(1) that, as a direct result of activities of the United States (carried on either directly or through a contractor), an increase in the number of children in average daily attendance at the schools of any local educational agency has occurred in such fiscal year, which increase so resulting from activities of the United States is equal to at least 5 per centum of the difference between the number of children in average daily attendance at the schools of such agency during the preceding fiscal year and the number of such children whose attendance during such year resulted from activities of the United States (including children who resided on Federal property or with a parent employed on Federal property); and

(2) that such activities of the United States have placed on such agency a substantial and continuing financial burden; and

(3) that such agency is making a reasonable tax effort and is exercising due diligence in availing itself of State and other financial assistance but is unable to secure sufficient funds to meet the increased educational costs involved,

then such agency shall be entitled to receive for such fiscal year an amount equal to the product of

(A) the number of children which the Commissioner determines to be the increase, so resulting from activities of the United States, in such year in average daily attendance; and (B) the amount which the Commissioner determines to be the current expenditures per child necessary to provide free public education to such additional children during such year, minus the amount which the Commissioner determines to be available from State, local, and Federal sources for such purpose (not counting as available for such purpose either payments under this chapter or funds from local sources necessary to provide free public education to other children). For the next fiscal year (except where the determination under the preceding sentence has been made with respect to the fiscal year ending June 30, 1973) such agency shall be entitled to receive 50 per centum of such product reduced by the amount of such product which is attributable to children with respect to whom such agency is, or upon application would be, entitled to receive any payment under section 238 of this title for such fiscal year, but not to exceed for such year the amount which the Commissioner determines to be necessary to enable such agency, with the State, local, and other Federal funds (exclusive of funds available under subchapter II of this chapter) available to it for such purpose, to provide a level of education equivalent to that maintained in the school districts in such State which in his judgment are generally comparable to the school district of such agency. The determinations whether an increase has occurred for purposes of clause (1) of this subsection and whether such increase meets the 5 per centum requirement contained in such clause, for any fiscal year, shall be made on the basis of estimates by the Commissioner made prior to the close of such year, except that an underestimate made by the Commissioner pursuant to the foregoing provisions of this sentence shall not operate to deprive an agency of its entitlement to any payments under this section to which it would be entitled had the estimate been accurate. The determination under clause (B) of this subsection shall be made by the Commissioner after considering the current expenditures

per child in providing free public education in those school districts in the State which, in the judgment of the Commissioner, are generally comparable to the school district of the local educational agency for which the computation is being made.

(b) Omitted.

(c) Counting of certain children in determination of increases.

In determining under subsection (a) of this section whether there has been an increase in attendance in any fiscal year directly resulting from activities of the United States and the number of children with respect to whom payment is to be made for any fiscal year, the Commissioner shall not count

(A) children with respect to whom a local educational agency is, or upon application would be, entitled to receive any payment under section 238 of this title for such fiscal year: Provided, That the Commissioner shall count for such purposes as an increase directly resulting from activities of the United States, an increase in the number of children who reside on Federal property or reside with a parent employed on Federal property, if the local educational agency files, in accordance with regulations of the Commissioner, its election that such increase be counted for such purposes instead of for the purposes of section 238 of this title; and

(B) children whose attendance is attributable to activities of the United States carried on in connection with real property which has been excluded from the definition of Federal property by the last sentence of paragraph (1) of section 244 of this title.

(d) Adjustment for decreases in Federal activi ties.

Whenever the Commissioner determines that(1) a local educational agency has made preparations to provide during a fiscal year free public education for a certain number of children to whom subsection (a) of this section applies;

(2) such preparations were in his judgment reasonable in the light of the information available to such agency at the time such preparations were made; and

(3) such number has been substantially reduced by reason of a decrease in or cessation of Federal activities or by reason of a failure of any of such activities to occur,

the amount to which such agency is otherwise entitled under this section for such year shall be increased to the amount to which, in the judg ment of the Commissioner, such agency would have been entitled but for such decrease in or cessation of Federal activities or the failure of such activities to occur, minus any reduction in current expenditures for such year which the Commissioner determines that such agency has effected, or reasonably should have effected, by reason of such decrease in or cessation of Federal activities or the failure of such activities to occur. (e) Consultation with State and local authorities.

All determinations of the Commissioner under this section shall be made only after consultation with the State educational agency and the local educational agency. (Sept. 30, 1950, ch. 1124, § 4, 64 Stat. 1104; Aug. 8, 1953, ch. 402, §§ 3-5, 67 Stat, 552; Aug. 12, 1955, ch. 868, §§ 1, 2, 69 Stat. 713; Aug 3, 1956, ch. 915, title II, §§ 207, 208, 70 Stat. 972; Aug. 12, 1958, Pub. L. 85-620, title II, § 203, 72

Stat. 560; Oct. 3, 1961, Pub. L. 87-344, title I, § 102(a), 79 Stat. 759; Dec. 18, 1963, Pub. L. 88-210, title III, § 302, formerly § 32, 77 Stat. 419, renumbered Oct. 16, 1963, Pub. L. 90-576, title I, § 101(a)(1), 82 Stat. 1064, Oct. 16, 1964, Pub. L. 88665, title XI, § 1102(a), 79 Stat. 1109; Apr. 11, 1965, Pub. L. 89-10, title I, §§ 3(b), 5, 79 Stat. 34, 36; Jan. 2, 1968, Pub. L. 90-247, title III, § 301(e), 81 Stat. 813; Apr. 13, 1970, Pub. L. 91-230, title II, § 201(b), 84 Stat. 154.)

(b) Payment.

The Commissioner shall, subject to the provisions of subsection (c) of this section, from time to time pay to each local educational agency, in advance or otherwise, the amount which he estimates such agency is entitled to receive under this subchapter. Such estimates shall take into account the extent (if any) to which any previous estimate of the amount to be paid such agency under this subchapter (whether or not in the same fiscal year) was greater or less than the amount which should have been paid to it. Such payments shall be made through the disbursing facilities of the Department of the Treasury and prior to audit or settlement by the General Accounting Office. Sums appropriated pursuant to this subchapter for any fiscal year shall remain available, for obligation and payments with respect to amounts due local educational agencies under this subchapter for such year, until the close of the following fiscal year.

(c) Adjustments where necessitated by appropriations.

(1) If the funds appropriated for any fiscal year for making payments under this subchapter are not sufficient to pay in full the total amounts which the Commissioner estimates all local educational agencies will be entitled to receive under this subchapter for such year, the Commissioner (A) shall determine the part of the entitlement of each such local educational agency which is attributable to determinations under subsections (a) and (b) of section 238 of this title of the number of children who resided on, or resided with a parent employed on, property which is part of a low-rent housing project assisted under the United States Housing Act of 1937, section 516 of the Housing Act of 1949, or part B of title III of the Economic Opportunity Act of 1964, and (B) except as otherwise provided in paragraph (3), shall allocate such funds, other than so much thereof as he estimates may be required for carrying out the provisions of section 241 of this title, among sections 237, 238 and 239(a) of this title in the proportion that the amount he estimates to be required under each such section bears to the total estimated to be required under all such sections, except that he shall not take into consideration any part of any entitlement determined under clause (A). The amount so allocated to any such section shall be available for payment of a percentage of the

amount to which each local educational agency is entitled under such section. Such percentage shall be equal to the percentage which the amount allocated to a section under the second sentence of this paragraph is of the amount to which all such agencies are entitled under such section. For the purposes of this paragraph, in determining the amount to which each local educational agency is entitled under section 238 of this title he shall include any increases under paragraph (4) of subsection (c) thereof; but he shall exclude any part of any entitlement determined under clause (A) of this paragraph.

(2) If the funds available for allocation under paragraph (1) for any fiscal year exceed the amount necessary to fully satisfy entitlements for which allocations will be made under such paragraph, that excess shall be available for payment of a percentage of that part of the entitlement of each local educational agency determined under clause (A) of paragraph (1). Such percentage shall be equal to the percentage which the amount of such excess is of the total amount to which all such agencies are so entitled.

(3) All funds appropriated for making payments under this subchapter for any fiscal year shall be allocated in the manner specified in paragraphs (1) and (2), unless an Act making appropriations for making payments under this title for any fiscal year specifically makes funds available for payments on the basis of entitlements determined under clause (A) of paragraph (1), apart from other payments under this subchapter, in which case, if the funds so appropriated are not sufficient to pay in full the total amount to which all local educational agencies are so entitled, such funds shall be available for making payments in the manner specified in paragraph (2) respecting allocations of any excess appropriations.

(4) In case the amount allocated to a section under paragraph (1) for a fiscal year exceeds the total to which all local educational agencies are entitled under such section for such year or, in case additional funds become available for making payments under this subchapter, the excess or such additional funds, as the case may be, shall be allocated among sections for which previous allocations, are inadequate, on the same basis as is provided in paragraphs (1), (2), and (3) for the initial allocation.

(d) Adjustments for reduction in State aid. (1) The amount which a local educational agency in any State is otherwise entitled to receive under section 237, 238, or 239 of this title for any fiscal year shall be reduced in the same proportion (if any) that the State has reduced for that year its aggregate expenditures (from nonFederal sources) per pupil for current expenditure purposes for free public education (as determined pursuant to regulations of the Commissioner) below the level of such expenditures per pupil in the second preceding fiscal year. The Commissioner may waive or reduce this reduction whenever in his judgment exceptional circumstances exist which would make its application inequitable and would defeat the purpose of this subchapter.

(2) No payments may be made during any fiscal year to any local educational agency in any State which has taken into consideration payments under this subchapter in determining the eligibility of any local educational agency in that State for State aid (as defined by regulation), or the amount of that aid, with respect to free public education during that year or the preceding fiscal year, or which makes such aid available to local educational agencies in such a manner as to

result in less State aid to any local educational agency which is eligible for payments under this subchapter than such local educational agency would receive if it were not so eligible. (Sept. 30, 1950, ch. 1124, § 5, 64 Stat. 1106; Aug. 8, 1953, ch. 402, §§ 6, 7, 67 Stat. 534; Aug. 3, 1956, ch. 915, title II, § 209, 70 Stat. 972; Apr. 11, 1965, Pub. L. 89-10, title I, § 2, 79 Stat. 27; Nov. 3, 1966, Pub. L. 89-750, title II, §§ 202, 203, 80 Stat. 1211, 1212; Oct. 16, 1968, Pub. L. 90-576, title III, § 305(a), 82 Stat. 1097; Apr. 13, 1970, Pub. L. 91-230, title II, § 203 (cX4), 84 Stat. 156.)

§ 241. Education of children where local agencies cannot supply facilities.

(a) Necessary arrangements by Commissioner; standard of education.

In the case of children who reside on Federal property

(1) if no tax revenues of the State or any political subdivision thereof may be expended for the free public education of such children; or (2) if it is the judgment of the Commissioner, after he has consulted with the appropriate State educational agency, that no local educational agency is able to provide suitable free public education for such children, the Commissioner shall make such arrangements (other than arrangements with respect to the acquisition of land, the erection of facilities, interest, or debt service) as may be necessary to provide free public education for such children. Such arrangements to provide free public education may also be made for children of members of the Armed Forces on active duty, if the schools in which free public education is usually provided for such children are made unavailable to them as a result of official action by State or local governmental authority and it is the judgment of the Commissioner, after he has consulted with the appropriate State educational agency, that no local educational agency is able to provide_suitable free public education for such children. To the maximum extent practicable, the local educational agency, or the head of the Federal department or agency, with which any arrangement is made under this section, shall take such action as may be necessary to ensure that the education provided pursuant to such arrangement is comparable to free public education provided for children in comparable communities in the State, or, in the case of education provided under this section outside the continental United States, Alaska, and Hawaii, comparable to free public education provided for children in the District of Columbia. For the purpose of providing such comparable education, personnel may be employed and the compensation, tenure, leave, hours of work, and other incidents of the employment relationship may be fixed without regard to the Civil Service Act and rules and the following: (1) the Classification Act of 1949, as amended; (2) the Annual and Sick Leave Act of 1951, as amended; (3) the Federal Employees' Pay Act of 1945, as amended; (4) the Veterans' Preference Act of 1944, as amended; and (5) the Performance Rating Act of 1950, as amended. In any case where education was being provided on January 1, 1955, or thereafter under an arrangement made under this subsection for children residing on an Army, Navy (including the Marine Corps), or Air Force installation, it shall be presumed, for the purposes of this subsection, that no local educational agency is able to provide suitable free public education for the children residing on such installation, until the Commissioner and the Secretary

of the military department concerned jointly determine, after consultation with the appropriate State educational agency, that a local educational agency is able to do so.

(b) Education of children in adjacent areas.

In any case in which the Commissioner makes such arrangements for the provision of free public education in facilities situated on Federal property, he may also make arrangements for providing free public education in such facilities for children residing in any area adjacent to such property with a parent who, during some portion of the fiscal year in which such education is provided, was employed on such property, but only if the Commissioner determines after consultation with the appropriate State educational agency (1) that the provision of such education is appropriate to carry out the purposes of this subchapter, (2) that no local educational agency is able to provide suitable free public education for such children, and (3) in any case where in the judgment of the Commissioner the need for the provision of such education will not be temporary in duration, that the local educational agency of the school district in which such children reside, or the State educational agency, or both, will make reasonable tuition payments to the Commissioner for the education of such children. Such payments may be made either directly or through deductions from amounts to which the local educational agency is entitled under this subchapter, or both, as may be agreed upon between such agency and the Commissioner. Any amounts paid to the Commissioner by a State or local educational agency pursuant to this section shall be covered into the Treasury as miscellaneous receipts.

(d) Restrictions on making arrangements.

The Commissioner may make an arrangement under this section only with a local educational agency or with the head of a Federal department or agency administering Federal property on which children reside who are to be provided education pursuant to such arrangement or, in the case of children to whom the second sentence of subsection (a) of this section applies, with the head of any Federal department or agency having jurisdiction over the parents of some or all of such children. Except where the Commissioner makes arrangements pursuant to the second sentence of subsection (a) of this section, arrangements may be made under this section only for the provision of education in facilities of a local educational agency or in facilities situated on Federal property.

(e) Limit on payments.

To the maximum extent practicable, the Commissioner shall limit the total payments made pursuant to any such arrangement for educating children within the continental United States, Alaska, or Hawaii, to an amount per pupil which will not exceed the per pupil cost of free public education provided for children in comparable communities in the State. The Commissioner shall limit the total payments made pursuant to any such arrangement for educating children outside the continental United States, Alaska, or Hawaii, to an amount per pupil which will not exceed the amount he determines to be necessary to provide education comparable to the free public education provided for children in the District of Columbia. (f) Children living on Federal property.

If no tax revenues of a State or of any political

subdivision of the State may be expended for the free public education of children who reside on any Federal property within the State, or if no tax revenues of a State are allocated for the free public education of such children, then the property on which such children reside shall not be considered Federal property for the purposes of sections 238 and 239 of this title. If a local educational agency refuses for any other reason to provide in any fiscal year free public education for children who reside on Federal property which is within the school district of that agency or which, in the determination of the Commissioner, would be within that school district if it were not Federal property, there shall be deducted from any amount to which the local educational agency is otherwise entitled for that year under section 238 or 239 of this title an amount equal to (1) the amount (if any) by which the cost to the Commissioner of providing free public education for that year for each such child exceeds the local contribution rate of that agency for that year, multiplied by (2) the number of such children. (Sept. 30, 1950, ch. 1124, § 6, 64 Stat. 1107; Aug. 8, 1953, ch. 402, § 8, 67 Stat 535; Aug. 1, 1955, ch. 446, 69 Stat. 433; Aug. 1, 1956, ch. 852, § 10, 70 Stat. 909; May 6, 1960, Pub. L. 86-449, title V, § 501, 74 Stat. 89; Apr. 11, 1965, Pub. L. 89-10, title I, §§ 2, 4(dX2), 79 Stat. 27, 35; July 21, 1965, Pub. L. 89-77, § 2, 79 Stat. 243; Nov. 3, 1966, Pub. L. 89-750, title II, § 204, 80 Stat. 1212; Apr. 13, 1970, Pub. L. 91-230, title IV, § 401(fX1), 84 Stat. 173.)

Subchapter II.-Assistance to Local Educational Agencies for the Education of Children of Low-Income Families

§ 241a. Congressional declaration of policy.

In recognition of the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs, the Congress hereby declares it to be the policy of the United States to provide financial assistance (as set forth in the following parts of this subchapter) to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means (including preschool programs) which contribute particularly to meeting the special educational needs of educationally deprived children. (Sept. 30, 1950, ch. 1124, title I, 101, formerly title II, § 201, as added Apr. 11, 1965, Pub. L. 89-10, title I, § 2, 79 Stat. 27, renumbered and amended Jan. 2, 1968, Pub. L. 90-247, title I, §§ 108(a)(2), 110, 81 Stat. 786, 787; Apr. 13, 1970, Pub. L. 91-230, title I, § 113(b)(2), 84 Stat. 126.)

§ 241b. Payments to State educational agencies; duration.

The Commissioner shall, in accordance with the provisions of this subchapter, make payments to State educational agencies for the period beginning July 1, 1965, and ending June 30, 1973. (Sept. 30, 1950, ch. 1124, title I, § 102, formerly title II, § 202, as added Apr. 11, 1965, Pub. L. 89-10, title I, § 2, 79 Stat. 27, amended Nov. 3, 1966, Pub. L. 89750, title I, § 101, 80 Stat. 1191, and renumbered and amended Jan. 2, 1968, Pub. L. 90-247, title I, §§ 108(a)(2), 110, title III, § 301(a), 81 Stat. 786, 787, 813; Apr. 13, 1970, Pub. L. 91-230, title I, §§ 101(a), 113(b)3), 84 Stat. 121, 126.)

PART A.-BASIC GRANTS

§ 241c. Grants.

(a) Determination of grants; eligibility of State educational agency or other State or local public agency for grant.

(1)(A) There is hereby authorized to be appropriated for each fiscal year for the purposes of this paragraph an amount equal to not more than 3 per centum of the amount appropriated for such year for payments to States under section 241g(a) of this title (other than payments under such section to jurisdictions excluded from the term "State" by this subsection). The Commissioner shall allot the amount appropriated pursuant to this paragraph among Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands according to their respective need for such grants. In addition he shall allot from such amount to the Secretary of the Interior the amount necessary to make payments pursuant to subparagraph (B) of this paragraph, and for the fiscal year ending June 30, 1968, and each of the succeeding fiscal years ending prior to July 1, 1972, the amount necessary to meet the special educational needs of educationally deprived children on reservations serviced by elementary and secondary schools operated for Indian children by the Department of the Interior. The maximum grant which a local educational agency in Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands shall be eligible to receive and the terms upon which payment shall be made to the Department of the Interior shall be determined pursuant to each criteria as the Commissioner determines will best carry out the purposes of this part.

(B) The terms on which payment shall be made to the Department of the Interior shall include provision for payments by the Secretary of the Interior to local educational agencies with respect to out-of-State Indian children in the elementary or secondary schools of such agencies under special contracts with that Department. The amount of any such payment may not exceed, for each such child, one-half the average per pupil expenditure in the State in which the agency is located.

(2) In any case in which the Commissioner determines that satisfactory data for that purpose are available, the maximum grant which a local educational agency in a State shall be eligible to receive under this part for any fiscal year shall be (except as provided in paragraph (3)) an amount equal to the Federal percentage (established pursuant to subsection (c) of this section) of the average per pupil expenditure in that State or, if greater, in the United States, multiplied by the number of children in the school district of such agency who are aged five to seventeen, inclusive, and are (A) in families having an annual income of less than the low-income factor (established pursuant to subsection (c) of this section), (B) in families receiving an annual income in excess of the low-income factor (established pursuant to subsection (c) of this section) from payments under the program of aid to families with dependent children under a State plan approved under title IV of the Social Security Act, or (C) living in institutions for neglected or delinquent children (other than such institutions operated by the United States) but not counted pursuant to paragraph (7) of this subsection for the purpose of a grant to a State agency, or being supported in foster homes with public funds. In any other case, the maximum grant for any local

educational agency in a State shall be determined on the basis of the aggregate maximum amount of such grants for all such agencies in the county or counties in which the school district of the particular agency is located, which aggregate maximum amount shall be equal to the Federal percentage of such per pupil expenditure multiplied by the number of children of such ages in such county or counties who are described in clause (A), (B), or (C) of the previous sentence, and shall be allocated among those agencies upon such equitable basis as may be determined by the State educational agency in accordance with basic criteria prescribed by the Commissioner. Notwithstanding the foregoing provisions of this paragraph, upon determination by the State educational agency that a local educational agency in the State is unable or unwilling to provide for the special educational needs of children, described in clause (C) of the first sentence of this paragraph, who are living in institutions for neglected or delinquent children, the State educational agency shall, if it assumes responsibility for the special educational needs of such children, be eligible to receive the portion of the allocation to such local educational agency which is attributable to such neglected or delinquent children, but if the State educational agency does not assume such responsibility, any other State or local public agency, as determined by regulations established by the Commissioner, which does assume such responsibility shall be eligible to receive such portion of the allocation.

(3)(A) If the maximum amount of the grant determined pursuant to paragraph (1) or (2) for any local educational agency for the fiscal year ending June 30, 1967, is greater than 50 per centum of the sum budgeted by that agency for current expenditures for that year (as determined pursuant to regulations of the Commissioner), such maximum amount shall be reduced to 50 per centum of such budgeted sum.

(B) In the case of local educational agencies which serve in whole or in part the same geographical area, and in the case of a local educational agency which provides free public education for a substantial number of children who reside in the school district of another local educational agency, the State educational agency may allocate the amount of the maximum grants for those agencies among them in such manner as it determines will best carry out the purposes of this part.

(4) For purposes of this subsection, except paragraphs (5) and (7), the term "State" does not include Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands.

(5) In the case of a State agency which is directly responsible for providing free public education for handicapped children (including mentally retarded, hard of hearing, deaf, speech impaired, visually handicapped, seriously emotionally disturbed, crippled or other health impaired children who by reason thereof require special education), the maximum grant which that agency shall be eligible to receive under this part for any fiscal year shall be an amount equal to the Federal percentage of the average per pupil expenditure in the State or, if greater, in the United States, multiplied by the number of such children in average daily attendance, as determined by the Commissioner, at schools for handicapped children operated or supported by the State agency, including schools providing special ed

ucation for handicapped children under contract or other arrangement with such State agency, in the most recent fiscal year for which satisfactory data are available. Such State agency shall use payments under this part only for programs and projects (including the acquisition of equipment and where necessary the construction of school facilities) which are designed to meet the special educational needs of such children.

(6) A State educational agency which has submitted and had approved an application under section 241e(c) of this title for any fiscal year shall be entitled to receive a grant for that year under this part, based on the number of migratory children of migratory agriculture workers to be served, for establishing or improving programs for such children. The maximum total of grants which may be made available for use in any State or any fiscal year shall be an amount equal to the Federal percentage of the average per pupil expenditure in that State or, if greater, in the United States multiplied by (A) the estimated number of such migratory children aged five to seventeen, inclusive, who reside in the State full time, and (B) the full-time equivalent of the estimated number of such migratory children aged five to seventeen, inclusive, who reside in the State part time, as determined by the Commissioner in accordance with regulations, except that if, in the case of any State, such amount exceeds the amount required under the preceding sentence and under section 241e(c)(2) of this title, the Commissioner shall allocate such excess, to the extent necessary, to other States whose maximum total of grants under this sentence would otherwise be insufficient for all such children to be served in such other States.

(7) In the case of a State agency which is directly responsible for providing free public education for children in institutions for neglected or delinquent children, the maximum grant which that agency shall be eligible to receive under this part for any fiscal year shall be an amount equal to the Federal percentage of the average per pupil expenditure in that State or, if greater, in the United States multiplied by the number of such children in average daily attendance, as determined by the Commissioner, at schools for such children operated or supported by that State agency, including schools providing education for such children under contract or other arrangement with such agency, in the most recent fiscal year for which satisfactory data are available. Such State agency shall use payments under this part only for programs and projects (including the acquisition of equipment and where necessary the construction of school facilities) which are designed to meet the special educational needs of such children.

(b) Eligibility of local educational agency for grant.

A local educational agency shall be eligible for a grant for a fiscal year under this part only if it meets the following requirements with respect to the number of children aged five to seventeen, inclusive, described in clauses (A), (B), and (C) of the first sentence of paragraph (2) of subsection (a) of this section:

(1) In any case (except as provided in paragraph (3)) in which the Commissioner determines that satisfactory data for the purpose of this subsection as to the number of such chil