(b)-(c) [Reserved]

(d) "Evaluation" means determining the extent to which management and program objectives are being achieved, using measures of efficiency and effectiveness to compare results with predetermined standards.

(e) [Reserved]

(f) "Planning" means a series of activities involving assessing needs, defining objectives, identifying problems, establishing priorities, examining alternative solutions, selecting possible approaches, and formulating action programs, including strategies for their evaluation, to achieve specified goals.

(g) [Reserved]

(h) "State" means, in addition to the several States of the Union, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands. (i) "State educational agency"

means the State board of education or other agency or officer primarily responsible for the State supervision of public elementary and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.

[35 FR 7892, May 22, 1970, as amended at 38 FR 30658, Nov. 6, 1973]

§107.2 Purpose.

It is the purpose of the regulations in this part to cover grants authorized in section 402 of the Act to be made by the Commissioner to State educational agencies for expenses for planning for the succeeding year programs or projects for elementary and secondary education, including, where appropriate, preschool programs or projects, under programs for which the Commissioner has responsibility for administration, either by statute or by delegation pursuant to statute, and for evaluation of such programs or projects. Grants in equal amounts will be made, consistent with applications approved pursuant to § 107.3, for each State of the Union; in lesser equal amounts for the District of Columbia and the Commonwealth of Puerto Rico; and in yet lesser equal amounts for Guam, American Samoa, the

§ 111.2 Opportunity for hearing.

(a) Any applicant whose application under Public Law 815 or Public Law 874 is disapproved by the Commissioner, or his delegatee, in whole or in part, or which is dissatisfied with the Commissioner's action, or failure to act (or that of his delegatee), upon its application under such public laws shall be entitled to a hearing thereon.

(b) A hearing shall be given to an applicant dissatisfied with an adverse administrative action of the Commissioner (or of his delegatee) with respect to its application only (1) if a written request for such a hearing with respect to such action is filed with the Commissioner within 60 days of notice to the applicant of such action; and (2) if the action at issue is material to the determination of the applicant's rights and is not committed wholly to the discretion of the Commissioner. The time within which such a request for hearing must be filed will not be extended by a request for reconsideration or by reconsideration by the Commissioner on his own motion, unless the time for filing such request is extended in writing by the Commissioner.

(c) In the event the Commissioner has reason to believe that further payments to an applicant under Public Law 815 should be withheld by reason of the failure of the applicant to comply with the conditions of such law, he shall so notify the applicant. Such notice, a copy of which shall likewise be sent to the State educational agency, shall either (1) advise the applicant of the specific provision under which the Commissioner's action is taken and the basis for his belief and fix a date not less than 20 days, nor more than 60 days, after the date of such notice within which the applicant may request that the matter be scheduled for hearing in due course; or (2) advise the applicant that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be subject to change for cause. The failure of an applicant without the consent of the Commissioner to request a hearing under subparagraph (1) of this paragraph or to appear at a hearing for which a date has been set,

shall be deemed to be a waiver of the right to a hearing under this subsection and consent to the Commissioner making a decision on the basis of such information as is available to him.

[18 FR 6707, Oct. 22, 1953, as amended at 24 FR 3880, May 14, 1959]

§ 111.3 Procedure in requesting hearing.

A request by an applicant for a hearing in accordance with this part must be addressed to the Commissioner and must clearly specify in writing the issues of fact and law to be considered, and, where the applicant is not a State agency, a copy of such request should be furnished to the State educational agency by the applicant.

§ 111.4 Reconsideration after request or order for hearing.

The request for a hearing, or the fact that any matter or issue has been scheduled 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 relevant 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 whenever 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.

AUTHORITY: Section 16, (79 Stat. 1158) added to Pub. L. 81-815 (20 U.S.C. 646) as amended, unless otherwise noted.

SOURCE: 41 FR 50777, Nov. 17, 1976, unless otherwise noted.

Subpart A-Definitions

§ 112.1 Definitions.

As used in this part

(a) "Act" means Pub. L. 815, 81st Congress (64 Stat. 976), as amended, section 16 of which was added by the first section of Pub. L. 89-313 (79 Stat. 1158) and amended by Pub. L. 90-247. (20 U.S.C. 646)

(b) "Complete application" means a preapplication, Exhibit M-4 of Federal Management Circular 74-7 and such other supplemental information as the Commissioner may request.

(20 U.S.C. 636(b)(1), 646(c))

(c) "Disaster review team" means a group comprised of representatives of the Office of Education, Office of Facilities Engineering and Property Management, (DHEW), the State educational agency (when available), and local educational agencies.

(20 U.S.C. 646)

(d) "Filed" means that all necessary parts of the preapplication or the complete application, as appropriate, bearing the required certification and verifications by the State educational agency, are received by the Commissioner on or before the applicable filing date.

(20 U.S.C. 636(a), (b)(2)(B), (c))

(e) "Incident period" means: (1) for major disasters those days officially designated by the President or his representative as the dates upon which major disaster damages occurred; (2) for pinpoint disasters the day(s) determined by the Commissioner to be the date(s) on which the pinpoint disaster damages occurred.

(20 U.S.C. 646)

(f) "Initial equipment" means any movable equipment necessary and appropriate to equip school facilities. (20 U.S.C. 645(9), 646(a))

(g) "Latent damages" means those damages which, in the judgment of the Commissioner, constitute disaster caused damages to school facilities which may not be apparent immediately following the incident period of the disaster.

(20 U.S.C. 646(a))

(h) "Local educational agency" as used in this part is defined in sections 15(11) and 16(a)(1)(A)(B) of the Act. If the local education agency as so defined does not have the responsibility for providing school facilities, and that responsibility is vested in a State, county, city, or town agency, then the term shall include such an agency, together with the agency having exclusive administrative control and direction of other phases of free public education.

(20 U.S.C. 645(11), 646(a)(1)(A)(B))

(i) "Major disaster area" means an area which is determined, pursuant to sections 102(2) and 301 of the Disaster Relief Act of 1974 to have suffered, after August 30, 1965, 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. That certification which is required by section 301 of the Disaster Relief Act of 1974 by the Governor of the State in which such an area is located (relating the need for disaster assistance in that area and providing assurance of the expenditure of a reasonable amount of the funds of the government of that State, or of a political subdivision thereof) will be accepted to meet the certification requirement contained in section 16(a)(2) of the Act, if it contains sufficient information to meet the purposes of that section.

(20 U.S.C. 646(a)(1)(A), (a)(2), 1224(c); 42 U.S.C. 4402(1))

(j) "Member" of a school shall be determined in accordance with State law or regulation. In the absence of State law or regulation, such a member is a Ichild who has presented himself at school and has been placed on the current roll. Such a child shall be considered a member from the date of en

rollment until he permanently leaves the school. Permanent leaving shall be determined under State rules if such are applicable, but the date of permanent withdrawal shall be the date on which it is officially known that the pupil has left school, and not necessarily the first day after the date of last attendance. Notwithstanding the above, if contracts to make tuition payments with regard to certain children are utilized, then membership shall be determined in accordance with the provisions of section 15(5) of the Act.

(20 U.S.C. 645(5))

(k) "Membership" means the sum of members of a school as defined in § 112.1(i).

(20 U.S.C. 645(5))

(1) "Minimum school facilities" means: (1) for major disasters, the lesser of either (i) or (ii): (i) Those school facilities necessary to operate a program of free public education for the membership of the applicant at normal capacity in accordance with the laws and customs of the State, plus those school facilities to serve, in the facilities of such agency, those children referred to in section 16(a)(5)(B) of the Act, or

(ii) Those school facilities which existed prior to the disaster (limited, however, to replacement of such areas in like-kind), plus those which are necessary to serve, in the facilities of such agency, those children referred to in section 16(a)(5)(B) of the Act;

(2) For pinpoint disasters, the lesser of either (i) or (ii):

(i) Those school facilities necessary to operate a program of free public education for the membership of the applicant at normal capacity in accordance with the laws and customs of the State, or (ii) Those school facilities which existed prior to the disaster (limited, however, to replacement of such areas in like-kind).

(3) Such term does not include (i) 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; or

(ii) Interests in land and off site improvements.

(4) Such term may include an auditorium or gymnasium, or both, if justified by the size of the school's enrollment, the educational program to be conducted and the standards and practices in the State. Such facilities may provide seating only for the capacity of the student enrollment. The limitation concerning the inclusion of auditoriums and gymnasiums, and the seating capacity of such, shall not apply to those situations covered by paragraphs (1)(1)(ii) and (2).

(5) Air conditioning may be provided to replace any air conditioning which existed prior to the disaster. If no such air conditioning existed prior to the disaster, then it may be provided as minimum school facilities in all States which are in whole or in part south of the 39° parallel, provided a letter is obtained from the authorized representative of the State that air conditioning is being provided in school facilities currently being constructed solely with State and local funds. Such air conditioning may be provided in any other State only if such letter is obtained and supported by a survey which substantiates that air conditioning is provided in a majority of recently constructed school facilities within the State.

(20 U.S.C. 645(9), (10), 646(a)(5))

(m) "Normal capacity" of a schoolroom means the number of pupil stations which the room accommodates under ordinary conditions in accordance with the laws and customs of the State governing free public education. (20 U.S.C. 646(a))

(n) "Pinpoint disaster" as used in this part means one caused by a flood, hurricane, earthquake, storm, fire, or other catastrophe. Such disaster must be local in extent and not of sufficient severity or magnitude to be determined by the President to be a major disaster pursuant to section 2(a) of the Act of September 30, 1950 (42 U.S.C. 1855a(a)). It does not include loss or damage caused by negligence or malicious action. In the case of a disaster of unknown origin, such as a fire, it will be presumed that such disaster is