tion by the State educational agency of those allegations. It is recognized that the responsibility with respect to the resolution of such matters rests, in the first instance, in the State educational agency. (h) Each application by a State educational agency shall contain an assurance that it will keep such records, and afford the Commissioner such access thereto, as he may find necessary to assure the correctness of the reports required to be made and the adequacy of the fiscal control over and the accounting for Title I funds paid to the States. § 116.32 Certificate of State attorney general. The application for participation by a State in the grant program under Title I of the Act, and each application for a grant to establish or improve programs of education for migratory children of migratory agricultural workers, shall include a certificate by the State attorney general or other appropriate State legal officer to the effect that the agency submitting the application has the authority under State law to perform the duties and functions of a State educational agency under Title I of the Act and the regulations in this part, including those arising from the assurances given in the application § 116.33 Allocation to local educational agencies. (a) In those instances in which the determination of the Commissioner with respect to the maximum amount of grants relates only to county aggregate maximum grants, the State educational agency shall allocate such county aggregate maximum grants among the local educational agencies within the counties on the basis of such criteria as the State educational agency may apply in accordance with 116.4 and § 116.6. (b) The State educational agency shall promptly advise the Commissioner of its allocations of county aggregate maximum grants among the several local educational agencies in each county and the criteria on which such allocations were based. (c) The State educational agency shall advise the Commissioner of the amounts needed to fund those applications by local educational agencies for grants which are approved by the State educational agency, together with appropriate Information concerning each of the projects covered by such applications, and 90-004-7619 of the additional amount not in excess of (1) one percent of the maximum grants to State and local educational agencies of the State as adjusted pursuant to § 116.9 or (2) $150,000 (or $25,000 in the case of Puerto Rico, Wake Island, Guam, American Samoa, the Virgin Islands, or the Trust Territory of the Pacific Islands), whichever is greater, which is required by the State educational agency for administration and for technical assistance to local educational agencies with respect to the measurement of educational achievement and evaluation of programs called for by § 116.22. [32 FR. 2742, Feb. 9, 1967, as amended at 83 FR. 17790, Nov. 28, 1968] § 116.34 Approval of applications from local educational agencies. (a) The State educational agency shall review all applications by local educational agencies (including State agencies directly responsible for providing free public education for handicapped children or for children in institutions for neglected or delinquent children) in the State for grants under Title I of the Act to determine whether such applications meet the requirements of the Act and the regulations in subpart C of this part. The State educational agency shall not approve such an application unless it determines that the application does effectively meet the requirements of the Act and the regulations in subpart C of this part and that the State educational agency is able to give the Commissioner the assurances with respect to that application which are required by the regulations in this subpart. The State educational agency shall not approve an application by a local educational agency which, together with other approved applications by that agency, exceeds the amount available for grants to that agency. (b) The State educational agency may approve an application in part or for less funds than is called for by the application only if such an approval does not have the effect of altering the project to such an extent that it no longer provides reasonable promise of substantial progress toward meeting the special educational needs of educationally deprived children. (c) The State educational agency shall not finally disapprove any application in whole or in part without first affording the local educational agency submitting the application reasonable notice and opportunity for a hearing with respect to such action. (d) The terms and provisions of each approved project shall be made available, by the State educational agency, and by the affected local educational agency or agencies, for public inspection. §§ 116.35-116.40 [Reserved] Subpart E-Payments § 116.41 Payments to States. (a) The maximum amount of all payments which may be made to a State for grants under Title I of the Act is the aggregate of the maximum eligibilities of all State and local educational agencies of the State for grants and the maximum eligibility of the State educational agency for administration and technical assistance with respect to the measurement of educational achievement and evaluation of projects, as that aggregate is adjusted pursuant to § 116.9. (b) The Commissioner will, during the fiscal year, pay to each State an amount which is equal to the aggregate amount for which projects of State and local educational agencies are approved by the State educational agency or by the Commissioner, plus such amount as the State educational agency is entitled to and expends for such administration and technical assistance. The Commissioner may make advances to each State submitting an application for participation in the program under Title I of the Act and requesting such an advance. (c) Until such time as the Commissioner has finally determined the maximum eligibilities for grants of all State and local educational agencies in all the States, he will make a tentative ratable reduction in the amounts payable to States and will further limit such amounts in order for him to be in a position to make such final ratable reductions as may be necessitated by the amount of the available appropriations. (d) Each local educational agency receiving a distribution of grants for approved programs and projects shall, at the end of the period for which expenditures of such grants are authorized, release to the State educational agency any unexpended balances of such grants. The State educational agency shall report to the Commissioner the amount of such unexpended balances as well as the unexpended balances of grants to the State educational agency for such ad ministration and technical assistance, and all such unexpended balances shall be taken into account by the Commissioner in making payments to the State thereafter. § 116.43 Distributions to State or local educational agencies. (a) Subject to the provisions of § 116.45, the State educational agency in each State participating in the program under Title I of the Act shall distribute to eligible State and local educational agencies the sums made available to the State educational agency by the Commissioner for the programs or projects of such State and local educational agencies approved by the State educational agency or the Commissioner during the fiscal year for which the Federal appropriations are made available. (b) Federal funds so made available to a State educational agency shall be drawn down by the State educational agency or transferred to local educational agencies in installments substantially coinciding with the need for such funds based upon the estimated rates of expenditure by such State or local educational agencies. § 116.44 Limitation on payments to a State. No payments by the Commissioner under Title I of the Act will be made to a State for any fiscal year in which the State has taken such payments into consideration in determining the eligibility of a local educational agency for State aid, or in determining the amount of that aid, with respect to the free public education of children in such a way as to penalize the local educational agency in relation to the availability of State or local funds. § 116.45 Limitations on payments to a local educational agency. (a) No payments to a State under Title I of the Act for any fiscal year may be paid by the State educational agency to a local educational agency unless the State educational agency finds that the combined fiscal effort of that local educational agency and the State with respect to the provision of free public education by that local educational agency for the preceding fiscal year was not less than such a combined fiscal effort for that purpose for the second preceding fiscal year. (b) For purposes of this section, fiscal effort by a local educational agency shall al ate cal of te be measured by the amount of the cur- Subpart E-General Provisions The Commissioner will approve each application by a State, through its State educational agency, to participate in the grant program under Title I of the Act if he determines that the application meets the requirements of section 106(a) in Title I of the Act and the regulations in Subpart D of this part. He will not finally disapprove any State application, or any application by a State educational agency for migratory children of migratory agricultural workers, except after reasonable notice and opportunity for a hearing to the State educational agency with respect to the disapproval of that application. [33 F.R. 17790, Nov. 28, 1968] § 116.52 Withholding by the Commissioner. (a) Whenever the Commissioner, after reasonable notice and opportunity for a hearing to any State educational agency, finds that there has been a failure to comply substantially with any assurance set forth in the application of that State, or in the application of that State educational agency, approved by the Commissioner, for a grant to establish or improve programs of education for migratory children of migratory agricultural workers, he will notify the agency that further payments will not be made to the State under Title I of the Act (or, in his discretion, that the State educational agency will not make further payments under Title I of the Act to specified local educational agencies affected by the failure) until he is satisfied that there is no longer any such failure to comply. Until the Commissioner is so satisfied, further payments under Title I of the Act will not be made to that State or payments by the State educational agency will be limited to payments to local educational agencies not affected by the failure, as the case may be. (b) Prior to initiating a hearing under this section, the Commissioner will attempt to resolve any apparent differences between him and the State educational agency regarding the interpretation or application of the provisions of Title I of the Act and the regulations in this part, including any apparent differences with respect to the disposition of matters reported by the State educational agency pursuant to § 116.31(g). Nothing herein shall be deemed to prevent any State educational agency from. seeking the advice of the Commissioner prior to disposing of such matters. § 116.53 Allowable expenditures. (a)-(c) [Reserved] (d) The expenditure of funds under (20 U.S.C. 885) [32 F.R. 2742, Feb. 9, 1967, 116a.13 Grants to local educational agencies in the outlying areas and payments to the Secretary of the Interior. Subpart C-Program Requirements 116a.19 Project applications. 116a.20 Selection of Title I attendance areas. 116a.21 Needs assessment. 116a.22 Project description, size, scope, and quality. 116a.23 Participation by children enrolled in private schools. 116a.23-1 Waiver of requirements for participation by children enrolled in private schools. 116a.24 Bonus pay for teachers. 116a.25 Parent advisory councils. 116a.26 Comparability of services. AUTHORITY: Section 2, Pub. L. 89-10, 79 Stat. 27, as amended, (20 U.S.C. 241a-241m, 242, 244), unless otherwise noted. SOURCE: 41 FR 42914, Sept. 28, 1976, unless otherwise noted. EFFECTIVE DATE NOTE: Part 116a is effective November 13, 1976. Subpart A-General § 116a.1 Applicability. (a) The regulations in this part and the general regulations in Part 116 of this chapter govern programs and projects for which funds are provided to local educational agencies under Title I of the Elementary and Secondary Education Act to meet the special educational needs of educationally deprived children in school attendance areas with high concentrations of children from low-income families and for children in local institutions for neglected or delinquent children. (b) Assistance provided under this part is subject to applicable provisions contained in the General Provisions for Education program regulations subchapter A of this chapter (relating to fiscal, administrative, property management and other matters) including Parts 100, 100b (and related appendices) and 100c. (c) The text of the Title I statute is contained in full in the Appendix to Part 116 of this chapter. (20 U.S.C. 241e (a) (1)) "Educationally deprived children" means (1) children who have need for special educational assistance in order that their level of educational attainment may be raised to that appropriate for children of their age, and (2) children who are handicapped. (20 U.S.C. 241e(a)(1) (A)) "Institution for delinquent children" means a public or private residential facility which is operated primarily for the care of children who have been adjudicated to be delinquent or in need of supervision. The term also includes an adult correctional institution in which children reside. (20 U.S.C. 241c(c)(2) (B), (C)) "Institution for neglected children" means a public or private residential facility (other than a foster home) which is operated primarily for the care of at least ten children who have been committed to the institution, or voluntarily placed in the institution pursuant to applicable State law, because of the abandonment of or neglect by, or death of, parents or persons acting in the place of parents. (20 U.S.C. 241c(c) (2) (B), (C)) "Project area" means an attendance area, or combination of attendance areas, having a high concentration of children from low-income families which, without regard to the locality of the project itself, is designated as an area from which children are to be selected to participate in a project. (20 U.S.C. 241e(a) (1)) Subpart B-Eligibility for and Amount of Grants § 116a.3 Eligibility of local educational agencies. (a) A local educational agency in a State (other than Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands) is eligible for a grant under Title I for a fiscal year if the Commissioner determines, on the basis of satisfactory data available to him, that the number of children counted under section 103 (c) of Title I for the school district of such agency for such year amounts to at least 10. (b) If the Commissioner does not have available satisfactory data on a school district basis, a local educational agency is eligible for such a grant if the school district served by such agency is located in whole or in part in a county in which the Commissioner determines that there are 10 or more of such children. (20 U.S.C. 241 (c) (b)) § 116a.4 Determination of grant which a local educational agency in a State is eligible to receive. The grant which a local educational agency in a State (other than Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands) is eligible to receive under Subpart 1 of Part A of Title I for a fiscal year will be determined by the Commissioner in accordance with the provisions of sections 103(a) (2)-(4) and 103 (c) of Title I, subject to the provisions of section 144 of such Title. (20 U.S.C. 241c(a) (2), (3), (4), 241c(c)) § 116a.5 Allocation of county aggregate grants by State educational agencies. (a) General. Pursuant to Section 103 of Title I, the Commissioner is authorized to determine the grant which a local educational agency is eligible to receive, if satisfactory data are available from the Department of Commerce for such agencies. However, if such data are not available, these determinations are made for counties, and the State educational agencies allocate the county amounts among the local educational agencies in the counties. This section prescribes criteria for the allocation by a State educational agency of the aggregate amount determined for a county (under section 103 (a) (2) of Title I) among the local educational agencies whose school districts are located in whole or in part in such county. Such aggregate amount is hereinafter referred to as the county aggregate grant. (b) Children in institutions. To the extent that a county aggregate grant is based on the number of children aged 5 to 17, inclusive, living in institutions for neglected or delinquent children, the county aggregate grant shall be allocated on the basis of the location of such institutions in the various school districts of the local educational agencies concerned. For the purpose of this part, the number of such children shall be the number in the October caseload who have resided in the institution for at least 30 days. If a State educational agency determines that a local educational agency is unable or unwilling to provide for the special educational needs of such children, that portion of the grant of that local educational agency which is based on such children shall be assigned to the State educational agency if it assumes that responsibility. If the State educational agency does not assume that responsibility, it shall designate another State or local public agency that is able and willing to assume that responsibility. If no such public agency is found by the State educational agency, the amount attributable to such children shall be deducted from the local educational agency's allocation and shall not be available for reallocation. (c) Allocation of remainder of county grant. Subject to applicable provisions of law (including the provisions of section 144 of Title I), the remainder of the county aggregate grant shall be allocated by the State educational agency among the several local educational agencies whose school districts lie (in whole or in part) within the county on the basis of the current distribution in the county of children aged 5 to 17, inclusive, from low-income families (using a poverty level selected by the State educational agency consistent with the purposes of Title I) as determined on the basis of the available data which such State educa |