uled for hearing, under this part, shall not prejudice any request for reconsideration of any determination made by the Commissioner or his delegatee, but the pendency of any such request for reconsideration shall not constitute a basis upon which postponement of the hearing can be demanded as of right by the applicant or by the Commissioner.

§ 111.5 Time and place of hearing.

Hearings on any matter included in § 111.2 shall be held at the offices of the Office of Education in Washington, D.C., at a time fixed by the Commissioner, unless the Commissioner determines that the convenience of the applicant or of the Office of Education requires that another place be selected. § 111.6

Right to counsel.

In all proceedings under this part, the applicant and the Commissioner shall have the right to be represented by proper counsel.

§ 111.7 Procedures, evidence, and record.

(a) The hearing officer shall conduct the hearing and shall issue such rules of procedure as are proper (and not inconsistent with this part) relating to the conduct of the hearing, giving of notices subsequent to those provided for in § 111.5, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. The application in question and all relevant amendments and exhibits submitted therewith shall be made a part of the hearing record. Both the Office of Education and the applicant shall be entitled to introduce all relevent evidence on the issues as stated in the notice or request for hearing or as determined by the hearing officer at the outset of or during the hearing.

(b) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination or by other means shall be applied by the hearing officer where reasonably necessary. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side

of the issues. A transcript shall be made of the oral evidence unless dispensed with by stipulation. All decisions shall be based upon the hearing record and written findings shall be made.

§ 111.8

Decisions and notices.

If the hearing is held by a person other than the Commissioner, such person shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the Commissioner for a final decision, and written notice of such initial decision or certification shall be mailed to the applicant. Where the initial decision is made by the hearing officer, and in the absence of either an appeal to the Commissioner or review upon motion of the Commissioner within time limits stated in this section, such decision shall without further proceedings constitute the final decision of the Commissioner. The applicant may within thirty days of the mailing of such notice of initial decision request the Commissioner to review it. The Commissioner may grant or deny such request or may within forty-five days after the initial decision review it on his own motion. Written notice of the Commissioner's action granting or denying a request for review or of his determination to review it on his own motion shall be mailed promptly to the applicant.

§ 111.9 Decisions on record or review by Commissioner.

Whenever a record is certified to the Commissioner for decision or the Commissioner determines to review the decision of another person pursuant to § 111.8, or whatever the Commissioner conducts the hearing, the applicant shall be given reasonable opportunity to file with the Commissioner briefs or other written statements of its contentions, and the final decision of the Commissioner in such cases promptly shall be given in writing to the applicant. § 111.10

Other determinations not affected by this part.

Nothing in this part shall be construed to bar the Commissioner reconsidering any determination under Public Laws 815 and 874 unless such determination has been the subject of a hearing under this part.

112.9 General procedure if funds are inadequate to make all requested payments.

112.10 Determination of priorities among applications.

112.11 Prohibition against payment for religious worship or instruction.

112.12-112.15 [Reserved]

Subpart D-Retention of Records

112.16 Retention of records. 112.17-112.20 [Reserved]

Subpart E-Provisions not Exhaustive 112.21 Provisions not exhaustive of jurisdiction of Commissioner.

AUTHORITY: The provisions of this Part 112 issued under sec. 12, 72 Stat. 554, sec. 16, 79 Stat. 1158; 20 U.S.C. 642, 646.

SOURCE: The provisions of this Part 112 appear at 31 F.R. 4403, Mar. 15, 1966, unless otherwise noted.

As used in this part

(a) "Act" means Public Law 815, 81st Congress, section 16 of which was added by the first section of Public Law 89-313 (79 Stat. 1158).

(b) "Commissioner” means the United States Commissioner of Education.

(c) "Applicant" means a local educational agency which has filed a project application for assistance under section 16 of the Act.

(d) "Completed application" means a properly executed project application on forms prescribed by the Commissioner for use in requesting school construction assistance under section 16 of the Act, together with all documents, amendments, supplements, and communications called for in support thereof.

133 F.R. 12650, Sept. 6, 1968.

(e) "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.

(f) "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 in a county, township, independent, or other school district located within a State and including any other public agency which operates schools providing technical, vocational, or other special education to children of elementary or secondary school age. If the local education agency so defined does not have responsibility for providing school facilities and that responsibility is vested in a State, county, city, or town agency, the term shall include such an agency, together with the agency having exclusive administrative control and direction of other phases of free public education.

(g) "Major disaster area” means an area which is determined, pursuant to section 2(a) of the Act of September 30, 1950 (42 U.S.C. 1855a (a)), to have suffered, after August 30, 1965, and prior to July 1, 1970, a major disaster as a result of any flood, drought, fire, hurricane, earthquake, storm, or other catastrophe which is or threatens to be of sufficient severity and magnitude to warrant disaster assistance by the Federal Government. A certification by the Governor of the State in which such an area is located of the need for disaster assistance in that area under Public Law 81875 shall be deemed to be certification of need for disaster assistance under section 16(a) (1) (A) of Public Law 81-815 and an assurance of the expenditure of a reasonable amount of the funds of the government of that State, or of a political subdivision thereof, for purposes the same as, or similar to those provided for in section 16 of Public Law 81-815 with respect to that catastrophe.

(h) "Project application" means a request, on forms prescribed by the Commissioner, for Federal financial assist

ance under section 16 of the Act for the cost of school facilities needed for the replacement or restoration of public elementary or secondary school facilities destroyed or seriously damaged as a result of a major disaster or for the replacement with needed public school facilities of private elementary and secondary school facilities which were destroyed and which will not be replaced.

(i) "Replacement or restoration" of school facilities means the reconstruction of school facilities or the making of substantial structural repairs to school facilities but does not include the making of urgent repairs to protect the school facilities from further damage or deterioration or to render the school facilities immediately available for the providing of free public education.

(j) "School facilities" includes classrooms and related facilities; and equipment, machinery, and utilities necessary or appropriate as initial equipment, machinery, and utilities for school purposes. It does not include athletic stadiums, or structures or facilities intended primarily for athletic exhibitions, contests, or games or other events for which admission is to be charged to the general public.

(k) "Seriously damaged" means that a school facility structure or a portion thereof has been rendered unusable, except for temporary use with emergency repairs, until substantial structural repairs are made.

(1) "State" means a State of the Union, the District of Columbia, Puerto Rico, Guam, American Samoa or the Virgin Islands.

(20 U.S.C. 645) [31 F.R. 4403, Mar. 15, 1966, as amended at 33 F.R. 12650, Sept. 6, 1968]

Subpart B-Eligibility for Financial Assistance

§ 112.2 Eligibility for financial assist

ance.

(a) If, in accordance with section 16(a) of the Act, the Commissioner finds that, as a result of a major disaster, (1) public elementary or secondary school facilities (or public school facilities providing technical, vocational, or other special education to children of elementary or secondary school age) have been destroyed or seriously damaged, or private elementary or secondary school facilities serving children who reside in the area served by such agency have been destroyed and will not be replaced,

thereby increasing the need for public school facilities; (2) the local educational agency is utilizing or will utilize all State and other financial assistance specifically available for the replacement or restoration of such school facilities; (3) said agency does not have sufficient funds available to it from State, local, and other Federal sources and from the proceeds of insurance on such school facilities, and requires an amount of additional assistance equal to at least $1,000 or one-half of 1 percent of such agency's current operating expenditures during the fiscal year preceding the one in which such major disaster occurred, whichever is less, to provide the minimum school facilities needed (1) for the restoration or replacement of the school facilities of such agency so destroyed or seriously damaged or (ii) to serve, in facilities of such agency, children who but for the destruction of the private facilities would be served by such private facilities; and (4) said agency is making provision for the conduct, under public auspices and administration, of educational programs in which provision is made for participation by children who were enrolled in private elementary and secondary schools which are in the school attendance area of said agency and which had their operation disrupted or impaired by a major disaster, that agency is eligible to receive from the Commissioner the additional assistance under section 16 of the Act which is necessary to enable that agency to provide such facilities. If the Commissioner finds that funds will in the near future become available to the local educational agency specifically for such a purpose, the Federal financial assistance will, to the extent that such funds are to become so available, be in the form of a repayable advance under such terms and conditions as the Commissioner considers to be in the public interest under the circumstances.

(b) Federal financial assistance under section 16 of the Act will be limited to the amount deemed by the Commissioner to be necessary as additional assistance in order for the local educational agency to provide for the replacement or restoration of the school facilities destroyed or seriously damaged as a result of a major disaster, or for the replacement with public school facilities of those private elementary or secondary school facilities which were destroyed and which will not be replaced. Such assistance will be provided only if the Commissioner,

after consultation with the State and local educational agencies finds that the replacement or restoration of the school facilities would not be inconsistent with overall State plans with respect to the construction of school facilities.

(c) Federal financial assistance provided under section 16 of the Act as being necessary to enable the local educational agency to provide the needed minimum school facilities will not exceed the total amount required to pay for the cost of construction incident to the replacement or restoration of school facilities destroyed or seriously damaged as a result of a major disaster, or to provide the minimum school facilities needed to serve, in the facilities of said agency, children who but for the destruction of private facilities would be served by said private facilities, less all amounts available to the applicant specifically for such a purpose from local, State, other Federal sources, and from the proceeds of insurance on the school facilities destroyed or damaged as a result of the major disaster.

(d) All unobligated or unencumbered funds which the Commissioner deems to have been set aside in the nature of an insurance reserve for the purposes of replacing or restoring school facilities of the applicant that are destroyed or seriously damaged may be considered as funds available for the replacement or restoration of school facilities destroyed or seriously damaged as a result of the major disaster. The proceeds of bonds that have been voted specifically for the replacement of a school facility which is one of the school facilities destroyed or seriously damaged as a result of the major disaster, will also be considered as available. If, however, such proceeds are not in fact immediately available, the assistance provided by the Commissioner will be in the form of an advance to be repaid from such proceeds when they are to become available in accordance with the normal scheduling of the floating of the approved bond issue as determined by the Commissioner.

(e) Federal assistance under section 16 of the Act will be authorized in the case of a major disaster only to provide the minimum school facilities needed for the replacement or restoration of that portion of a building which was, at the time of the major disaster, in use as a

school facility or in the process of being made ready for such a use. The school facility so provided must be functional and not elaborate in design or extravagant in the use of materials in comparison with school facilities of a similar type constructed in the State within recent years, and the replacement or restoration work must be undertaken in an economical manner.

[31 FR 4403, Mar. 15, 1966, as amended at 33 F.R. 12651, Sept. 6, 1968]

§ 112.3

Certification of payments.

(a) Payments to an applicant in a major disaster area under section 16 of the Act will be made only on the basis of a completed application which satisfies the conditions for payment prescribed by section 16 of the Act and the regulations in this part.

(b) Upon approval of a project application of a local educational agency under section 16 of the Act, the Commissioner will pay to such agency an amount equal to 10 percentum of the estimated cost of the construction, incident to the replacement or restoration of the school facilities destroyed or seriously damaged as a result of the major disaster. After final drawings and specifications have been approved by the Commissioner and the construction contract has been entered into, the Commissioner will pay to the applicant local educational agency, in advance or by way of reimbursement at such times and in such installments as he may deem to be reasonable, the remainder of the Federal share of the cost of the replacement or restoration of such school facilities.

(c) Any funds paid to a local educational agency and not expended or otherwise used for the purpose for which paid shall be repaid to the Commissioner for return to the Treasury of the United States.

[31 F.R. 4403, Mar. 15, 1966, as amended at 33 F.R. 12651, Sept. 6, 1968] §§ 112.4-112.7 [Reserved] Subpart C-Application for Financial Assistance

§ 112.8 Applications.

(a) Federal financial assistance under section 16 of the Act will be provided on the basis of a completed application which is filed by an applicant and which

sets forth the basis for eligibility for such assistance and identifies the project or projects for which such assistance is requested.

(b) Each application must be in substantially approvable form and be received by the Commissioner, or enclosed in a cover addressed to the Commissioner and postmarked, on or before the applicable filing date established by paragraph (c) of this section.

(c) Each application shall be submitted to the Commissioner through the appropriate State educational agency on or before (1) 90 days following the date on which the area in which the local educational agency is, in whole or in part, located is designated as being within a major disaster area, or (2) 90 days following the date of publication in the FEDERAL REGISTER of the amendment to the regulations in this part extending their application to the particular major disaster involved, whichever is later; except that whenever such a date falls on a nonbusiness day, the final day for filing applications shall be the next succeeding business day.

(d) An application will not be deemed to be a completed application unless it contains assurances that the rates of pay for laborers and mechanics engaged in any construction under the application will be not less than the prevailing local wage rates for similar work as determined in accordance with the DavisBacon Act, 40 U.S.C. 276a-276a-5; that all contractors and subcontractors for such construction will comply with the regulations in 29 CFR Part 3 and include in all contracts the contract clauses required by 29 CFR 5.5 (a) and (c); and that the nondiscrimination clause prescribed by Executive Order 11246 of September 24, 1965 (30 F.R. 12319, 12935), will be incorporated in any contract for construction work, or modification thereof, as defined in said Executive order.

(e) An application will not be deemed to be a completed application until all necessary forms prescribed by the Commissioner, supplements thereto, supporting documents, amendments, or communications, bearing the required certifications and verifications by the State educational agency, are received by the Commissioner.

(f) There can be no Federal financial participation under section 16 of the Act

in any expenditures made before the application with respect thereto has been received by the Commissioner in substantially approvable form.

[31 F.R. 4403, Mar. 15, 1966, as amended at 33 F.R. 12651, Sept. 6, 1968]

§ 112.9 General procedure if funds are inadequate to make all requested pay

ments.

When the Commissioner deems that available appropriated funds will be inadequate to provide the financial assistance requested under all approvable applications that are timely filed, he will establish an order of priority for approval of such applications after considering the relative educational and financial needs of the local educational agencies which have submitted approvable applications.

§ 112.10 Determination of priorities among applications.

(a) The Commissioner will determine the order of priority for all applications involving the replacement or restoration of school facilities, the destruction of or serious damage to which as a result of a major disaster requires as a temporary expediency the relocation of students in another school building or classroom. Such applications of all local educational agencies will be assigned priorities on the basis of the percentage, in descending order, that the total number of children in the school district who are so relocated (after deducting the number of children so relocated from a school facility previously assigned a priority in accordance with the order of their consideration that is specified by the local educational agency) bears to the total memberships of all schools in the school district. Such membership will be determined on the basis of the latest and best information available. For the purpose of this section, the number of relocated children will include the number of children displaced from private schools as a result of the major disaster who are to be served by the local educational agency and who, but for the destruction of the private facilities, would be served by the private facilities. Those relocated children will be included in the computation of the membership of the public schools.

(b) All other applications for the replacement or restoration of school facili