Code of Federal Regulations: Containing a Codification of Documents of ...

COMPLAINT PROCEDURES OF THE STATE

§ 76.780 A State shall adopt complaint procedures.

(a) A State shall adopt written procedures for

(1) Receiving and resolving any complaint that the State or a subgrantee is violating a Federal statute or regulations that apply to a program;

(2) Reviewing an appeal from a decision of a subgrantee with respect to a complaint; and

(3) Conducting an independent onsite investigation of a complaint if the State determines that an on-site investigation is necessary.

(b) Sections 76.780-76.782 apply to the program under Title IV of the Elementary and Secondary Education Act unless administrative funds for that program are appropriated under Title V-A of that Act.

CROSS-REFERENCE. See § 76.1 Programs to which Part 76 applies.

(Authority: 20 U.S.C. 1221e-3(a)(1))

§ 76.781 Minimum complaint procedures. A State shall include the following in its complaint procedures:

(a) A time limit of 60 calendar days after the State receives a complaint(1) If necessary, to carry out an independent on-site investigation; and

(2) To resolve the complaint.

(b) An extension of the time limit under paragraph (a) of this section only if exceptional circumstances exist with respect to a particular complaint.

(Authority: 20 U.S.C. 1221e-3(a)(1))

§ 76.782 An organization or individual may file a complaint.

An organization or individual may file a written signed complaint with a State. The complaint must include—

(a) A statement that the State or a subgrantee has violated a requirement of a Federal statute or regulations that apply to a program; and

(b) The facts on which the statement is based.

(Authority: 20 U.S.C. 1221e-3(a)(1))

§ 76.783 State educational agency actionsubgrantee's opportunity for a hearing. (a) A subgrantee may request a hearing if it alleges that any of the following actions by the State educational agency violated a State or Federal statute or regulation:

(1) Ordering, in accordance with a final State audit resolution determination, the repayment of misspent or misapplied Federal funds; or

(2) Terminating further assistance for an approved project.

(b) The procedures in § 76.401(c)(2)– (7) apply to any request for a hearing under this section.

NOTE: This section is based on a provision in the General Education Provisions Act (GEPA). Section 427 of the Department of Education Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the extent inconsistent with the DEOA, the GEPA "shall apply to functions transferred by this Act to the extent applicable on the day preceding the effective date of this Act." Although standardized nomenclature is used in this section to reflect the creation of the Department of Education, there is no intent to extend the coverage of the GEPA beyond that authorized under Section 427 or other applicable law.

(Authority: 20 U.S.C. 1231b-2)

[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980, and amended at 45 FR 86296, Dec. 30, 1980]

Subpart H-What Procedures Does the Secretary Use to Get Compliance?

CROSS-REFERENCE. See 34 CFR Part 74, Subpart M-Grant and Subgrant Closeout, Suspension, and Termination.

§ 76.900 Waiver of regulations prohibited.

(a) No official, agent, or employee of ED may waive any regulation that applies to a Department program unless the regulation specifically provide that it may be waived.

(b) No act or failure to act by an official, agent, or employee of ED can affect the authority of the Secretary to enforce regulations.

93-118 0-87--10

(Authority: 43 Dec. Comp. Gen. 31(1963))

§ 76.901 Education Appeal Board.

(a) The Education Appeal Board, established under Part E of GEPA, has the following functions:

(1) Audit appeal hearings under Section 452 of GEPA.

(2) Withholding and termination hearings under Section 453 of GEPA. (3) Cease and desist hearings under Section 453 of GEPA.

(4) Any other proceeding designated by the Secretary.

(b) The regulations for the Education Appeal Board are in 34 CFR Part 78.

(Authority: 20 U.S.C. 1234)

§ 76.902 Judicial review.

After a hearing by the Secretary, a State is usually entitled-generally by the statute that required the hearing-to judicial review of the Secretary's decision.

(Authority: 20 U.S.C. 1221e-3(a)(1))

PART 77-DEFINITIONS THAT APPLY TO DEPARTMENT REGULATIONS

§ 77.1 Definitions that apply to all Department programs.

(a) [Reserved]

(b) Unless a statute or regulation provides otherwise, the following definitions in Part 74 of this title apply to the regulations in Title 34 of the Code of Federal Regulations. The section of Part 74 that contains the definition is given in parentheses.

"Budget" (74.104)

"Contract" (includes definition of "Subcontract") (74.3)

"Equipment" (74.132)

"Federally recognized Indian tribal government" (74.3)

"Grant" (74.3)

"Grantee" (74.3)

"Local government” (74.3)

"Personal property” (74.132) "Real property” (74.132)

"Recipient" (74.3)

"Subgrant" (74.3)

"Subgrantee" (74.3)

"Supplies" (74.132)

nitions also apply to the regulations in this title:

“Acquisition” means taking ownership of property, receiving the property as a gift, entering into a lease-purchase arrangement, or leasing the property. The term includes processing, delivery, and installation of property.

"Applicant" means a party requesting a grant or subgrant under a program of the Department.

"Application” means a request for a grant or subgrant under a program of the Department.

"Award" means an amount of funds that the Department provides under a grant or contract.

"Budget period" means an interval of time into which a project period is divided for budgetary purposes.

"Department" means the U.S. Department of Education.

"Director of the Institute of Musuem Services" means the Director of the Institute of Museum Services or an officer or employee of the Institute of Museum Services acting for the Director under a delegation of authority.

"Director of the National Institute of Education" means the Director of the National Institute of Education or an officer or employee of the National Institute of Education acting for the Director under a delegation of authority. "ED" means the U.S. Department of Education.

"EDGAR" means the Education Department General Administrative Regulations (34 CFR Parts 74, 75, 76, 77, and 78).

"Elementary school” means a day or residential school that provides elementary education, as determined under State law.

"Facilities" means one or more structures in one or more locations.

"Fiscal year" means the Federal fiscal year-a period beginning on October 1 and ending on the following September 30.

"GEPA" means The General Education Provisions Act.

"Grant period” means the period for which funds have been awarded.

"Local educational agency" means(a) A public board of education or other public authority legally constituted within a State for either admin

(1) A city, county, township, school district, or other political subdivision of a State; or

(2) Such combination of school districts or counties a State recognizes as an administrative agency for its public elementary or secondary schools; or

(b) Any other public institution or agency that has administrative control and direction of a public elementary or secondary school.

(c) As used in 34 CFR Parts 400, 408, 525, 526 and 527 (vocational education programs), the term also includes any other public institution or agency that has administrative control and direction of a vocational education program.

“Minor remodeling” means minor alterations in a previously completed building. The term also includes the extension of utility lines, such as water and electricity, from points beyond the confines of the space in which the minor remodeling is undertaken but within the confines of the previously completed building. The term does not include building construction, stuctural alterations to buildings, building maintenance, or repairs.

means

"Nonprofit," as applied to an agency, organization, or institution, that it is owned and operated by one or more corporations or associations whose net earnings do not benefit, and cannot lawfully benefit, any private shareholder or entity. "Nonpublic," as applied to an agency, organization, or institution, means that the agency, organization, or institution is nonprofit and is not under Federal or public supervision or control.

"Preschool" means the educational level from a child's birth to the time at which the State provides elementary education.

"Private," as applied to an agency, organization, or institution, means that it is not under Federal or public supervision or control.

"Project" means the activity described in an application.

"Project period” means the period for which the appropriate official of the Department approves a project.

"Public," as applied to an agency, organization, or institution, means that the agency, organization, or institution is under the administrative supervision or control of a government other than the Federal Government.

"Secondary school" means a day or residential school that provides secondary education as determined under State law. In the absence of State law, the Secretary may determine, with respect to that State, whether the term includes education beyond the twelfth grade.

"Secretary" means the Secretary of the Department of Education or an official or employee of the Department acting for the Secretary under a delegation of authority.

"Service function," with respect to a local educational agency

(a) Means an educational service that is performed by a legal entitysuch as an intermediate agency

(1) (i) Whose jurisdiction does not extend to the whole State; and

(ii) That is authorized to provide consultative, advisory, or educational services to public elementary or secondary schools; or

(2) That has regulatory functions over agencies having administrative control or direction of public elementary or secondary schools.

(b) The term does not include a service that is performed by a cultural or educational resource.

"State" means any of the 50 States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, or the Trust Territory of the Pacific Islands.

"State educational agency" means the State board of education or other agency or officer primarily responsible for the supervision of public elementary and secondary schools in a State. In the absence of this officer or agency, it is an officer or agency designated by the Governor or State law.

"Work of art" means an item that is incorporated into facilities primarily because of its aesthetic value.

SOURCE: 46 FR 27305, May 18, 1981, unless otherwise noted.

Subpart A-General

§ 78.1 Purpose.

These regulations contain rules for the conduct of proceedings before the Education Appeal Board which was established in accordance with Section 451 of the General Education Provision Act.

(Authority: 20 U.S.C. 1234 (a) and (e))

§ 78.2 Jurisdiction.

(a) The Board has jurisdiction to(1) Review final audit determinations concerning any applicable program (See § 78.3 (Definitions) for the definition of an applicable program.).

(2) Conduct withholding or termination hearings initiated by Department of Education (ED) officials in connection with any applicable program (See § 78.3 (Definitions) for the definition of an applicable program.).

(3) Conduct cease and desist proceedings initiated by authorized ED officials in connection with any applicable program (See § 78.3 (Definitions) for the definition of an applicable program.).

(4) Conduct hearings, in connection with an applicable program (See § 78.3 (Definitions) for the definition of an applicable program), which involve— (i) A determination that a grant is void;

(ii) The disapproval of a recipient's written request for permission to incur an expenditure during the term of a grant; or

(iii) A determination made by an authorized ED official with respect to cost allocation plans negotiated with State and local units of government, and indirect cost rates, computer, fringe benefit, and other special rates negotiated with institutions of postsecondary education, State and local government agencies, hospitals, and other nonprofit institutions (except for determinations which are the subject of an appeal filed by the grantee to the Grant Services Contract Appeal Board or to the Armed Services Board of Contract Appeals regarding a contract with the Department); and

(5) Conduct other proceedings as designated by the Secretary of Education (the Secretary) in the FEDERAL REGISTER.

(b) The Board also has jurisdiction under Section 182 of Title I of the Elementary and Secondary Education Act of 1965, as amended, to hear an appeal from each State educational agency (SEA) that has received written notice that the Secretary intends to disapprove the SEA's application for Title I funds. An appeal under section 182 shall be conducted as a withholding hearing.

(Authority: 20 U.S.C. 1234(a), 2832(b))

§ 78.3 Definitions.

"Appellant" means an SEA or other recipient that requests

(a) A review of a final audit determination;

(b) A witholding or termination hearing; or

"Applicable program" means any program administered by an authorized ED official except the following student financial assistance programs authorized by Title IV, and governed by regulations promulgated under Section 487, of the Higher Education Act of 1965, as amended:

(a) National Direct Student Loan Program.

(b) College Work-Study Program.

(d) Supplemental Educational Opportunity Grant Program.

(e) Guaranteed Student Loan Program.

(f) Parent Loans for Undergraduate Students Program.

(g) State Student Incentive Grant Program.

"Authorized ED official" means(a) The Secretary; or

(b) A person employed by ED who has been designated to act under the Secretary's authority.

"Board" means the Education Appeal Board of ED.

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