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made whichever is later, except that a final report shall be made with respect to each fiscal year and submitted to the Commissioner not later than the 30th day of September in the following fiscal year with respect to the cost of providing

free public education at a preexisting E level (other than the cost of repair, res

toration or replacement of school facilities) and with respect to the leasing or otherwise providing of school and cafeteria facilities as temporary replacements.

(c) Excessive payments. The Com. missioner may disallow any portion of

the amounts requested which are determined by him not to be necessary for the intended purpose or not to be eligible for benefits under section 7 of the Act. If, after the date for filing a final report, an applicant is found to have received amounts in excess of the amounts necessary to continue to provide free public

education at a preexisting level, or to $lease or otherwise provide school or cafe

teria facilities as temporary replaceiments, for a given fiscal year, an amount E equal to the excess will be taken into * consideration in determining the

amounts to be subsequently certified for
payment to the applicant for the cur-
rent or any subsequent fiscal year.
Where no payments are due, the appli-
cant will be required to refund such ex-
cess to the United States Treasury
through the Commissioner.
§ 113.12 Inadequacy of Federal funds.

(a) If appropriated funds are inadequate to pay in full the requests contained in all approvable applications filed within the ninety (90) day filing period, the Commissioner will establish an order of priority for the approval of such applications. In determining the order in which such applications will be approved the Commissioner will consider the relative educational and finan

cial needs of the local educational agen# cies which have submitted approvable applications.

(b) Priority among approvable appli$cations filed within the 90-day filing pe

riod will be determined as follows: A priority will be determined among applications by ascertaining the percentage that the total Federal funds for which each applicant is estimated by the Commissioner to be eligible under the Act is of the total current operating costs of that applicant as estimated by the Com

missioner, including the increased costs due to the major disaster. § 113.13 Method of payment.

The Commissioner will pay in advance or by way of reimbursement and in such installments as he may determine the amounts due to a local educational agency pursuant to the provisions of the Act. f 113.14 Prohibition on payment for re

ligious worship or instruction. Nothing contained in the Act or in this part shall be construed to authorize the use of any payment made thereunder to pay for religious worship or instruction. 88 113.15–113.17 [Reserved]

Subpart D-Retention of Records $ 113.18 Fiscal control and audit.

(a) Each applicant local educational agency shall provide for such fiscal control and fund accounting procedures as may be necessary to assure the proper disbursement and accounting for funds paid to that local educational agency under section 7 of the Act.

(b) All expenditures by a local educational agency of funds paid to it under section 7 of the Act shall be audited under audit standards appropriate for that purpose with due regard to Federal auditing requirements. Federal auditors or reviewers, or both, shall be given access to reports of such audits and to such other documents as may be necessary to verify the results of such audits. $ 113.19 Retention of records.

Local educational agencies receiving Federal assistance under the Act are required to keep intact all records supporting claims for such Federal funds until either the completion of the fiscal a'idit or the regularly conducted Federal administrative review and notification that the case is closed, or for 3 years following the fiscal year to which the claim relates, whichever is later. The records involved in any claims or expenditures which have been questioned must be maintained until necessary adjustments have been made and the adjustments have been reviewed and cleared by the Federal agency making such reviews. The Commissioner will not require that records be maintained beyond this period unless, under special circumstances, the local educational agency is specifically advised that certain record materials should be retained.

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88 113.20–113.24 [Reserved] Subpart E-Preceding Provisions Not

Exhaustive $ 113.25 Preceding provisions not ex

haustive of jurisdiction of the Com

missioner. No provisions of the regulations in this part now or hereafter promulgated shall be deemed exhaustive of the jurisdiction of the Commissioner under the Act.


Subpart A-Filing and Processing of Complete

Applications Sec. 114.1 Definitions. 114.2 Procedure if funds are inadequate to

make all payments. 114.3 Determination of priority indices for

applications. 114.4 Determination of available and usable

school facilities. 114.5 Criteria for waiver under section

5(e) of the Act. 114.6 Criteria for waiver under section

5(e) of the Act for children resid

ing on Federal property. 114.7 Criteria for waiver under subsection

14(a) of the Act. 114.8 Determination of undue financial

burden, 114.9 Membership of nonresident pupils. 114.10 School facilities for children whose

membership is of temporary dura

tion only. 114.11 Certification of payments. 114.12 Additional payments under section

8 of the Act. 114.13 Priority and approval of applications;

conditioned upon readiness to pro

ceed with construction. 114.14 Works of art. 114.15 School facilities accessible to, and

usable by, the handicapped. 114.16 Excellence of architecture and de

sign of minimu school facilities. 114.17 Flood plains. 114.18 Preceding provisions not exhaustive

of jurisdiction of the Commis

Subpart B-Establishment of Cutoff Dates for

Filing Applications
114.20 Establishment of cutoff dates.

Subpart (Retention of Records Sec. 114.30 Retention of records.

AUTHORITY: The provisions of this part 114 issued under secs. 3-6, 8-9, 13-15, 72 Stat. 548; 20 U.S.C. 631; sec. 12, 72 Stat. 554; 20 U.S.C. 641-643.

SOURCE: The provisions of this Part 114 appear at 32 F.R. 5549, Apr. 5, 1967, unless otherwise noted. Subpart A-Filing and Processing of

Complete Applications § 114.1 Definitions.

All terms used in this part which are defined in the Act and not defined in this section shall have the meaning given to them in the Act. As used in this part, for purposes of this part and determinations under the Act as hereinafter defined, the following terms shall have the meaning indicated in paragraphs (a) to (u) of this section:

(a) The “Act" means Public Law 815, 81st Congress (64 Stat. 967), as amended.

(b) “Commissioner" means the Commissioner of Education, Department of Health, Education, and Welfare.

(c) “Local educational agency' means a board of education or other legally constituted local school authority (including, where applicable, a State agency which directly operates and maintains facilities for providing free public education) having exclusive administrative control and direction of free public education, or some phase thereof, in a county, township, independent, or other school district located within a State. If the local educational agency so defined does not have responsibility for providing school facilities and such responsibility is vested in a State agency, the term shall include such State agency together with the agency having exclusive administrative control and direction of other phases of free public education.

(d) "Free public education" means education which is provided at public expense, under public supervision and direction, and without tuition charge and which is provided as elementary or secondary school education in the applicable State. Elementary education may include kindergarten education meeting the above criteria.

(e) An "applicant” is a local educational agency which has filed a complete application for assistance in school construction under the Act and this part.

(f) A "complete application" in the the laws and customs of the State govcase where an applicant submits only erning free public education. Where one project by a filing date, consists of kindergartens may be conducted on a both Part I (Maximum Grant) and Part two-sessions-per-day basis the number II (Project) of the application Form of pupil stations of the rooms used for RSF-2 prescribed by the Commissioner that purpose shall be doubled in deterfor use under this Act, properly com- mining kindergarten needs. pleted and executed, together with all (1) Children who are "unhoused" or documents, amendments, and communi- without "minimum school facilities" are cations in support thereof. Where ap- those children in excess of the normal plicant submits more than one project capacity of available and usable miniby a filing date, the Part I form and mum school facilities. all Part II forms, properly executed and (m) Unless governed by State law or completed, together with all documents, State regulation, a "member" of a class amendments, and communications in is a child who presents himself at school support thereof on file at that time, shall and is placed on the current roll. Such be considered as the "complete applica- a child shall be considered a “member" tion." Where more than one Part II ap- from the date of enrollment until he lication is submitted by an applicant, the permanently leaves the class or school applicant shall indicate the order in for one of the causes recognized as suffiwhich its project applications are to be cient by the State. The date of permaconsidered by the Commissioner. Only nent withdrawal should be the date on applications meeting the conditions for which it is officially known that the pupil approval under the Act shall be consid- has left school, and not necessarily the ered complete applications.

first day after the date of last attendance. (g) "Project application" means Form (n) “Average daily membership" for RSF-2, Part II, properly completed and a given school in a given school year is executed, making application for Fed- the aggregate days of membership of eral assistance for constructing or pro

individual children in the school divided viding school facilities under the Act. by the number of days school was actu(h) "Filed” means that all necessary

ally in session. Only days on which parts of the complete application, bear

pupils were under the guidance and diing the required certifications and verifi- rection of teachers in the teaching proccations by the State educational agency,

ess may be considered as days in session. are received by the Commissioner, or The average daily membership for groups enclosed in a cover addressed to the of schools having varying lengths of Commissioner and postmarked, on or be

terms is the sum of the average daily fore the applicable filing date.

memberships obtained for the individual (i) "Minimum school facilities” means

schools. those instructional and auxiliary rooms

(0) "Membership children of and initial equipment necessary to oper

temporary duration only" means the

school membership of children whose ate a program of free public education for the school members of the applicant

residence in the school area the Comat normal capacity in accordance with

missioner determines probably will be the laws and customs of the State. They

for less than six years beyond the date do not include athletic stadiums, or

of the approval of the complete applicastructures, or facilities intended pri

tions and whose number is required to marily for athletic exhibitions, contests,

be excluded from computation of maxior games or other events for which ad- mum payments under section 5 of the

Act. mission is to be charged to the general public.

(p) The “priority indices” are the

indices established pursuant to this part (j) "Available and usable school fa

based on relative urgency of need for the cilities" means those facilities containing

purpose of determining, under the Act, pupil stations counted in ascertaining

the order of approval of applications, children who are “unhoused" or without

and the order of payments. "minimum school facilities."

(q) The “substantial percentage” re(k) The “normal capacity" of a school

quirement under section 14(a) (1) of the room is the number of pupil stations

Act is satisfied if the total number of which the room accommodates under children who reside on Federal property ordinary conditions in accordance with (for whom the applicant is providing or,


upon completion of the school facilities to construction projects must be filed, for which provision is made in section except that the last such date with re14(a), will provide free public education, spect to applications for payments on and whose membership in the schools of account of children referred to in parasuch applicant has not formed and will graph (2) or (3) of section 5(a) shall not form the basis for payments under be not later than June 30, 1967. Section other provisions of the Act) is in excess 3 of the Act provides in part as follows: of 15 and represents at least 10 percent

The Commissioner shall by regulation preof the total number of children for whom

scribe an order of priority, based on relative the applicant is providing free public urgency of need, to be followed in approving education, unless the percentage require applications in the event the funds approment is waived by the Commissioner priated under this Act and remaining availunder the provisions of section 14(a).

able on any such date for payment to local (r) The term “base year” means the

educational agencies are less than the Fed

eral share of the cost of the projects with third or fourth school year preceding the

respect to which applications have been filed fiscal year in which an application was

prior to such date (and for which funds filed under the Act, as may be designated under this Act have not already been obliin the application, except that in the case gated). Only applications meeting the con. of an application based on children re ditions for approval under this Act (other ferred to in paragraphs (2) or (3) of than section 6(b) (2) (c)) shall be considsection 5(a), the base year shall in no

ered applications for purposes of the preevent be later than the regular school

ceding sentence. year 1962–63.

(b) With respect to applications made (s) The term “increase period" under section 14 of the Act, section 14(c) means the period of four consecutive provides in part as follows: regular school years immediately follow

In determining the order in which such ing such base year.

applications shall be approved, the Commis(t) For the purpose of eligibility and sioner shall consider the relative educational entitlement under section 5(a) (3) of the and financial needs of the local educational Act, the estimated number of children in agencies which have submitted approvable average daily membership during the applications and the nature and extent of

the Federal responsibility. base year shall be 97 percent of the difference between (1) the total number of § 114.3 Determination of priority inchildren in membership whose parents dices for applications. are employed (as determined by a par

When the Commissioner has set a date ent-pupil survey made as of any specific

by which complete applications must be date during the increase period) in es

filed, the priority indices for approval of tablishments with respect to which a

such applications shall be determined as responsible official thereof certifies that

follows: there has been an increase in employ

(a) A priority index will be determent subsequent to the base year in

mined for the first construction project order to fulfill Federal contracts or sub

for each applicant under section 6 or contracts, and (2) the number of such

section 14 of the Act by adding (1) the children whose parents moved into the

percentage that the estimated number applicant school district subsequent to

of federally connected children countable such a base year.

for payment in the school district (or in (u) "Works of art” means those items,

the approved attendance area except which may be in the nature of fixtures,

under section 14) is of the total estithat are incorporated in school facilities

mated membership of all children in primarily because of their esthetic value.

such an area at the close of the appliThe cost of a work of art that is in the

cable 4-year increase period to (2) the nature of a fixture shall be the estimated

percentage of the estimated school memadditional cost of incorporating those

bership within the school district (or special esthetic features which exceed in the approved attendance area except the general requirement of excellence of under section 14) which at the same time architecture and design.

is without minimum school facilities. § 114.2 Procedure if funds are inade

However, in no case shall the amount quate to make all payments.

used in determining the priority index

exceed twice the percentage in subpara(a) The Commissioner will from time

graph (1) of this paragraph. No prito time set dates by which applications ority, except under section 14, shall be for payments under the Act with respect established for any applicant having less

than 20 unhoused children in the school under the Act on or before which the district (or in the approved attendance application was first filed, shall not be area).

counted as available. The date on which (b) In those cases where an applicant the Commissioner set the cutoff date has filed more than one project applica- shall be the date on which the notice tion, the priority index for the second setting such date was filed with the Office project will be determined by: (1) Divid- of the Federal Register. ing the normal capacity of the first (c) All school facilities projects which, project by the total estimated member- as of the date of approval of the appliship at the close of the 4-year increase cation, have been approved for the appliperiod and (2) reducing the applicart's cant school district under the Act. priority index by twice the percentage so (d) With resect to section 14 of the obtained. Where more than two project Act, all minimum school facilities which applications have been filed, the appli- with full utilization of practically availcant's priority index for each succeeding able financial resources could be proproject shall be reduced by the cumula- vided from local, State, or other Federal tive total capacity, as provided in the sources shall be considered as available first sentence of this paragraph, of a.! and usable in making determinations. the approved projects of the applicant. The capacity of school facilities which $ 114.4 Determination of available and

could be so provided shall be determined usable school facilities.

by dividing the sum of such resources by

the cost per pupil of providing minimum The following school facilities shall be school facilities in the applicant's school counted as usable and available in deter

district. mining “unhoused children" or "children without school facilities”:

$ 114.5 Criteria for waiver under section (a) All school facilities which were

5(e) of the Act. constructed for school use and which (a) The Commissioner's authority in have been used continuously for class- section 5(e) of the Act to waive or reduce room purposes, unless such facilities the percentage requirement or requirehave become unsafe or otherwise unus. ments in section 5(c), to waive the reable to the extent that use of such quirement contained in the first sentence facilities or partial use of such facilities of subsection 5(d) thereof, or to reduce has been abandoned or must be aban- the percentage specified in clause (2) of doned, for section 14 of the Act, by such sentence will not be exercised unlcss the end of the increase period for the conditions set forth in subparawhich the application is filed under graphs (1) through (5), inclusive, of section 5 of the Act, and for section 5, this paragraph, or in subparagraph (6) by the end of the second year fol- of this paragraph, are met: lowing the increase period for which (1) The applicant meets all conditions the application is filed. Basement rooms, of eligibility under the Act other than hallways, or other space the use of which section 14 thereof or, on the basis of the for classroom purposes, in view of their authorized waiver or reduction of one character, inaccessibility, or other equally or more of the requirements, would meet cogent reason, seriously prejudices edu- such conditions. cational objectives or has impaired or (2) The applicant specifically states will impair the health or safety of the the extent to which it desires the Comschoolchildren, will not be considered to missioner to exercise his authority to be available and usable. These criteria waive or reduce one or more of such reshall apply to all facilities owned by other

quirements and makes appropriate reFederal agencies which are available or which may be made available for the

quests therefor, agreeing that if such a education of children counted by appli

request is granted in whole or in part in cants.

computing maximum payment under the (b) All school facilities which are "un

Act, only membership of children within der contract as of the date on which the the federally impacted attendance area Commissioner set, under section 3, the shall be considered. earliest date on or before which the ap- (3) The applicant has two or more atplication for such project is filed." Thus, tendance centers, and its jurisdictional facilities for which contracts are entered area is countywide or is sufficiently exinto after the date on which the Com- tensive as to be reasonably analogous to missioner set the earliest cutoff date a countywide school system.

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