it is appropriate to modify them for a particular case.

(Authority: 20 U.S.C. 3129(b))

§ 581.56 What are the functions of a hearing officer?

(a) If an LEA requests a show cause hearing, the Secretary appoints a hearing officer and notifies appropriate representatives of the affected private school children that they may participate in the hearing.

(b) The hearing officer has no authority to require or conduct discovery or to rule on the validity of any statute or regulation.

(c) The hearing officer notifies the LEA, representatives of the private school children and the Department of Education of the time and place of the hearing.

(Authority: 20 U.S.C. 3129(b))

§ 581.57 What are the hearing procedures?

(a) At the hearing a transcript is taken. The LEA and representatives of the private school children each may be represented by legal counsel, and each may submit oral or written evidence and arguments at the hearing.

(b) Within ten days after the hearing, the hearing officer indicates that a decision will be issued on the basis of the existing record, or requests further information from the LEA, representatives of the private school children, or Department of Education officials.

(Authority: 20 U.S.C. 3129(b))

§ 581.58 What are the post-hearing procedures?

(a) Within 120 days after the hearing record is closed, the hearing officer issues a written decision on whether the proposed bypass should be implemented. The hearing officer sends copies of the decision to the LEA, representatives of private school children, and the Secretary.

(b) The LEA and representatives of private school children each may submit written comments on the decision to the Secretary within thirty days from receipt of the hearing officer's decision.

(c) The Secretary may adopt, reverse, or modify the hearing officer's decision.

(Authority: 20 U.S.C. 3129(b))

§ 581.59 What are the filing requirements?

(a) Any written submission under this subpart must be filed by hand-delivery, by mail, or by facsimile transmission. The Secretary discourages the use of facsimile transmission for documents longer than five pages.

(b) The filing date under paragraph (a) of this section is the date the document is

(1) Hand-delivered; (2) Mailed; or

(3) Sent by facsimile transmission.

(c) A party filing by facsimile transmission is responsible for confirming that a complete and legible copy of the document was received by the Department.

(d) If a document is filed by facsimile transmission, the Secretary or the hearing officer, as applicable, may require the filing of a follow-up hard copy by hand-delivery or by mail within a reasonable period of time.

(e) If agreed upon by the parties, service of a document may be made upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 3129(b)) [57 FR 56797, Nov. 30, 1992]

Subpart G-What Compliance Procedures Are Used by the Department of Education?

§ 581.60 Under what conditions does the Secretary withhold funds?

(a) If the Secretary determines, after affording reasonable notice and opportunity for a hearing to an SEA, that the SEA has failed to meet the requirements of this program, the Secretary— (1) Notifies the SEA that further payments under this program will not be made to the SEA; or

(2) Notifies the SEA that it may not make further payments under this program to specified LEAs whose actions cause or are involved in the failure to meet program requirements.

(b) Payments withheld under paragraph (a) of this section, will not be re

sumed until the Secretary is satisfied that there is no longer a failure to comply.

(c)(1) If the Secretary determines, after reasonable notice and opportunity for a hearing to an SEA, that any amount of a payment made to a State will not be used by the State for carrying out the purposes of this program, the Secretary makes that amount available to one or more other States to the extent that the Secretary determines that those States are able to use additional funds for carrying out the purposes of the program.

(2) The Secretary considers any additional amount made available to an SEA under this provision from an appropriation for a fiscal year as part of that SEA's award for that fiscal year, but the additional amount remains available until the end of the succeeding fiscal year.

(d) The procedures in 34 CFR part 78 (Education Appeal Board) governing the withholding of funds apply to any determinations made by the Secretary under paragraphs (a) and (c) of this section. (Authority: 20 U.S.C. 3125, 3126 (b) and (c))