RULES AND REGULATIONS
Title 22--EDUCATION
DEPARTMENT OF EDUCATION
[22 PA. CODE CH. 142]
Grants for Public Library Construction
[26 Pa.B. 5951] The Department of Education (Department), Commonwealth Libraries, State Library of Pennsylvania (Commonwealth Libraries) is responsible for promulgating regulations relating to public library facilities grant programs authorized by the Keystone Recreation, Park and Conservation Fund Act (act) (32 P. S. §§ 2011--2024). The Department is publishing Chapter 142 (relating to grants for public library facilities) in final form. The statutory authority for this chapter appears in the act and in The Library Code (24 P. S. §§ 4101--4503), as follows: section 8(a) of the act (32 P. S. § 2018(a)), states ''Each agency shall promulgate rules and regulations that are necessary to carry out the purposes of this act consistent with the criteria set forth in this act,'' and section 201(15) of The Library Code (24 P. S. § 4201(15)), gives the State Librarian the power and duty ''Generally, to promulgate rules and regulations for the purpose of carrying out the powers and duties relating to libraries as are imposed by law. . . .''
These regulations provide rules of a public library facilities grant program to pay costs of planning, acquisition, rehabilitation or development (that is, new construction, improvement, alteration or renovation required for and compatible with the physical development or improvement of land or buildings for library purposes). The Department will make grants to municipalities to benefit their public libraries.
Purpose of the Regulations
These final-form regulations are connected with Keystone Recreation, Park and Conservation Fund (Fund) grant programs and, specifically, will govern the program of grants for the planning, acquisition, development and rehabilitation of public library facilities. The Fund is being developed from the proceeds of $50 million Commonwealth bond issue and the dedication of 15% of the revenue from the State Realty Transfer Tax. A portion of this Fund is being allocated to the Department to use for the planning, acquisition, development and rehabilitation of public library facilities. Two million five hundred thousand dollars from the bond revenues and 4% of the dedicated portion of the State Realty Transfer Tax are being allocated to the Department to provide grants to municipalities to pay up to 50% of eligible project costs.
Over a 3-year period beginning October 1994, the Commonwealth has been issuing bonds. The proceeds of the bond issue are being added to the Fund and made available to the Department of Education for purposes of the act. An amount of the State Realty Transfer Tax has been and will continue to be transferred to the Fund at the end of each month beginning July 31, 1994. Moneys transferred to the Fund from State Realty Transfer Tax revenues were made available to the Department during the fiscal year beginning July 1, 1995.
The final-form regulations set up rules for a competitive grant program. The Department and the Commonwealth Libraries will administer the grant program according to the final-form regulations and will provide grants from the Fund to municipalities for public library projects as authorized by section 8(d) of the act. Municipalities will be eligible to apply for grants to benefit their public libraries.
Explanation of Regulatory Requirements/Comment and Response Summary
The final-form regulations provide specific rules for a grant program for planning, acquisition, development and rehabilitation of public library facilities. During the public comment period, the Department received two letters, one recommending a rewording of three sections, the other not recommending change. The regulations were also reviewed by the Senate and House Education Committees and the Independent Regulatory Review Commission (IRRC). The House Education Committee and IRRC both made suggestions for revisions to the regulations. Because there were many comments, this preamble will review the comments and the Department's responses section by section.
Section 142.1 (relating to definitions) defines words and terms. The proposed regulations listed words and terms defined in the act and stated they would retain those definitions. IRRC recommended definitions be provided for all terms listed. The Department responded by adding definitions for the following terms: ''acquisition,'' ''administrative expenses,'' ''agency,'' ''development,'' ''fund,'' ''land,'' ''planning,'' ''rehabilitation'' and ''technical assistance.'' At IRRC's suggestion, the Department revised the act's definitions for ''acquisition,'' ''agency,'' ''development,'' ''planning'' and ''rehabilitation'' to apply only to the public library facilities program. In addition, at IRRC's recommendation the Department added two new definitions, for ''indirect costs'' and ''minor civil division.''
The proposed regulations defined ''sponsoring municipality'' in a way that differed from the definition of ''municipality'' in the act. Because the word ''sponsoring'' does not appear in The Library Code or regulations, IRRC recommended it be deleted and the word ''municipality'' be defined as it is in the act. The Department agreed and made this change. In addition, wherever the term ''sponsoring municipality'' was used throughout the proposal it was changed to ''municipality.''
The act defines ''library'' but not ''public library.'' However, the term ''public library'' is used in section 8(d) of the act: ''The Department of Education shall provide grants from bond revenues and realty transfer tax revenues to municipalities and appropriate organizations to pay up to 50% of the eligible project cost for planning, acquisition, development and rehabilitation of public libraries.'' The Department wanted, in regulation, to provide a definition of public library that would be consistent with policy followed for other Federal and State library programs administered by the Commonwealth Libraries. Section 142.1 defined a ''public library'' as ''a library or library system receiving State aid under Article III of The Library Code (24 P. S. §§ 4301--4304).'' Providing grants for State-aided public library facilities helps to ensure the Commonwealth Libraries allocates the limited funds available to projects with the most potential for long term success.
IRRC questioned this approach and asked the statutory basis for this more restrictive definition. The statutory basis is found in section 201(15) of The Library Code (24 P. S. § 4201(15)), which gives the State Librarian the power and duty ''Generally, to promulgate rules and regulations for the purpose of carrying out the powers and duties relating to libraries as are imposed by law. . . .'' IRRC staff agreed that, as the custodial agency responsible for administering the grant funds, the Commonwealth Libraries could set restrictions consistent with prudent use of State funds. However, IRRC maintained the legally correct place for the restrictions would be the section dealing with eligible grantees rather than in the definitions section. The Department, therefore, has modified the definition to remove reference to libraries receiving State aid. A new eligibility requirement has been added to § 142.6 (relating to eligible matching funds) as described in this Preamble.
IRRC questioned the definition of the term ''sponsoring school district'' and recommended its deletion because the Legislature did not intend school districts to benefit from the Fund. The Department agrees the Fund is not to be used for school libraries and has deleted the definition. However, there are a few public libraries in this Commonwealth that receive most of their operating funds from the school district. These libraries meet the definition of ''library'' in the act, meet all standards for receipt of public library State aid and meet the definition of ''public library'' in the final form regulations. Section 142.4 (relating to eligible grantees) was revised to ensure these libraries are eligible to benefit from Fund grants.
The regulations state the Commonwealth Libraries will develop a long-range plan to ensure the grant program is equitable and meets the needs of all regions of this Commonwealth (See, § 142.2). The proposal stated this plan would include a Statewide needs assessment, an action plan to meet identified needs, policies, funding priorities, criteria for grant awards and procedures for administration. The plan was also to include provision of technical assistance by the agency, monitoring of ongoing projects and evaluation of completed projects.
IRRC questioned some proposed components of the plan, specifically priorities, criteria for grant awards and procedures for administration. IRRC cited a Commonwealth Court decision in DER v. Rushton Mining, 591 A.2d 1168 (1991), in which the Court defined the differences between statements of policy and regulations by adopting the ''binding norm test.'' IRRC stated that if funding would be contingent on priorities, criteria for grant awards or grant administration procedures, then they would be binding norms more properly in regulation rather than in a long-range plan. The Department did not mean for these terms to describe binding norms. All eligibility requirements applicants must meet to receive grants are in the act or the final-form regulations. The words were intended to refer to instances when the Commonwealth Libraries must apply judgement, as in evaluating competing grant applications when only a small percentage can be funded. Since the legal meaning of these terms--priorities, criteria, procedures--seems at odds with the Department's intended use of them, the terms were deleted from the final-form regulations. This change should remove any misconception the long-range plan is in any way intended to constitute a regulation or administrative law.
IRRC also recommended the initial plan and subsequent updates be published in the Pennsylvania Bulletin. The Department has taken this suggestion and added publication of the plan in § 142.2(d). The Department agrees this will be a cost-effective method to disseminate the plan. IRRC suggested further that a public comment period be held, after which the plan be published in final form. The Department prefers to take a different, and potentially more effective approach. The planning process will be very participatory. The regulations specify consultation with the Advisory Council on Library Development (a representative group of library professionals and laypersons appointed by the Governor), with municipal officials, and with library representatives. The Commonwealth Libraries has found using such a process ensures public participation and comment more effectively than requesting public comment in the Pennsylvania Bulletin. As evidence of this, one might consider the result of publication as a proposed rulemaking of these regulations, which deal with eligibility, matching funds and other issues important to those needing grants. Despite the Commonwealth Libraries' attempt to widely publicize the proposed rulemaking by mailing it to every public library and municipality in the State, these regulations generated only two letters from the public, one suggesting no change and one suggesting small changes. Commonwealth Libraries held a public hearing as announced in the Pennsylvania Bulletin, but no one came to testify.
The regulations specify eligible project costs. See § 142.3 (relating to eligible project costs). In the proposed regulations, this section included definitions for ''planning,'' ''acquisition,'' ''development'' and ''rehabilitation.'' The definitions were deleted from this section in the final-form regulations because they now appear in the definition section.
Section 142.4 defines eligible grantees. The proposal included a statement that eligibility would be contingent upon inclusion of the library's development in a county plan for library service. IRRC recommended that, unless The Library Code is amended to include a requirement for county plans for library service, this part of the section be deleted. The Department agreed and deleted the subsection. Using exact language suggested by IRRC staff, the Department revised § 142.4(a) to be more consistent with the wording of the act. Similarly, the Department added § 142.4(c) and revised the wording of proposed § 142.4(c), now numbered § 142.4(d), using word-for-word the suggestions of IRRC staff. Finally, at IRRC's staff's suggestion, § 142.4(e) was added. This new subsection allows school district sponsored public libraries--not school libraries--to benefit from grants.
Finally a new subsection was added to require the public library benefitting from the grant to receive State aid under Article III of The Library Code. If a municipality receives a grant to build a new facility or renovate/rehabilitate an existing building for a new library that previously did not exist, this subsection requires that library to be eligible for and to apply for State aid the year it opens to the public. For the following reasons, the Department believes this eligibility restriction is necessary for the responsible and prudent administration of State grant funds:
(1) Providing grants for only State-aided public libraries is a policy followed consistently in all other Commonwealth Libraries grant programs.
(2) Allowing grants to benefit only State-aided libraries is a prudent use of scarce State funds. State-aided libraries are more likely to be viable organizations with reliable sources of operating funds. These regulations introduce some modicum of quality control because State-aided libraries must meet standards in Chapter 131 (relating to general provisions; State aid).
(3) The definition of ''library'' in the act establishes no minimum level of funding, staffing, materials or resources. Under this definition, an all volunteer library with a few old books, open 1 or 2 hours per week can call itself a public library. Many people do not realize that there are many non-State-aided public libraries fitting this description in this Commonwealth. In some parts of this Commonwealth, these tremendously inadequate libraries have proliferated. Often these organizations are not incorporated. While the motives of the people who open these libraries are noble, the results are pale imitations of true, adequate public library service. Providing State funds to these uncertain operations would not be responsible.
(4) Public library service is a voluntary (not mandated) local initiative in this Commonwealth. It has not been the experience in this Commonwealth that if a library building is constructed, new operating funds will automatically flow from the community. In fact, local support of public libraries is a problem, with Pennsylvania ranking 41st in its support of libraries as compared with all other states (National Center for Education Statistics, 1993). The Commonwealth Libraries wants to ensure grants made from the Fund will build and rehabilitate facilities that continue to be operated as public libraries.
(5) This Commonwealth has more than 600 State-aided public library outlets (counting branch libraries). While few areas need more libraries, it is a goal of the Commonwealth Libraries to develop stronger public libraries and improved library facilities. Limiting grant awards to State-aided outlets moves the Commonwealth in the direction of this goal.
Proposed § 142.5 (relating to funding guidelines) elicited comments from a member of the public, Representative William R. Lloyd, Jr. and IRRC. The Commonwealth Libraries anticipates demand for grants will be greater than available funds, and expects it will make grants for less than 50% of the costs of many projects. More affluent communities are better able to provide a larger share of project costs. Therefore, the proposed section stated the Commonwealth Libraries would give priority to economically distressed communities in awarding grants to pay a full 50% of project costs, the maximum share allowed by the act. The section listed criteria to determine economically distressed communities. These criteria were intended to measure the health of the local economy using authoritative and timely data for three economic indicators: market value, personal income and unemployment rate. The intent was for grant applicants to be considered in relation to the entire State and the other applicants in determining the relative economic health of their communities.
Representative Lloyd commented that the factors in § 142.5(d) would be equally valid in ranking applications from communities that are not economically distressed. He suggested the Department consider setting forth priorities to be used in ranking applications. IRRC agreed with his assessment, and recommended a ratio or percentage range be used to replace the terms ''low'' (as in low market value) and ''high'' (as in high unemployment). The Department concurred and revised the proposal accordingly. The final-form regulations include percentile measurements to define economic distress.
The measurement for unemployment includes the term ''minor civil division'' because the Department of Labor and Industry provides unemployment statistics for certain size minor civil divisions. IRRC was concerned about the undefined use of this term. Although the term is used by the United States Census and has a specific meaning in this Commonwealth, the Department could not find a legal definition to reference. Therefore, the final-form regulations add a definition of the term to the definitions section.
IRRC additionally suggested the word ''ensure'' in § 142.5(b) and (c) be replaced by ''demonstrate.'' The Department adopted this change and agrees it makes stronger the requirement for an applicant to prove matching funds are available.
The final-form regulations describe eligible matching funds. See § 142.6 (relating to eligible matching funds). The proposal allowed certain specified costs incurred up to 2 years prior to the grant award to be used as matching funds. See § 142.6(d)(5). This Department recognizes that the applicant must incur a number of costs, such as the services of a building consultant, architect or engineer, prior to submission of a grant application as part of the process of developing that application. The proposal also allowed other costs, such as acquisition and site preparation, if incurred up to 2 years prior to the grant award. Because of State bidding and contracting requirements, prevailing wage law and other State requirements for construction projects, neither the proposal nor the final-form regulations allow actual construction work done before the award of the grant to be used for matching funds.
The 2-year limit drew comment from Representative Lloyd, who stated the up-front costs could be significant for a small library. Given the competition for grants, an applicant might need to apply several different times before receiving a grant. He suggested the Department allow the recovery of costs under § 142.6(d)(4) and (5) if they were incurred within 2 years of filing of the initial application. IRRC agreed with Representative Lloyd, but suggested the Department might consider a ceiling on the maximum number of years for which the provisions of § 142.6(d)(4) and (5) might be valid. The Department revised the final-form language to accord with Representative Lloyd's suggested wording. It considered putting in a ceiling, but decided one would not be necessary. It has been the experience of the Commonwealth Libraries that after the agency turns a grant application down once or twice, the applicant either drops the project if it was not essential or finds local funds to complete it without a grant. Often, public library rehabilitation or construction projects are motivated by necessity that does not allow time to wait for the next grant application opportunity. A leaking roof demands immediate attention.
Considering the financial constraints faced by many Commonwealth municipalities and public libraries, the Commonwealth Libraries has taken an expensive approach to encourage and reward local effort and initiative. Therefore, matching funds may include third party contributions and costs, rules for which are found in § 142.7 (relating to third-party in-kind contributions and third-party costs). The final-form regulations also provide methods for valuation of donated services, § 142.8 (relating to valuation of donated services) and donated equipment, buildings and land, § 142.9 (relating to valuation of donated equipment, buildings and land). The Department intends these provisions to provide particular benefit for small communities in meeting matching fund requirements.
IRRC commented on use of the term ''indirect costs'' in § 142.7. It questioned how the Department defined the term and requested clarification in the final-form rulemaking. The Department provided this clarification by defining the term in the definitions section.
IRRC commented on § 142.8(a) which allows the municipality to value volunteer services provided by individuals at rates consistent with those ordinarily paid for similar work in the municipality or public library. IRRC questioned how values for services would be applied consistently and suggested the Department provide additional standards and clarity for what constitutes ''volunteer service.'' The Department examined the proposal and decided sufficient clarity about what constitutes volunteer service already existed in the definition of ''third-party in-kind contributions'': ''Property or services that benefit a grant-supported project and that are contributed without charge to the grant recipient by a third party other than a municipality, a school district, or a public library.'' It is true the value of services may be different in different labor markets, but the Department does not see this as a problem. For example, if an engineer or carpenter donates his services, the rates charged may vary in different areas of this Commonwealth, but this would also be true if they did not donate their services.
IRRC also suggested the Department add a requirement that volunteer service counted toward satisfying matching requirements must be directly related to the project. The Department notes that § 142.7(a) already states ''The municipality may use third party in-kind contributions and third party costs to count towards satisfying the matching requirement only when those contributions and costs are directly related to the public library planning, acquisition, development or rehabilitation project. The municipality may not use third party in-kind contributions and third party costs for operation of the public library to count towards satisfying the matching requirement.'' The addition of a phrase such as ''including volunteer services'' would be redundant.
IRRC commented on § 142.8(a) which allows the municipality to include a reasonable amount for fringe benefits and asked what the Department will consider reasonable. The Department considers reasonable an allowance for fringe benefits similar to the benefits paid to actual employes. In some cases, the valuation is for services not ordinarily performed by municipal or library employes, therefore the Department prefers not to make an inflexible rule about exactly how the grantee must calculate fringe benefits.
IRRC also requested a justification for the inconsistency in allowance for fringe benefits in the valuation of donated services between § 142.8(a) and (b). Section 142.8(a) allows the municipality to include a reasonable amount for fringe benefits when calculating the value of service donated by individual volunteeers working directly for the library or municipiality on the project. Section 142.8(b) does not allow fringe benefits to be used in calculating the value of service donated by an employer furnishing one of its employes free of charge. The Department has two reasons that justify different rules for the two circumstances. First, these subsections are similar to the regulations governing the Federal library construction grant funds. The Department anticipates some municipalities will receive combination grants using Federal dollars to pay a partial match for the State dollars. It will be easier for these grantees to comply in valuation of donated services if they can follow one consistent set of rules. Second, monitoring the reasonableness of fringe benefits paid by the municipality or the library is easier for the Department than verifying these figures for private companies that are not recipients of the grant contract or under any obligation to the granting agency.
There were no comments about § 142.9.
Section 142.10 (relating to title to site) addresses the issue of title to site. The proposal attempted to ensure, once a project is completed, that the new or rehabilitated structure would remain in use as a public library for 50 years or the useful life of the facility, whichever is shorter. Representative Lloyd, the House Education Committee and IRRC all commented on the need to change this section. Some grants will be made for fixtures or nonroutine maintenance--projects that may have a useful life of less than 50 years. The Department concurred and revised the wording of this section to reflect the comments. The final-form regulations use the exact language recommended by Representative Lloyd and the House Education Committee.
IRRC had a further recommendation concerning § 142.10. It was noted section 10 of the act (24 P. S. § 2010) prohibits grant recipients from disposing of property acquired under the act for other than the purpose approved in the grant application without prior written approval from the agency head. The section also requires a refund with interest if the disposition or conversion of property occurs without agency permission. The Department complied with this recommendation by adding subsection (d), which states the action the Department may take when property is disposed of without prior approval of the Department. The wording for this subsection is based on the language in the act.
The proposed regulations provided rules for beginning, completing and supervising projects. See §§ 142.11--142.13 (relating to beginning the grant project; completing the grant project; and supervision and inspection by the municipality). These sections were intended to safeguard the interests of the Commonwealth by helping to ensure projects would begin soon after the grant award, be completed without undue delay and be adequately supervised.
Section 142.11(a) states the municipality shall begin work on a grant project within a reasonable time after the grant award. IRRC questioned how the Department would determine ''reasonable'' and requested clarification of the term. The Department found it difficult to clarify the term to apply to all projects. Grantees often delay construction projects for reasonable causes. For example, a recent Federal grant made by the Commonwealth Libraries to the Free Library of Philadelphia was delayed when it was discovered the architect's plans to excavate the basement could not be used because the space under the existing building was solid granite. The grantee requested a completely understandable and reasonable delay while the city retained the services of a different architect and revised the plans. Other times projects have been delayed due to discovery of asbestos or lead paint, both of which require abatement procedures. Another project was delayed when the contractor found unexpected and unmapped sewer lines in the area to be excavated for the library addition. Usually judging whether a delay is reasonable or not depends on the individual project. Since all grants are made through State contracts, and since these contracts include beginning and ending dates, the Department decided to deal with the issue of timely project starts through the contractual process. Section 142.11(a) was deleted from the final-form regulations.
There were no comments on § 142.12.
IRRC commented on § 142.13 and suggested the Department consider requiring that supervision and inspection be conducted by an engineer certified by the State Architects Licensure Board (49 Pa. Code Chapter 9). However, it was later discovered this Board does not certify engineers. The Department revised the regulation to indicate certification by the appropriate board. While the Department agreed that requiring this level of inspection would be prudent for many projects, it would not be cost effective for very small nonroutine maintenance projects. For example, it would probably not be necessary to have this sort of inspection for installation of floor tiles or fluorescent lighting fixtures. The Department did not want the regulation to be burdensome to small communities with small projects. In the final-form regulations, therefore the Department added language requiring inspection by an engineer or architect when the supervision is determined to be necessary by the Commonwealth Libraries.
Section 142.14 (relating to operation and maintenance of facility) is intended to ensure the applicant will be able to operate and mainitain the new or improved facility. It is not in the interest of the Commonwealth to provide funds to improve library facilities which must then close or severely reduce hours open to the public because of insufficient operating funds. IRRC suggested clarifying the requirement by strengthening the language to read that the grantee must certify assurance on a form provided by the Department. The Department agreed and made the change in the final-form regulations.
IRRC also suggested the Department consider consolidating § 142.14 with § 142.5. Section 142.5 deals with funding guidelines for grant projects and not with operational funding of public libraries. It is important to distinguish between project funding, which consists of the grant and local matching funds, and operational funding, which may not be counted as project costs. The Commonwealth Libraries wants to make sure the rules for funding of grant projects are treated completely separately from any rules dealing with operational funding of a library once the project is complete. Therefore, the Department decided to keep § 142.14 separate and distinct.
Entities Affected
Municipalities, as defined in section 13 of the act (32 P. S. § 2013), which sponsor public libraries, will be affected by these regulations because they will be eligible to apply for grants. Public libraries will be affected because they will be the beneficiaries of the grants for their facilities. Local libraries, as defined in section 102 of the Library Code (24 P. S. § 4102) and library systems, as defined in § 141.24(b)(1) (relating to Library systems) are considered public libraries affected by the final-form regulations.
Cost and Paperwork Requirements
Commonwealth
The Department, Commonwealth Libraries, Library Development will incur costs of administering a grant program. Costs include professional staff to conduct needs assessments, develop a coordinated Statewide plan, provide technical advice to applicants, review project applications including architectural drawings, monitor funded projects and evaluate results. Estimated costs for administering the program will be approximately $80,000 per year for the first 3 years and $60,000 per year thereafter, once the Statewide needs assessment and plan have been completed. The estimated cost for each year is 5% of the total amount available for the public library facilities grant program, as permitted by section 8 of the act.
Municipalities
Municipalities that are awarded grants to improve their public library facilities will save costs because this program will pay up to 50% of the costs of these projects. This will amount to approximately $1.5 million in benefits for the first 3 years of the program, and approximately $1.1 million thereafter.
The paperwork required will be similar to reports currently required for other Commonwealth Libraries grant programs. Quarterly narrative and financial reports are typically two or three pages long and not burdensome to complete. The final report includes a one page financial section and a narrative describing project accomplishments, problems and evaluation. No separate financial audit will be required.
Private Sector
These regulations do not directly involve the private sector. It is not expected these regulations will impose any additional costs on the architects, building consultants and general construction contractors who may work on projects for municipal grantees.
Effective Date
These regulations will be effective as soon as they are published in final form.
Sunset Date
No sunset date has been established because the act has established an ongoing program. The Commonwealth Libraries will continue to administer the public library facilities grant program in accordance with these regulations unless changes to the program or public library needs, or both, necessitate revisions.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking published at 24 Pa.B. 6149 (December 10, 1994), to IRRC and to the Chairpersons of the House and Senate Committees on Education for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House Education Committee and the Senate Education Committee on October 31, 1996. IRRC met on November 7, 1996 and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
Findings
The Department, Commonwealth Libraries, finds that:
(1) Public notice of the intention to adopt these regulations was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) The regulations are necessary and appropriate for the administration of the authorizing statute.
Order
The Department of Education, Commonwealth Libraries, orders that:
(a) The regulations of the Department, 22 Pa. Code, are amended by adding §§ 142.1--142.14 to read as set forth in Annex A.
(b) The Secretary of Education shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Secretary of Education shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
EUGENE W. HICKOK,
SecretaryFiscal Note: Fiscal Note 6-251 remains valid for the final adoption of the subject regulations.
(Editor's Note: For the text of the order of IRRC relating to this document, see 26 Pa. B. 5766 (November 23, 1996).)
Annex A
TITLE 22. EDUCATION
PART IX. STATE LIBRARY AND ADVISORY COUNCIL ON LIBRARY DEVELOPMENT
Subpart B. ADVISORY COUNCIL ON LIBRARY DEVELOPMENT
CHAPTER 142. GRANTS FOR PUBLIC LIBRARY FACILITIES Sec.
142.1. Definitions. 142.2. Long-range plan. 142.3. Eligible project costs. 142.4. Eligible grantees. 142.5. Funding guidelines. 142.6. Eligible matching funds. 142.7. Third party in-kind contributions and third party costs. 142.8. Valuation of donated services. 142.9. Valuation of donated equipment, buildings and land. 142.10. Title to site. 142.11. Beginning the grant project. 142.12. Completing the grant project. 142.13. Supervision and inspection by the municipality. 142.14. Operation and maintenance of facility. § 142.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise:
Acquisition--The purchase or lease with an option to purchase of land or buildings for public library uses.
Act--The Keystone Recreation, Park and Conservation Fund Act (32 P. S. §§ 2011--2024).
Administrative expenses--An expenditure of funds, including expenditures of Commonwealth agencies for personnel and other operating costs necessary to accomplish the purposes of the act.
Agency--The Department of Education.
Commonwealth Libraries--The State Library of Pennsylvania, part of the Department of Education.
Development--New construction, improvement, alteration or renovation required for and compatible with the physical development, improvement of land or buildings for public library purposes.
Fund--The Keystone Recreation, Park and Conservation Fund established by the act.
Indirect costs--Costs including administration or utilities that are not readily identifiable as particular, eligible costs directly related to the project.
Land--Real property, including improvements thereon, right-of-ways, water, riparian and other rights, easements, privileges and any other physical property or rights of interest of any kind or description relating to or connected with real property.
Library--A free, public, nonsectarian library, whether established and maintained by a municipality or by a private association, corporation or group, which serves the informational, educational and recreational needs of the residents of the area for which its governing body is responsible by providing free access, including free lending and reference services, to an organized and currently useful collection of printed items and other materials and to the services of a staff trained to recognize and provide for these needs.
Minor civil division--A city, borough, incorporated town, township, home rule municipality or other local government within a county for which the Department of Labor and Industry provides unemployment statistics.
Municipality--A county, city, borough, incorporated town, township, home rule municipality or an official agency created by the foregoing units of government under the laws of the Commonwealth. Actions of an authority or other official agency taken under the act shall be first approved by the participating local governing bodies in that authority or other official agency.
Planning--Master site development plans, feasibility studies, maintenance, management plans, and other plans and documents, including long-range plans for the allocation of grants, useful to municipalities and State agencies in the planning, development, operation, protection and management of their public library facilities and programs. Planning may be performed by State agency staff or by outside consultants.
Public library--A library, as defined in section 3 of the act (32 P. S. § 2013), or library system, as defined in § 141.24(b)(1) (relating to library systems).
Rehabilitation--The improvement or restoration, excluding routine maintenance of existing public library facilities.
Routine maintenance--Recurring upkeep needed on a regular basis for physical facilities, including cleaning, minor repair of fixtures or structures, painting, regular servicing of heating, air conditioning or other equipment and landscape maintenance such as lawn care or pruning.
Technical assistance--The provision of grant and professional service to municipalities, organizations and citizens, including publications, video tapes, workshops, meetings, phone consultation and written and electronic communication.
Third-party in-kind contributions--Property or services that benefit a grant-supported project and that are contributed without charge to the grant recipient by a third party other than a municipality, a school district or a public library.
Third-party costs--Direct expenditures for property or services that benefit a grant-supported project and that are contributed without charge to the grant recipient by a third party other than a municipality, a school district or a public library.
§ 142.2. Long-range plan.
(a) Commonwealth Libraries, in consultation with the Advisory Council on Library Development, will prepare a 3 to 5 year long-range plan for the allocation of grants available to municipalities for public library planning, acquisition, development or rehabilitation from the Fund. In preparing the long-range plan, Commonwealth Libraries will consult with municipal officials and library representatives. The long-range plan will be reviewed each year by Commonwealth Libraries and modified as need dictates. The long-range plan will include the following components:
(1) A library facility needs assessment, including an analysis of the need in different geographical regions of this Commonwealth and of libraries serving various size municipalities, and a consideration of county library system plans.
(2) An action plan to meet the need for improved library facilities through the use of the Fund and other available moneys.
(3) Commonwealth Libraries' policies concerning the grants for public library facilities.
(4) A plan for Commonwealth Libraries' administration of the program, including provision of technical assistance, monitoring of ongoing projects and evaluation of completed projects.
(b) Grants to municipalities for public library planning, acquisition, development or rehabilitation will be made in accordance with the long-range plan.
(c) Commonwealth Libraries will incur administrative expenses to meet costs of activities listed in the component of the long-range plan described in subsection (a)(4), to meet costs of planning, and to meet other costs of grants administration.
(d) Commonwealth Libraries will publish the long-range plan and subsequent modifications to the long-range plan in the Pennsylvania Bulletin.
§ 142.3. Eligible project costs.
(a) Commonwealth Libraries, in accordance with the policies in its long-range plan for library facilities, may provide grants to pay for the following eligible project costs:
(1) Planning.
(2) Acquisition.
(3) Development.
(4) Rehabilitation.
(b) Grants may not be used for the following ineligible costs:
(1) Operating costs of a public library, including costs of purchasing books and other library materials, personnel costs and costs of routine maintenance.
(2) Costs of equipment or software, or both, to automate public library functions and catalogs unless the automation is part of the development or rehabilitation of a public library facility.
(3) Planning, acquisition, development or rehabilitation of facilities that are not public libraries. In the case of shared facilities, the grant and related matching funds may pay only for that portion of the facility to be used as a public library.
§ 142.4. Eligible grantees.
(a) A municipality that intends to plan, acquire, develop or rehabilitate a public library is eligible to apply for a grant.
(b) The public library for which a municipality applies for a grant shall have a formal, legal relationship with that municipality, either by being a department or unit of local government or through a contract describing mutual obligations and responsibilities.
(c) A municipality, alone or in cooperation with other municipalities, is eligible to apply for a grant for a public library funded by local tax revenue or monies raised by the levy of special taxes to establish or maintain, or both, a public library which directly provides public library service, delegates responsibility for public library service to a board of directors, or delegates responsibility for public library service to a nonprofit corporation.
(d) If a public library serves more than one municipality, the municipalities shall come to mutual agreement and designate one to apply for a grant for that library.
(e) When a public libary is sponsored by a school district or any entity other than a municipality, the municipality where the public library is located may apply for a grant for that public library.
(f) The public library that benefits from the grant shall be receiving State aid under Article III of the Library Code (24 P. S. §§ 4301--4304) at the time of the grant application and shall continue to receive State aid for the term of the grant. If the public library did not exist prior to the grant-funded project to acquire, plan, develop or rehabilitate its facility, that newly formed public library is eligible for and may apply to receive State aid under Article III of the Library Code when it opens to the public.
§ 142.5. Funding guidelines.
(a) Commonwealth Libraries will award grants from the Fund to municipalities to pay up to 50% of eligible public library project costs.
(b) The municipality shall demonstrate that sufficient matching funds from eligible sources are available to meet at least 50% of project costs.
(c) The municipality shall demonstrate that the grant award plus other available funds are sufficient to complete the proposed project.
(d) Commonwealth Libraries will give priority to economically distressed communities in awarding grants meeting 50% of costs and may award grants meeting a smaller percentage of project costs to municipalities whose local economies better enable local support of the project. For purposes of this grant program, in deciding whether a community is considered economically distressed, Commonwealth Libraries will be guided by one or more of the following criteria:
(1) The public library to benefit from the grant received equalization aid in the year of the grant application or will be eligible to receive equalization aid in the year following the grant application under section 303(b)(6) of the Library Code (24 P. S. § 4303(b)(6)).
(2) The municipality is a city, borough, incorporated town or township having a market value per capita below the twentieth percentile of all like cities, boroughs, incorporated town and townships, as certified annually by the State Tax Equalization Board.
(3) The municipality is a county or is located in a county having a personal income per capita below the twentieth percentile of all counties, as certified annually by the Department of Revenue.
(4) The municipality is a county or is located in a county or is a minor civil division with a population of 25,000 or higher having an average annual unemployment rate above the eightieth percentile of all counties or all minor civil divisions, as determined annually by the Department of Labor and Industry.
§ 142.6. Eligible matching funds.
(a) Commonwealth Libraries may award Federal library construction funds, when available, to pay additional portions of project costs and meet matching requirements of grants awarded from the Fund. Priority for these Federal grants will be given to municipalities in economically distressed communities, using criteria in § 142.5(d) (relating to funding guidelines).
(b) The municipality may use Federal funds, other than those awarded under subsection (a), which are available to it or to the public library, as matching funds, if the Federal funds are not already being used to match another State grant.
(c) The municipality may use State funds, other than those awarded from the Fund, and which are available to it or to the public library, as matching funds, if the funds were not appropriated as compensation to public libraries under the Library Access Statewide Card Program or as library State-aid under terms of Article III of the Library Code (24 P. S. §§ 4301--4304).
(d) The municipality may use the following local monies, costs and contributions as matching funds:
(1) Local tax revenues.
(2) Proceeds from local bond issues.
(3) Cash contributions from individuals, corporations and others.
(4) The fair market value of land or buildings provided to the public library by the municipality up to 2 years previous to award of the grant. The market value shall be for the time at which the land or buildings were designated for the public library.
(5) Costs incurred by the municipality or the public library up to 2 years prior to filing of the initial application for the following:
(i) Services of a library building consultant, registered architect, engineering firm used in the development of plans for the project.
(ii) Acquisition of real estate as part of the project.
(iii) Physical site preparation.
(6) Third party in-kind contributions and third party costs which conform to the rules in §§ 142.7--142.9 (relating to third party in-kind contributions and third party costs; valuation of donated services; and valuation of donated equipment, buildings and land).
§ 142.7. Third party in-kind contributions and third party costs.
(a) The municipality may use third party in-kind contributions and third party costs towards satisfying the matching requirement only when those contributions and costs are directly related to the public library planning, acquisition, development or rehabilitation project. The municipality may not use third party in-kind contributions and third party costs for operation of the public library to count towards satisfying the matching requirement.
(b) If third party in-kind contributions and third party costs are used as matching funds, the municipality shall be able to verify those contributions and costs from its records or the records of the public library. The municipality shall show from the records how the value placed on third-party in-kind contributions was calculated. To the extent feasible, the municipality shall verify the value of volunteer services by using the same methods that the municipality or the public library uses to support the allocation of its regular personnel costs.
(c) The municipality may use third-party in-kind contributions towards satisfying the matching requirement only when, if the municipality or public library receiving the contributions were to pay for them, the payments would be eligible matching funds.
(d) The municipality may not use third-party in-kind contributions towards satisfying the matching requirement if they represent indirect costs.
§ 142.8. Valuation of donated services.
(a) The municipality shall value volunteer services provided by individuals to the municipality or public library at rates consistent with those ordinarily paid for similar work in the municipality or public library. If the municipality or public library does not have employes performing similar work, the municipality shall use rates consistent with those ordinarily paid by other employers for similar work in the same labor market. In either case, the municipality may include a reasonable amount for fringe benefits in the valuation.
(b) When an employer other than the municipality or public library furnishes free of charge the services of an employee in the employe's normal line of work, the municipality shall value the services at the employe's rate of pay exclusive of fringe benefits and the employer's overhead costs. If the services are in a different line of work, subsection (a) applies.
§ 142.9. Valuation of donated equipment, buildings and land.
(a) The municipality may count as matching funds the market value of donated equipment, buildings or land at the time of donation.
(b) If it is necessary to establish the market value of land or a building, Commonwealth Libraries may require that the market value be established by a certified real property appraiser and that the value be certified by the municipality and by the public library.
§ 142.10. Title to site.
(a) The municipality or public library shall have or obtain a full title or other interest in the site upon which the public library facility is or will be located, including right of access, that is sufficient to insure the undisturbed use and possession of the facility as a public library for 50 years or the useful life of the project to be funded by the grant, whichever is shorter.
(b) If the title to the site upon which the public library facility is or will be located is held by the municipality, the municipal officials shall pass a resolution or ordiniance ensuring the undisturbed use of the facility as a public library for 50 years or the useful life of the project to be funded by the grant, whichever is shorter.
(c) If during the 50-year period, the municipality or public library desires that the facility be used for other than public library purposes, it may request a waiver from the State Librarian. In deciding whether to grant that waiver, the State Librarian will consider the public library's need for a facility and how that need will be met.
(d) Recipients of grants for public library facilities under the act may not dispose of nor at any time convert property acquired with the grant to other than the purposes approved in the project application without the prior written approval of the Commissioner of Libraries, the State Librarian. If disposition or conversion occurs without prior written approval, the State Librarian may require:
(1) The recipient to refund all grant funds for the particular project, including 10% annual interest compounded four times annually from the date the original grant-in-aid was received until it is repaid.
(2) Acquisition by the recipient of equivalent replacement land, as determined by the State Librarian.
§ 142.11. Beginning the grant project.
Before grant project work is advertised or placed on the market for bidding, the municipality shall get approval from Commonwealth Libraries of final working drawings and specifications.
§ 142.12. Completing the grant project.
(a) The sponsoring municipality shall complete its grant project within a reasonable time.
(b) The municipality shall complete the grant project in accordance with the grant application and approved drawings and specifications.
§ 142.13. Supervision and inspection by the municipality.
In the case of grants for development or rehabilitation, the municipality shall retain a licensed architect or professional engineer for supervising or inspecting at the project site to insure the work conforms to the approved drawings and specifications when the supervision is determined to be necessary by Commonwealth Libraries.
§ 142.14. Operation and maintenance of facility.
An authorized representative of the grantee shall sign a form provided by the Agency to assure that, when the project is completed, sufficient funds will be available for effective operation and maintenance of the public library.
[Pa.B. Doc. No. 96-2089. Filed for public inspection December 13, 1996, 9:00 a.m.]
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