percent of the agency’s limit of bonded indebted- ness; or (III) does not meet the requirements of subclauses (I) and (II) but is eligible to receive funds under section 7703(b)(2) of this title for the fiscal year; and (ii) the agency is eligible to receive as- sistance under subsection (a) for the fiscal year and has a school facility emergency, as determined by the Secretary, that poses a health or safety hazard to the students and school personnel assigned to the school facility. (B) Modernization grants A local educational agency is eligible to receive a modernization grant under para- graph (2)(C) if— (i) the agency is eligible to receive as- sistance under this subchapter for the fis- cal year; (ii) the agency (or in the case of a local educational agency that does not have the authority to tax or issue bonds, the agen- cy’s fiscal agent) meets the requirements of subclause (I), (II), or (III) of subpara- graph (A)(i); and (iii) the agency has facility needs result- ing from the presence of the Federal Gov- ernment, such as the enrollment of feder- ally connected children, the presence of tax-exempt Federal property, or an in- crease in enrollment due to the expansion of Federal activities, housing privatiza- tion, or the acquisition of Federal prop- erty. (C) Additional eligibility for emergency and modernization grants (i) A local educational agency is eligible to receive an emergency grant or a moderniza- tion grant under subparagraph (B) or (D) of paragraph (2), respectively, if the agency meets the following requirements: (I) The agency receives a basic support payment under section 7703(b) of this title for the fiscal year and the agency meets at least one of the following requirements: (aa) The number of children deter- mined under section 7703(a)(1)(C) of this title for the agency for the preceding school year constituted at least 40 per- cent of the total student enrollment in the schools of the agency during the pre- ceding school year. (bb) The number of children deter- mined under subparagraphs (B) and (D)(i) of section 7703(a)(1) of this title for the agency for the preceding school year constituted at least 40 percent of the total student enrollment in the schools of the agency during the preceding school year. (cc) Not less than 10 percent of the property acreage in the agency is exempt from State and local taxation under Fed- eral law. (II) The agency (or in the case of a local educational agency that does not have the authority to tax or issue bonds, the agen- cy’s fiscal agent) is at not less than 75 per- cent of the agency’s limit of bonded in- debtedness. (III) The agency has an assessed value of real property per student that may be taxed for school purposes that is less than the average of the assessed value of real property per student that may be taxed for school purposes in the State in which the local educational agency is located. (ii) A local educational agency is also eli- gible to receive a modernization grant under this subparagraph if the agency is eligible to receive assistance under section 7702 of this title for the fiscal year and meets the re- quirements of subclauses (II) and (III) of clause (i). (D) Special rule (i) In general Any school described in clause (ii) that desires to receive an emergency grant or a modernization grant under subparagraph Page 1604 TITLE 20—EDUCATION § 7707 (B) or (D) of paragraph (2), respectively, shall, except as provided in the following sentence, submit an application in accord- ance with paragraph (6), and shall other- wise be treated as a local educational agency for the purpose of this subsection. The school shall submit an application for the grant to the local educational agency of such school and the agency shall submit the application on behalf of the school to the Secretary. (ii) School described A school described in this clause is a school that meets the following require- ments: (I) The school is located within the ge- ographic boundaries of a local edu- cational agency that does not meet the applicable eligibility requirements under subparagraph (A), (B), or (C) for a grant under this subsection. (II) The school meets at least one of the following requirements: (aa) The number of children deter- mined under section 7703(a)(1)(C) of this title for the school for the pre- ceding school year constituted at least 40 percent of the total student enroll- ment in the school during the pre- ceding school year. (bb) The number of children deter- mined under subparagraphs (B) and (D)(i) of section 7703(a)(1) of this title for the school for the preceding school year constituted at least 40 percent of the total student enrollment in the school during the preceding school year. (III) The school is located within the geographic boundaries of a local edu- cational agency that meets the require- ments of subclauses (II) and (III) of sub- paragraph (C)(i). (E) Rule of construction For purposes of subparagraph (A)(i), a local educational agency— (i) has no practical capacity to issue bonds if the total assessed value of real property that may be taxed for school pur- poses is less than $25,000,000; and (ii) has minimal capacity to issue bonds if the total assessed value of real property that may be taxed for school purposes is at least $25,000,000 but not more than $50,000,000. (4) Award criteria In awarding emergency grants and mod- ernization grants under this subsection, the Secretary shall consider the following factors: (A) The ability of the local educational agency to respond to the emergency, or to pay for the modernization project, as the case may be, as measured by— (i) the agency’s level of bonded indebted- ness; (ii) the assessed value of real property per student that may be taxed for school purposes compared to the average of the assessed value of real property per student that may be taxed for school purposes in the State in which the agency is located; (iii) the agency’s total tax rate for school purposes (or, if applicable, for cap- ital expenditures) compared to the average total tax rate for school purposes (or the average capital expenditure tax rate, if ap- plicable) in the State in which the agency is located; and (iv) funds that are available to the agen- cy, from any other source, including sub- section (a), that may be used for capital expenditures. (B) The percentage of property in the agency that is nontaxable due to the pres- ence of the Federal Government. (C) The number and percentages of chil- dren described in subparagraphs (A), (B), (C), and (D) of section 7703(a)(1) of this title served in the school facility with the emer- gency or served in the school facility pro- posed for modernization, as the case may be. (D) In the case of an emergency grant, the severity of the emergency, as measured by the threat that the condition of the school facility poses to the health, safety, and well- being of students. (E) In the case of a modernization grant— (i) the severity of the need for mod- ernization, as measured by such factors as— (I) overcrowding, as evidenced by the use of portable classrooms, or the poten- tial for future overcrowding because of increased enrollment; or (II) the agency’s inability to utilize technology or offer a curriculum in ac- cordance with contemporary State standards due to the physical limitations of the current school facility; and (ii) the age of the school facility pro- posed for modernization. (5) Other award provisions (A) General provisions (i) Limitations on amount of funds (I) In general The amount of funds provided under an emergency grant or a modernization grant awarded under this subsection to a local educational agency that meets the requirements of subclause (II) or (III) of paragraph (3)(A)(i) for purposes of eligi- bility under subparagraph (A) or (B) of paragraph (3) or that meets the require- ments of clause (i) or (ii) of paragraph (3)(C) for purposes of eligibility under such paragraph (3)(C), or to a school that is eligible under paragraph (3)(D)— (aa) shall not exceed 50 percent of the total cost of the project to be assisted under this subsection; and (bb) shall not exceed $4,000,000 during any 4-year period. (II) In-kind contributions A local educational agency may use in- kind contributions to meet the matching requirement of subclause (I)(aa). Page 1605 TITLE 20—EDUCATION § 7707 (ii) Prohibitions on use of funds A local educational agency may not use funds provided under an emergency grant or modernization grant awarded under this subsection for— (I) a project for a school facility for which the agency does not have full title or other interest; (II) stadiums or other school facilities that are primarily used for athletic con- tests, exhibitions, or other events for which admission is charged to the gen- eral public; or (III) the acquisition of real property. (iii) Supplement, not supplant A local educational agency shall use funds provided under an emergency grant or modernization grant awarded under this subsection only to supplement the amount of funds that would, in the absence of the Federal funds provided under the grant, be made available from non-Federal sources to carry out emergency repairs of school facilities or to carry out the moderniza- tion of school facilities, as the case may be, and not to supplant such funds. (iv) Maintenance costs Nothing in this subsection shall be con- strued to authorize the payment of main- tenance costs in connection with any school facility modernized in whole or in part with Federal funds provided under this subsection. (v) Environmental safeguards All projects carried out with Federal funds provided under this subsection shall comply with all relevant Federal, State, and local environmental laws and regula- tions. (vi) Carry-over of certain applications A local educational agency that applies for an emergency grant or a modernization grant under this subsection for a fiscal year and does not receive the grant for the fiscal year shall have the application for the grant considered for the following fis- cal year, subject to the priority require- ments of paragraph (2) and the award cri- teria requirements of paragraph (4). (B) Emergency grants; prohibition on use of funds A local educational agency that is awarded an emergency grant under this subsection may not use amounts under the grant for the complete or partial replacement of an existing school facility unless such replace- ment is less expensive or more cost-effective than correcting the identified emergency. (6) Application A local educational agency that desires to receive an emergency grant or a moderniza- tion grant under this subsection shall submit an application to the Secretary at such time and in such manner as the Secretary may re- quire. Each application shall contain the fol- lowing: (A) A description of how the local edu- cational agency meets the award criteria under paragraph (4), including the informa- tion described in clauses (i) through (iv) of paragraph (4)(A) and subparagraphs (B) and (C) of paragraph (4), and containing such ad- ditional information as may be necessary to meet any award criteria for a grant under this subsection as provided by any other Act. (B) In the case of an application for an emergency grant— (i) a description of the school facility de- ficiency that poses a health or safety haz- ard to the occupants of the facility and a description of how the deficiency will be repaired; and (ii) a signed statement from an appro- priate local official certifying that a defi- ciency in the school facility threatens the health or safety of the occupants of the fa- cility or that prevents the use of all or a portion of the building. (C) In the case of an application for a mod- ernization grant— (i) an explanation of the need for the school facility modernization project; (ii) the date on which original construc- tion of the facility to be modernized was completed; (iii) a listing of the school facilities to be modernized, including the number and per- centage of children determined under sec- tion 7703(a)(1) of this title in average daily attendance in each school facility; and (iv) a description of the ownership of the property on which the current school facil- ity is located or on which the planned school facility will be located. (D) A description of the project for which a grant under this subsection will be used, including a cost estimate for the project. (E) A description of the interest in, or au- thority over, the school facility involved, such as an ownership interest or a lease ar- rangement. (Pub. L. 89–10, title VII, § 7007, formerly title VIII, § 8007, as added Pub. L. 103–382, title I, § 101, Oct. 20, 1994, 108 Stat. 3763; amended Pub. L. 104–134, title I, § 101(d) [title III, § 306(b)], Apr. 26, 1996, 110 Stat. 1321–211, 1321–236; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327; Pub. L. 106–398, § 1 [[div. A], title XVIII, § 1811], Oct. 30, 2000, 114 Stat. 1654, 1654A–383; Pub. L. 107–110, title VIII, § 803, Jan. 8, 2002, 115 Stat. 1950; Pub. L. 113–188, title V, § 501, Nov. 26, 2014, 128 Stat. 2019; renumbered title VII, § 7007, and amended Pub. L. 114–95, title VII, §§ 7001(c)(2), (d)(1), (3)–(8), (11), 7007, Dec. 10, 2015, 129 Stat. 2074, 2075, 2086.) Editorial Notes AMENDMENTS 2015—Pub. L. 114–95, § 7001(d)(11), substituted ‘‘section 7714(d) of this title’’ for ‘‘section 7714(e) of this title’’ wherever appearing. Pub. L. 114–95, § 7001(d)(4), made technical amendment to references in original act which appear in text as references to section 7703(a)(1)(C) of this title wherever appearing. Pub. L. 114–95, § 7001(d)(3), made technical amendment to references in original act which appear in text as Page 1606 TITLE 20—EDUCATION § 7708 1 See References in Text note below. references to section 7703(a)(1) of this title wherever ap- pearing. Subsec. (a)(1). Pub. L. 114–95, § 7001(d)(6), made tech- nical amendment to reference in original act which ap- pears in text as reference to section 7703(b) of this title. Subsec. (a)(2). Pub. L. 114–95, § 7001(d)(7), made tech- nical amendment to reference in original act which ap- pears in introductory provisions as reference to section 7703(b)(1) of this title. Subsec. (a)(3)(A)(i)(I). Pub. L. 114–95, § 7007(1)(A)(i), re- designated subcl. (II) relating to 20 percent of the amount appropriated as (I). Subsec. (a)(3)(A)(i)(II). Pub. L. 114–95, § 7007(1)(A)(ii), made technical amendment to reference in original act which appears in text as reference to section 7708(a) of this title. Pub. L. 114–95, § 7007(1)(A)(i), redesignated subcl. (II) relating to 20 percent of the amount appropriated as (I). Pub. L. 114–95, § 7001(d)(5), made technical amendment to reference in original act which appears in text as reference to section 7703(a)(2) of this title. Subsec. (a)(3)(B)(i)(II). Pub. L. 114–95, § 7001(d)(5), made technical amendment to reference in original act which appears in text as reference to section 7703(a)(2) of this title. Subsec. (a)(4). Pub. L. 114–95, § 7007(1)(B), made tech- nical amendment to reference in original act which ap- pears in text as reference to section 7713(3) of this title. Subsec. (b)(3)(A)(i)(III). Pub. L. 114–95, § 7001(d)(8), made technical amendment to reference in original act which appears in text as reference to section 7703(b)(2) of this title. Subsec. (b)(3)(C)(i)(I). Pub. L. 114–95, § 7001(d)(6), made technical amendment to reference in original act which appears in introductory provisions as reference to sec- tion 7703(b) of this title. Subsec. (b)(3)(C)(i)(I)(cc). Pub. L. 114–95, § 7007(2)(A), added item (cc). Subsec. (b)(3)(C)(ii). Pub. L. 114–95, § 7001(d)(1), made technical amendment to reference in original act which appears in text as reference to section 7702 of this title. Subsec. (b)(6). Pub. L. 114–95, § 7007(2)(B)(i), in intro- ductory provisions, substituted ‘‘and in such manner’’ for ‘‘, in such manner, and accompanied by such infor- mation’’. Subsec. (b)(6)(A). Pub. L. 114–95, § 7007(2)(B)(ii), in- serted before period at end ‘‘, and containing such addi- tional information as may be necessary to meet any award criteria for a grant under this subsection as pro- vided by any other Act’’. Subsec. (b)(6)(F). Pub. L. 114–95, § 7007(2)(B)(iii), struck out subpar. (F) which read as follows: ‘‘Such other information and assurances as the Secretary may reasonably require.’’ 2014—Subsec. (b)(7). Pub. L. 113–188 struck out par. (7) which required annual reports containing justifications for each grant awarded under subsec. (b) for the prior fiscal year. 2002—Subsec. (b). Pub. L. 107–110 amended heading and text generally, reorganizing and revising provisions relating to emergency and modernization grants. 2000—Pub. L. 106–398 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (c) authorizing payments to certain local educational agencies for construction. 1996—Subsec. (a)(2)(B). Pub. L. 104–134 struck out ‘‘and in which the agency at any 2 times during the four fiscal years preceding October 20, 1994, was denied by a vote of the agency’s eligible voters a bond ref- erendum for the purposes of school construction or ren- ovation’’ before semicolon at end. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Amendment by Pub. L. 114–95 effective Dec. 10, 2015, and effective with respect to appropriations for use under this subchapter beginning fiscal year 2017, except as otherwise provided in such amendment, see section 5 of Pub. L. 114–95, set out as a note under section 6301 of this title. EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–110 effective Jan. 8, 2002, and effective with respect to appropriations for use under this subchapter for fiscal year 2002, see section 5 of Pub. L. 107–110, set out as an Effective Date note under section 6301 of this title. § 7708. Facilities (a) Current facilities From the amount appropriated for any fiscal year under section 7714(e) of this title, the Sec- retary may continue to provide assistance for school facilities that were supported by the Sec- retary under section 10 of the Act of September 23, 1950 (Public Law 815, 81st Congress) (as such Act was in effect on the day preceding October 20, 1994). (b) Transfer of facilities (1) In general The Secretary shall, as soon as practicable, transfer to the appropriate local educational agency or another appropriate entity all the right, title, and interest of the United States in and to each facility provided under section 10 of the Act of September 23, 1950 1 (Public Law 815, 81st Congress), or under section 204 or 310 of the Act of September 30, 1950 1 (Public Law 874, 81st Congress) (as such Acts were in effect on January 1, 1958). (2) Other requirements Any such transfer shall be without charge to such agency or entity, and prior to such trans- fer, the transfer shall be consented to by the local educational agency or other appropriate entity, and may be made on such terms and conditions as the Secretary deems appropriate to carry out the purposes of this subchapter. (Pub. L. 89–10, title VII, § 7008, formerly title VIII, § 8008, as added Pub. L. 103–382, title I, § 101, Oct. 20, 1994, 108 Stat. 3764; renumbered title VII, § 7008, and amended Pub. L. 114–95, title VII, §§ 7001(c)(2), 7008, Dec. 10, 2015, 129 Stat. 2074, 2086.) Editorial Notes REFERENCES IN TEXT Section 10 of the Act of September 23, 1950 (Public Law 815, 81st Congress) (as such Act was in effect on the day preceding October 20, 1994), referred to in subsec. (a), means section 10 of act Sept. 23, 1950, ch. 995, which was classified to section 640 of this title prior to repeal by Pub. L. 103–382, title III, § 331(a), Oct. 20, 1994, 108 Stat. 3965. Section 10 of the Act of September 23, 1950 (Public Law 815, 81st Congress) (as such Act was in effect on January 1, 1958), referred to in subsec. (b)(1), probably means section 10 of act Sept. 23, 1950, ch. 995, as added by Pub. L. 85–620, title I, § 101, Aug. 12, 1958, 72 Stat. 553, as amended, which was classified to section 640 of this title prior to repeal by Pub. L. 103–382, title III, § 331(a), Oct. 20, 1994, 108 Stat. 3965. The act Sept. 23, 1950, did not contain a section 10 on Jan. 1, 1958. Sections 204 and 310 of the Act of September 30, 1950 (Public Law 874, 81st Congress) (as such Act was in ef- fect on January 1, 1958), referred to in subsec. (b)(1),