Provisions Act, including all accounting (b) Period of retention. (1) Except as provided in paragraphs (b) (2) and (d) of this section, the records specified in paragraph (a) of this section shall be retained (i) for 3 years after the date of the submission of the final expenditure report or (ii) for grants and contracts which are renewed annually, for 3 years after the date of the submission of the annual expenditure report. (2) Records for nonexpendable personal property which was acquired with Federal funds shall be retained for 3 years after its final disposition. (c) Microfilm copies. Recipients may substitute microfilm copies in lieu of original records in meeting the requirements of this section. (d) Audit questions. The records involved in any claim or expenditure which has been questioned by Federal audit shall be further retained until resolution of any such audit questions: Provided, however, That records need not be retained if they relate to a grant or contract with respect to which actions by the United States to recover for diversion of Federal funds are barred by the statute of limitation in 28 U.S.C. 2415(b) (e) Audit and examinations. (1) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access for the purpose of audit and examination to the records specified in paragraph (a) of this section and to any other pertinent books, documents, papers, and records of the recipient. (2) In the case of a contract or subcontract negotiated by the recipient and exceeding $2,500, the recipient, the Secretary, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the contractor or subcontractor which the recipient, the Secretary, the Comptroller General of the United States, or any of their duly authorized representatives determine are pertinent to the specific grant or contract for the purpose of making audit, examination, excerpts, and transcripts. (f) Records for indirect cost rate proposals, etc.-(1) Applicability. This paragraph applies to records supporting (1) indirect cost rate proposals, (ii) cost allocation plans of State and local govern 90-004-76 ments pursuant to Appendix B of this subchapter, (iii) hospital patient care rate proposals, and (iv) any similar accounting computations of the rate at which a particular group of costs is chargeable to a grant or contract. Examples of the latter are computer usage chargeback rate computations and composite fringe benefit rate computations. (2) If submitted to the Federal Government. If the proposal, plan, or other computation is required to be submitted to the Federal Government to form the basis for negotiation of the rate, then the three-year retention period for its supporting records starts from the date of such submission. (3) If not submitted to the Federal Government. If the proposal, plan, or other computation is not required to be submitted to the Federal Government for negotiation purposes, then the three-year retention period for its supporting records starts from the end of the recipient's fiscal year (or other accounting period) covered by the proposal, plan, or other computation. (20 U.S.C. 1232c (a); 28 U.S.C. 2415 (b); OMB Circular No. A-102, Attachment C.) § 100a.481 Unexpended funds. In the event that the amounts previously awarded have not been obligated pursuant to the approved project and, in the judgment of the Commissioner, will not be obligated for such purposes, the Commissioner may, upon notice to the recipient, reduce the amount of the grant or contract to an amount consistent with the recipient's needs pursuant to § 100a.495. (20 U.S.C. 1232d.) § 100a.482 Withholding of funds. The approval of a grant, or the entering into of a contract or other arrangement, and any payment pursuant thereto, shall not be deemed to waive the right of the Commissioner to withhold funds by reason of the failure of a recipient to observe, either before or after such administrative action, any Federal requirements. (20 U.S.C. 1221c(b) (1).) § 100a.483 Waiver of law prohibited. No official, agent, or employee of the Office of Education or the Department of Health, Education, and Welfare shall have the authority to walve or alter any provision of the regulations in this chapter (except through amendment by pub lication in the FEDERAL REGISTER), or § 100a.494 Closeout. (a) "Closeout" means the process by which the Commissioner determines that all applicable administrative actions and all required work of the grant or contract have been completed by the recipient and the Commissioner. (b) In closing out grants and contracts, the following shall be observed: (1) Upon request, the Commissioner will make, or arrange for, prompt payment to the recipient for allowable reimbursable costs not covered by previous payments. (2) The recipient shall immediately refund to the Federal Government, or otherwise dispose of in accordance with instructions from the Commissioner, any unencumbered balance of cash advanced to the recipient. (3) The recipient shall submit, within 90 days after the date of completion of the grant or contract, all financial, performance, and other reports required as a condition of the grant or contract. The Commissioner may grant extensions when requested by the recipient. (4) The Commissioner will make a settlement for any upward or downward adjustment of the Federal share of costs, to the extent called for by applicable statutes, regulations, or the terms and conditions of the grant or contract. (5) In the event a final audit has not been performed prior to the closeout of the grant or contract, the Commissioner retains the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit. (b) The provisions of Subpart L of this part shall be observed by the recipient in accounting for any property acquired with Federal funds, or received from the Federal Government in connection with the grant or contract. (OMB Circular No. A-102, Attachment L.) § 100a.495 Termination and suspension for cause. (a) Termination. (1) This section applies to the Federal programs of assistance listed in § 100a.10(a), except those Federal programs under which recipients are entitled to an opportunity for a hearing pursuant to 5 U.S.C. 554. (2) This section applies to contracts other than those specified in § 100a.10 (b). (3) Assistance under any Federal program to which this part is applicable may be terminated in whole or in part if the Commissioner determines, after affording the recipient reasonable notice and an opportunity to be heard, that the recipient has failed to carry out its approved project proposal in accordance with the applicable law and the terms of such assistance or has otherwise failed to comply with any law, regulation, assurance, term or condition applicable to the grant or contract. (b) Notice of termination. Proceedings with respect to the termination of the grant or contract shall be initiated by the mailing of a notice to the recipient setting forth the basis of the proposed termination and the procedures available to the recipient under this section and Part 16 of this title. (c) Suspension of assistance. Subject to paragraph (f) of this section, assistance may be suspended during the pendency of a termination proceeding initiated pursuant to this section. (d) Notice of suspension. If the Commissioner determines that suspension of assistance during the pendency of a termination proceeding is necessary, notice of the suspension shall be mailed to the recipient (which may be included in the notice of termination). The notice of suspension shall: (1) Inform the recipient of that determination, (2) advise the recipient of the effective date of the suspension (which will be no earlier than the date of the notice of termination) and (3) offer the recipient an opportunity to show cause why such action should not be taken. (e) Effect of notice of suspension. (1) The notice required under paragraph (d) of this section shall advise the recipient that no new expenditures or obligations made or incurred in connection with the grant or contract during the period of the suspension will be recognized by the Government in the event that assistance is ultimately terminated. (2) Expenditures to fulfill legally enforceable commitments made prior to the notice of suspension, in good faith and in accordance with the recipient's approved project, and not in anticipation of suspension or termination, will not be considered new expenditures. (f) Opportunity to show cause. If the recipient requests an opportunity to show cause why a suspension of assistance should not be continued or imposed, the Commissioner will, within 7 days after receiving such request, hold an informal meeting for that purpose. (g) Grant appeals board. (1) The recipient may appeal the Government's decision to terminate the grant or contract by submitting an application for review to the Departmental Grant Appeals Board pursuant to Part 16 of this title. (2) Either the recipient or the Commissioner may request an informal meeting regarding the proposed termination, but for the purposes of § 16.5(b) (2) of this title, the recipient shall be deemed to have exhausted the Office of Education's informal procedures upon its receipt of the notice of termination. (h) Effective date of termination. Termination of assistance under this section will be effected by the delivery to the recipient of the notice of termination under paragraph (b) of this section; or, where the recipient invokes the procedures available under paragraph (g) of this section, upon a final decision under § 16.10 of this title. (i) Effect of termination. (1) In the event assistance is terminated under this section, financial obligations incurred by the recipient prior to the effective date of such termination will be allowable to the extent they would have been allowable had such assistance not been terminated, except that (1) no obligations incurred during the period in which such assistance was suspended and no obligations incurred in anticipation of suspension or termination will be allowed and (ii) the recipient shall cancel as many outstanding obligations as possible. (2) Within 60 days of the effective date of termination of assistance under this section, the recipient shall furnish an itemized accounting of funds expended, obligated, and remaining. Within 30 days of a request therefor, the recipient shall remit to the Government any amounts found due. (20 U.S.C. 1221c(b) (1); OMB Circular No. A-102, attachment L, 2-3.) 100a.496 Termination grounds. the two parties shall agree upon the termination conditions, including the effective date and in the case of partial terminations, the portion to be terminated, or (2) By the recipient, upon written notification to the Commissioner, setting forth the reasons for the termination. the effective date, and in the case of partial terminations, the portion to be terminated. (b) When a grant is terminated pursuant to paragraph (a) of this section, the recipient shall not incur new obligations for the terminated portion after the effective date, and shall cancel as many outstanding obligations as possible. The Commissioner will allow full credit to the recipient for the Federal share of the noncancellable obligations properly incurred by the recipient prior to termination. (OMB Circular No. A-102, Attachment L.) on other (a) Except for matters subject to § 100a.495, grants and contracts may be terminated in whole or in part only as follows: (1) By the Commissioner with the consent of the recipient, in which case Payments. Obligation by recipients. Except to the extent inconsistent with an applicable statute or regulation, the provisions contained in this part apply to all Federal programs of assistance authorized under the following authorities: (a) Financial assistance to State agencies and local educational agencies under title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 241a); (b) School library resources, textbooks, and other instructional materials under title II of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 821); (c) Supplementary educational centers and services; guidance, counseling, and testing under title III of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 841); (d) Libraries and learning resources and educational innovation and support under title IV of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 1801); (e) Education of handicapped children under part B of the Education of the Handicapped Act (20 U.S.C. 1411); (f) Vocational education programs under the Vocational Education Act of 1963: part B (State vocational education programs); part C, section 131(b) (Research and training in vocational education); part D, section 142(d) (Exemplary programs and projects); part E, section 152 (Residential vocational education-State programs); part F (Consumer and homemaking education); part G (Cooperative vocational education programs); and part H (Work-study programs for vocational education students) (20 U.S.C. 1262, 1281 (b), 1302(d), 1322, 1341, 1351, and 1371); (g) Programs under the Adult Education Act (except section 314 thereof) (20 U.S.C. 1201); (h) Community service and continuing education programs under title I of the Higher Education Act of 1965 (except section 106 thereof) (20 U.S.C. 1001); (i) Financial assistance for strengthening instruction in science, mathematics, modern foreign languages, and other critical subjects under title III-A of the National Defense Education Act of 1958 (except section 305 thereof) (20 U.S.C. 441); (j) Programs under the Library Services and Construction Act (20 U.S.C. 351); (k) Attracting and qualifying teachers to meet critical teacher shortages under part B-2 of the Education Professions Development Act (20 U.S.C. 1108); and (1) State reading improvement programs under part B of title VII of the Education amendments of 1974 (20 U.S.C. 1941). (20 U.S.C. 1221e-3 (a) (1)) [41 FR 1395, Jan. 7, 1976] Subpart B-State Plans, General Applications, and Annual Program Plans SOURCE: 41 FR 1395, Jan. 7, 1976, unless otherwise noted. SCOPE § 100b.15 Scope of subpart. (a) A State shall comply with §§ 100b.16-100b.19 (inclusive) with respect to each of the programs set forth in § 100b.10 under which any of the Federal funds are made available for assistance to local educational agencies through, or under the supervision of the State educational agency of that State. (20 U.S.C. 1232c (b) (1) (A)) (b) Sections 100b.28-100b.36 (inclusive) apply to all of the programs set forth in § 100b.10. (20 U.S.C. 1221e-3(a) (1)) REQUIREMENts Relating TO THE GENERAL § 100b.16 Implementation of application The purpose of §§ 100b.16-100b.19 is to implement section 434 (b) (1) and (2) of the General Education Provisions Act, as amended, which provides for the submission of general applications and annual program plans by States which desire to participate in one or more of the Federal programs referenced in § 100.b, 15(a). (20 U.S.C. 1232c (b) (1), (2)) § 100b.17 General application. (a) The general application of a State shall meet the requirements of section |