SOURCE: 41 FR 37576, Sept. 7, 1976, unless otherwise noted.

§ 117.1

Subpart A-General

Definitions.

As used in this part:

"Act" means the Elementary and Secondary Education Act of 1965, Public Law 89-10, as amended (20 U.S.C. 821-827).

"Children" means those persons who are in attendance in schools of the State which provide elementary and secondary education and which comply with State compulsory attendance laws or are otherwise recognized by some procedure customarily used in the State. The age limits are the permissible ages for attendance at the public elementary and secondary schools of the State, but the term "children" does not include persons enrolled in adult education courses or in courses beyond grade 12.

"Local educational agency" means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or such combination of school districts or counties as is recognized in a State as an administrative agency for its public elementary or secondary schools. It also includes any other public institution or agency having administrative control and direction of a public elementary or secondary school.

"Private elementary and secondary schools" means nonprofit or profit schools which provide elementary and secondary education as determined under State law, but not to the extent that they provide education beyond grade 12, and which are controlled by other than a public authority or public officials but which either comply with the State compulsory attendance laws or are otherwise recognized by some procedure customarily used in the State.

"School library resources, textbooks, and other printed and published instructional materials" means: (a) "School library resources" are books,

periodicals, documents, pamphlets, photographs, reproductions, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, including but not limited to those on discs and tapes; processed slides, transparencies, films, filmstrips, kinescopes, and video tapes, or any other printed and published materials of a similar nature made by any method now developed or hereafter to be developed, and which are processed and organized for use by elementary and secondary school children and teachers; (b) "textbooks" are books, reusable workbooks, or manuals, whether bound or in looseleaf form, intended for use as a principal source of study material for a given class or group of students, a copy of which is expected to be available for the individual use of each student in such class or group; (c) "other printed and published instructional materials" are books, periodicals, documents, pamphlets, photographs, reproductions, pictorial or graphic works, musical scores, maps, charts, globes, sound recordings, including but not limited to those on discs and tapes; processed slides, transparencies, films, filmstrips, kinescopes, and video tapes, or any other printed and published materials of a similar nature made by any method now developed or hereafter to be developed, and which are not processed and organized for use by elementary or secondary school children and teachers. Such "school library resources, textbooks, and other printed and published instructional materials" include those materials which are suitable for and are to be used by children and teachers in elementary or secondary schools and which with reasonable care and use may be expected to last more than one year. The definition does not include furniture or equipment.

"Standards" means those measures (established by the State agency or the Department of the Interior or the Department of Defense for administration of title II of the Act or established by other authoritative groups or individuals and accepted for such administration) which are used for making determinations of the adequacy, quality, and quantity of school li

brary resources, textbooks, and other printed and published instructional materials to be made available for the use of children and teachers in elementary and secondary schools.

"State" means, in addition to the several States in the Union, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands.

"State educational agency" or "State agency" means the State board of education or other agency or officer primarily responsible for the State supervision of public elementary and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.

"Teacher" means a person who is engaged in carrying out the instructional program of an elementary or secondary school, including a principal, guidance counselor, school librarian, or other member of the instructional or supervisory staff.

(20 U.S.C. 821-827)

§ 117.2 General provisions regulations.

Assistance under this part is subject to applicable provisions contained in Subchapter A of this chapter (relating to fiscal, administrative, property management, and other matters). (20 U.S.C. 821)

Subpart B-Annual Program or Department Plan-General Provisions

§ 117.5 Annual program plan or Department conditions.

(a) Purpose. A basic condition for the grant of Federal funds to a State or for the payment of funds under title II of the Act to the Department of Interior or Defense is a plan which meets the requirements of title II of the Act in providing a program under which funds so granted or paid will be expended solely for the acquisition of school library resources, textbooks, and other printed and published instructional materials and the administration of the plan.

(b) Effect of an annual program plan. The annual program plan, when approved by the Commissioner, shall

constitute the basis on which Federal grants will be made to a State and the basis for determining the propriety of the expenditures of those funds.

(c) Effect of a Department plan. A plan submitted by the Department of the Interior or by the Department of Defense, when approved by the Commissioner, shall constitute the basis on which payments will be made to those Departments under title II of the Act and the basis for determining the propriety of the expenditures of these funds by such Departments.

(d) Program and operational procedures. The administration of the program shall be kept in conformity with the approved plan, the regulations in this part, and title II of the Act. A description of the program and operational procedures shall be recorded and made available to the public upon request. Whenever there is any material change in the content or administration of the program, or when there has been any material change in pertinent State law or in the organization, policies, or operations of the State agency affecting the program under the plan, the procedures shall be appropriately amended.

(e) Submission. A plan shall be submitted to the Commissioner by a duly authorized officer of the State agency, or by the Departments of the Interior or Defense. The plan shall give the official name of the agency which will administer the plan and shall indicate the official or officials authorized to submit plan material. The plan shall designate the officer or officers who will receive and provide for the custody of all funds to be expended, and authorize expenditures of such funds.

(f) Certificate of the State Attorney General or other appropriate State legal officer. The annual program plan shall also include as an attachment a certification by the appropriate State legal officer that the State agency named in the plan is the agency having authority, either directly or through arrangements with other State or local public agencies, to administer the plan; and that the State has authority under State law to carry out the plan.

(g) Approval by the Commissioner. The Commissioner will approve each

plan which he determines meets the applicable requirements of title II of the Act and regulations in this part, and will notify the applicant of the granting, conditioning, or withholding of approval in each such case. However, no final action with respect thereto, other than one of approval, will be taken by the Commissioner unless he first notifies the applicant of his proposed action and in connection therewith affords the applicant a reasonable opportunity for a hearing on whether the affected plan meets such requirements.

(h) Ineligibility to participate. Whenever the Commissioner, after reasonable notice and opportunity for a hearing, finds: (1) That the plan fails to comply with the requirements of title II of the Act and the regulations in this part; or (2) That in the administration of the plan there is a failure to comply substantially with any such provision, the Commissioner will notify the applicant that said applicant will not be regarded as eligible to participate in the program under title II of the Act until the Commissioner is satisfied that there is no longer any such failure to comply. (20 U.S.C. 823)

§ 117.6 Annual program plan assurances. Each annual program plan shall contain assurances:

(a) Sole agency for administration. That the State agency shall, either directly or through arrangements with other State or local public agencies, act as the sole agency for the administration of the plan.

(20 U.S.C. 823(a)(1))

(b) Description of program. That the State agency has developed in writing a program under which funds paid to the State from its allotment under title II of the Act will be expended solely (1) for the acquisition of school library resources, textbooks, and other printed and published instructional materials for the use of children and teachers in public and private elementary and secondary schools in the State and (2) not in excess of 5 percent of the amount paid to the State under title II of the Act or $50,000, whichever is greater, for administration of

the annual program plan, including (i) the development and revision of standards relating to school library resources, textbooks, and other printed and published instructional materials furnished for the use of children and teachers in the public elementary and secondary schools of the State, and (ii) the distribution and control by a local educational agency of such school library resources, textbooks, and other printed and published instructional materials in carrying out the plan for the use of children and teachers in public and private elementary and secondary schools in the State.

(20 U.S.C. 823(a)(2))

(c) Criteria for allocation of school library resources, textbooks, and other printed and published instructional materials. That the State agency has developed the criteria used in determining the need and the proportions of the allocation to be used for school library resources, textbooks, and other printed and published instructional materials provided under title II of the Act among the children and teachers in the elementary and secondary schools, which criteria shall incorporate the provisions of paragraphs (d) and (e) of this section.

(20 U.S.C. 823(a)(3))

(d) Relative need. That the criteria shall, on the basis of a comparative analysis and the application of standards, as defined in § 117.1, establish the relative need, as determined from time to time, of children and teachers for school library resources, textbooks, and other printed and published instructional materials to be provided under the plan. Such criteria shall include priorities for the provision of such materials on the basis of several factors such as the requirements of elementary and secondary instruction, quality and quantity of such materials now available, requirements of children and teachers in special or exemplary instructional programs, the cultural or linguistic needs of children or teachers, the degree of economic need, and the degree of previous and current financial efforts for providing such materials in relation to financial ability. The distribution of such resources,

textbooks, and materials for children and teachers solely on a per capita basis does not satisfy this provision. (20 U.S.C. 823(a)(3)(A))

(e) Equitable basis. That the criteria established under an annual program plan shall provide for the allocation of school library resources, textbooks, and other printed and published instructional materials in such a way as to provide assurance that, to the extent consistent with State law, such resources, textbooks, and materials are provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State. However, said equitable provision shall not be effectuated by means of transfer of funds to private schools or purchase by them of such resources, textbooks, and materials.

(20 U.S.C. 823(a)(3)(B))

(f) Methods and terms of availability of materials. That the State agency has developed the methods and terms by which the school library resources, textbooks, and other printed and published instructional materials acquired under title II of the Act will be made available for the use of children and teachers in the elementary and secondary schools. With respect to children and teachers in private schools, the State agency shall provide that (1) such resources, textbooks, and materials are to be made available to children and teachers and not to institutions; (2) such resources, textbooks, and materials are to be made available on a loan basis only; (3) a public agency will retain title to, and control and administration of the use of, such resources, textbooks, and materials; and (4) books and materials must not supplant those being provided children but must supplement library resources, textbooks, and other instructional materials to assure that the legislation will furnish increased opportunities for learning. (See also §§ 117.8 and 117.9)

(20 U.S.C. 823)

(g) Coordination with public library programs. That the State agency has developed criteria to ensure that there will be appropriate coordination at both State and local levels between

the program carrier out under title II of the Act with respect to school library resources and any program carried out under the Library Services and Construction Act (20 U.S.C. ch. 16) in order to secure the effective and efficient use of Federal funds and to avoid duplication of effort.

(20 U.S.C. 823(a)(3)(C))

(h) Criteria for selection of school library resources, textbooks, and other instructional materials. That the State agency has developed the specific educational and other criteria to be used (1) in selecting the school library resources, textbooks, and other printed and published instructional materials to be made available to children and teachers under title II of the Act and (2) as the basis for determining the proportions of the allotment for each fiscal year which will be spent for the acquisition of (i) school library resources, (ii) textbooks, and (iii) other printed and published instructional materials. The ultimate responsibility for the selection under these criteria of all school library resources, textbooks, and other printed and published instructional materials for the use of children and teachers in public and private elementary and secondary schools in a State shall be that of the State agency or a local educational agency. If proportions for the three categories of materials are changed significantly, the program and operational procedures should be amended in accordance with the provisions of § 117.5(d). (See also § 117.8.) (20 U.S.C. 823)

SO

(i) Equal consideration for needs for materials for occupational education. That the State agency has developed the specific educational and other criteria to be used in allocating school library resources, textbooks, and other instructional materials so as to give consideration to the needs of children and teachers in elementary and secondary schools for such resources, textbooks, and materials utilized for instruction, orientation, or guidance and counseling in occupational education equal to the consideration given to the requirements of such children and teachers for materials to be used

to meet other educational, motivational, and recreational needs.

(20 U.S.C. 823(a)(3)(D))

Programs, criteria, methods and terms, policies and procedures required by § 117.6 (b), (c), (d), (e), (f), (h), and (i) must be set forth in the plan itself or be incorporated therein by reference as a separate existing and identified document available for inspection by the Commissioner.

(20 U.S.C. 823; 42 U.S.C. 4231, 4233)

Subpart C-Availability of Materials

§ 117.8 Approval of instructional materials.

School library resources, textbooks, and other printed and published instructional materials acquired under the provisions of title II of the Act must be limited to those which have been approved by an appropriate State agency or local educational agency or other public agency for use, or those which are used, in a public elementary or secondary school of that State. (20 U.S.C. 825)

§ 117.9 Title and control of instructional materials.

Title to, and control and administration of the use of, school library resources, textbooks, and other printed and published instructional materials acquired under title II of the Act shall vest only in a public agency or in the United States. School library resources, textbooks, and other printed and published instructional materials acquired under title II of the Act shall be made available to children and teachers in elementary and secondary schools on a loan basis only and there will be a proper accounting of such resources, textbooks, and materials. The public agency shall provide for the control, recall, and replacement of such resources, textbooks, and materials. The public agency having control shall impose responsibility upon the children and teachers who borrow such resources, textbooks, and materials for loss, damage, failure to return when required, or other violations of the terms and conditions of the loan which is comparable to that imposed