Sec.

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

581.60 Under what conditions does the Secretary withhold funds?

AUTHORITY: 20 U.S.C. 3122-3130, unless otherwise noted.

SOURCE: 50 FR 32564, Aug. 13, 1985, unless otherwise noted.

Subpart A-General

§ 581.1 What is the Emergency Immigrant Education Program?

This program provides financial assistance to State educational agencies (SEAS) for supplementary educational services and costs for immigrant children enrolled in elementary and secondary public schools under the jurisdiction of local education agencies (LEAS) in the States and in elementary and secondary nonpublic schools within the district served by LEAs in the States.

(Authority: 20 U.S.C. 3127)

§ 581.2 Who is eligible to apply for a grant under the Emergency Immigrant Education Program?

An SEA may apply for a grant if it has one or more LEAs in which the sum of the number of immigrant children who are enrolled, during the fiscal year in which funds are made available under this program, in elementary and secondary public schools under jurisdiction of the LEA and in elementary or secondary nonpublic schools within the district served by the LEA, is equal to at least either

(a) Five hundred (500); or

(b) Three percent of the total number of students enrolled during that same fiscal year in public schools under the jurisdiction of the LEA and nonpublic schools within the district served by the LEA.

(Authority: 20 U.S.C. 3126)

§ 581.3 What regulations apply to the Emergency Immigrant Education Program?

The following regulations apply to the Emergency Immigrant Education Program:

(a) The Education Department General Administrative Regulations (EDGAR) in 34 CFR Part 74 (Adminis tration of Grants), 34 CFR Part 76 (State-Administered Programs), 34 CFR Part 77 (Definitions that apply to Department Regulations), 34 CFR Part 78 (Education Appeal Board), and 34 CFR Part 79 (Intergovernmental Review of Department of Education Programs and Activities).

(b) The regulations in this Part 581. (Authority: 20 U.S.C. 3122-3130)

§ 581.4 What definitions apply to the Emergency Immigrant Education Program?

(a) Definitions in EDGAR. The following terms used in this part are defined in 34 CFR 77.1: Applicant

Secondary school
Secretary
State

State educational agency
Subgrant
Supplies

(b) Program definitions. The following definitions apply to this part:

(1) "Elementary or secondary nonpublic schools" means schools which comply with the applicable compulso ry attendance laws of the State and which are exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1954.

(2)(i) “Immigrant children” means children who were not born in any State and who have been attending schools in any one or more States for less than three complete academic years.

(ii) For purposes of awards under this program, the term “immigrant" includes only persons who are "immigrants" under the Immigration and Nationality Act, as amended (8 U.S.C. 1101(15)).

(Authority: 20 U.S.C. 3122)

Subpart B-How Does a State Apply for a Grant?

§ 581.10 What assurances must a State submit to receive a grant?

An SEA must submit to the Secretary the following assurances:

(a) An assurance that the educational programs, services, and activities for which payments under this program are made shall be administered by or under the supervision of the SEA.

(b) An assurance that payments under this program shall be used for supplementary educational services and costs for immigrant children.

(c) An assurance that payments made to an SEA under this program shall be distributed among LEAS within the State on the basis of the number of immigrant children counted in those LEAS, after adjusting each LEA's payment to reflect any reductions made to the SEA's award under § 581.20 (b) and (c), based on the level of appropriations for the fiscal year and the funds provided for immigrant children under programs with the same purpose.

(d) An assurance that the SEA shall not finally disapprove, in whole or in part, any application for funds received under this program without first affording the LEA reasonable notice and opportunity for a hearing.

(e) An assurance that the SEA will submit

(1) A biennial report to the Secretary concerning the expenditure of funds by LEAs under this program; and

(2) Any other reports required by the Secretary under this program.

(f) The following assurances pertaining to the provisions of services to immigrant children enrolled in elementary and secondary nonpublic schools:

(1) An assurance that the extent consistent with the number of immigrant children enrolled in the elementary or secondary nonpublic schools within the district served by an LEA, the LEA, after consultation with appropriate officials of the schools, shall provide for the benefit of those children, secular, neutral, and nonideolo

gical services, materials, and equipment necessary for their education.

(2) An assurance that public agency shall administer and maintain control of funds provided under this program and shall administer and maintain title to any materials, equipment, and property repaired, remodeled, or constructed with program funds.

(3) An assurance that

(i) Services under this program shall be provided by employees of a public agency or through contracts by a public agency with a person, association, agency, or corporation who or which, in the provision of these services, is independent of nonpublic elementary or secondary schools and religious organizations; and

(ii) Any employment or contract as described in paragraph (f)(3)(i) of this section, be under the supervision of the public agency and that funds provided under employment or contract not be commingled with State or local funds.

(Authority: 20 U.S.C. 3128, 3130)

[50 FR 32564, Aug. 13, 1985, as amended at 53 FR 39224, Oct. 5, 1988]

§ 581.11 What counts must an SEA provide?

(a) An SEA shall provide a count, taken during the current school year, of the number of immigrant children enrolled in public and nonpublic elementary and secondary schools for those LEAs in the State, in which the number of immigrant childern enrolled is equal to at least either

(1) Five hundred; or

(2) Three percent of the total number of students enrolled in elementary and secondary public schools under the jurisdiction of an LEA and elementary and secondary nonpublic schools within the district served by the LEA.

(b)(1) For the immigrant children counted under paragraph (a) of this section, an SEA must also report the number of those children, who are eligible to receive services, and for whom funds are made available during the same fiscal year, under this program and other Federal programs

(i) That have the same purpose as the Emergency Immigrant Education Program; and

(ii) For which funds are made available for that same purpose because of the refugee, parolee, asylee, or other immigrant status of the children eligible to be served by the funds.

(2) The Secretary identifies, for the purposes of counting children under paragraph (b)(1) of this section, the following Federal programs as programs that have the same purpose as the Emergency Immigrant Education Program:

(i) Programs(s) implementing section 412(d) of the Refugee Act of 1980, as amended, 8 U.S.C. 1522.

(ii) Programs(s) implementing the Refugee Education Assistance Act of 1980, as amended, 8 U.S.C. 1522 (note).

(3) The Secretary identifies in the application notice announcing the availability of funds under the Emergency Immigrant Education Program any additional legal authorities that may be established by Congress that have the same purpose as the Emergency Immigrant Education Program. (Approved by the Office of Management and Budget under control number 18850507)

(Authority: 20 U.S.C. 3126(b))

Subpart C-How Does the Secretary Make a Grant to a State?

§ 581.20 How does the Secretary determine the amount of an award to a State?

To determine the amount of an award to an SEA, the Secretary

(a) Multiplies by $500 the number of immigrant children reported by each SEA under § 581.11(a) who are enrolled in schools In LEAS that meet the enrollment threshold in § 518.2(b).

(b) Subtracts, from the product under paragraph (a) of this section, the amount of the funds made available under any other Federal program(s) identified under § 581.11(b) for those immigrant children who are eligible to receive services under the identified program(s) and the Emergency Immigrant Education Program:

(c) Determines each SEA's share of the total funds available under this

program based on the ratio of the amount determined for an SEA under paragraph (b) of this section, to the total of the amounts determined for all SEAS, under paragraph (b) of this section; and

(d) If necessary, reduces the allocations to the SEAS to the extent necessary to bring the total amount of awards for all SEAS within the limit of the amount appropriated for the fiscal year.

(Authority: 20 U.S.C. 3123(b), 3124, 3126(b))

Subpart D-[Reserved]

Subpart E-How Does a State Make a Subgrant to an Applicant?

§ 581.40 How does a State determine the amount of a subgrant to an LEA?

(a) An SEA may reserve up to 1.5 percent of its award for the proper and efficient administration of this program.

(b) To determine the amount of a subgrant to an LEA, the SEA

(1) Subtracts from the State grant, the administrative costs allowable under paragraph (a) of this section;

(2) Multiplies by $500 the number of immigrant children reported by each LEA that meets the enrollment threshold in § 581.2;

(3) Subtracts, from the amount determined under paragraph (b)(2) of this section, the funds made available under any other Federal program(s) identified under § 581.11(b) for those immigrant children who are eligible to receive services under the identified program(s) and the Emergency Immigrant Education Program;

(4) Determines the LEA's share of the total funds available under this program based on the ratio of the amount determined for an LEA under paragraph (b)(3) of this section, to the total amount determined under paragraph (b)(1) of this section to be available for subgrants to LEAS in the State; and

(5) If necessary, reduces the allocations to the LEAS to the extent necessary to bring the total amount of subgrants to the LEAS within the amount determined under paragraph (b)(1) of

this section to be available for subgrants to LEAS.

(Authority: 20 U.S.C. 3123(b), 3126(b), 3128(a)(3))

Subpart F-What Conditions Must Be Met by the State and its Subgrantees?

§ 581.50 How may funds be used under this program?

Subgrants under this program may be used to meet the costs of providing for

(a) Supplementary educational services necessary to enable immigrant children to achieve a satisfactory level of performance in schools, including but not limited to

(1) English language instruction;

(2) Other bilingual educational services; and

(3) Special materials and supplies; (b) Additional basic instructional services that are directly attributable to the presence of immigrant children in the school district, including the costs of providing—

(1) Classroom supplies; (2) Overhead costs;

(3) Costs of construction;

(4) Acquisition or rental of space; and

(5) Transportation costs; and

(c) Essential inservice training for personnel who will be providing supplementary educational services or basic instructional services to immigrant children.

(Authority: 20 U.S.C. 3127)

§ 581.51 How is the eligibility of an immigrant child determined?

(a) Basis requirement. An SEA may not count a child under § 581.11(a) until the SEA has

(1) Determined that the child meets the definition of immigrant children in § 581.4(b)(2); and

(2) Made a record of how the child's eligibility was determined.

(b) Informational basis. (1) In determining eligibility, an SEA may rely on credible information from any source, including information contained in previous school records and information provided by the child or the child's parent or guardian.

(2) An SEA is not required to obtain documentary evidence of the child's civil status from the child or the child's parent or guardian.

(Approved by the Office of Management and Budget under control number 18850507)

(Authority: 20 U.S.C. 3122, 3125, 3126(c)) § 581.52 What requirements pertain to the participation of immigrant children in elementary and secondary nonpublic schools?

(a) An LEA is required after consultation with appropriate officials of elementary and secondary nonpublic schools within the district served by the LEA, to provide for the benefit of immigrant children enrolled in those schools, secular, neutral, and nonideological services, materials, and equipment necessary for the education of these immigrant children.

(b) If by reason of any provision of law an LEA is prohibited from providing educational services to immigrant children enrolled in elementary and secondary nonpublic schools, of if the Secretary determines that an LEA has substantially failed or is unwilling to provide for the participation on an equitable basis of children enrolled in elementary or secondary nonpublic schools, the Secretary

(1) May waive the requirement that the LEA serve those children; and

(2) Arrange for the provision of services to those children.

(c) Any waiver of the requirements that an LEA provide services to immigrant children enrolled in elementary and secondary nonpublic schools is subject to consultation, withholding, notice, and judicial review requirements in accordance with the provisions of Chapter 1 of Title I of the Elementary and Secondary Education Act of 1965, as amended, and the regulations in §§ 581.53 through 581.58.

(Authority: 20 U.S.C. 3128(a)(6), 3129(b)) [50 FR 32564, Aug. 13, 1985, as amended at 53 FR 39224, Oct. 5, 1988]

§ 581.53 When does the Secretary implement a bypass?

(a) The Secretary implements a bypass if an LEA

(1) Is prohibited by law from providing the services under this part for private school children on an equitable basis as required in § 581.52; or

(2) Has substantialaly failed or is unwilling to provide the services under this part for private school children on an equitable basis as required in § 581.52.

(b) If the Secretary implements a bypass, the Secretary waives the responsibility of the LEA for providing supplemental educational services for private school children and arranges to provide the required services. Normally, the Secretary hires a contractor to provide the supplementary educational services for private school children under a bypass. The Secretary deducts the cost of these services, including any administrative costs, from the appropriate allotment of Emergency Immigrant Education Program funds. In arranging for these services, the Secretary consults with appropriate public and private school officials. (Authority: 20 U.S.C. 3129(b))

§ 581.54 What notice does the Secretary give?

(a) Before taking any final action to implement a bypass, the Secretary provides the affected LEA, with written notice.

(b) In the written notice, the Secretary

(1) States the reason for the proposed bypass in sufficient detail to allow the LEA to respond;

(2) Cites the requirement with which the LEA allegedly failed to comply; and

(3) Advises the LEA that it has at least 45 days from receipt of the written notice to submit written objections to the proposed bypass and to request in writing the opportunity for a hearing to show cause why the bypass should not be implemented.

(c) The Secretary sends the notice to the LEA by certified mail with return receipt requested.

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

§ 581.55 What bypass procedures does the Secretary follow?

Sections 581.56 through 581.58 contain the procedures that the Secretary

uses in conducting a show cause hearing. These procedures may be modified by the hearing officer if all parties agree 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 hear. ing 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 hear ing 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