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part of its net earnings lawfully inures For may inure to the benefit of any individual.

(b) Proposals. Any proposal of an eligible applicant for the construction, equipment and operation of a residential school to provide vocational education which the Commissioner determines to be within the scope of section 14 of the Act will be considered for a grant award. § 105.26

Application for grants.

Any applicant eligible for a grant award under $105.25 may file an application on forms prescribed by the Commissioner. Such application shall contain sufficient information to permit its evaluation in accordance with the criteria set out in § 105.27, and shall be executed by an individual authorized to act for the applicant. Applications and requests for information shall be sent to:

Division of Vocational and Technical Education,

Office of Education,

U.S. Department of Health, Education, and Welfare,

Washington, D.C. 20202.

§ 105.27 Criteria for evaluation of applications.

All applications filed in accordance with § 105.26 will be evaluated by the Commissioner through such procedures as the Commissioner will establish. The Commissioner's evaluation will take into account among other pertinent factors:

(a) The extent to which the proposed school will serve large urban areas having substantial numbers of youth who have dropped out of school or are unemployed;

(b) The geographical area to be served both in terms of size and in terms of the geographical areas to be served by other possible grantees;

(c) The probable ability of the applicant to operate the proposed school successfully;

(d) The suitability of existing resources and related community services designated for use in the operation of the proposed school;

(e) The time within which the proposed school may be put into operation;

(f) The probable availability of nonFederal support for operation of the proposed school beyond the period of Federal support, should such operation seem feasible and desirable;

(g) The cost in relation to the costs of other proposals which are for programs of similar size and location;

(h) The merits of the project as a demonstration activity and the ability of the applicant, independently or with others, to make a continuing objective evaluation of the desirability and feasibility of the activity.

§ 105.28 Disposition.

On the basis of his evaluation of an application pursuant to § 105.27, the Commissioner will either (a) approve the application, (b) disapprove the application, or (c) defer action on the application for such reasons as lack of funds or a need for further evaluation. Any deferral or disapproval of an application shall not preclude its reconsideration or resubmission. The Commisstoner will notify the applicant in writing of the disposition of the application. If the Commissioner makes a grant, the grant award letter will include the approved budget and grant conditions. The applicant shall indicate acceptance of the proposed grant by having an authorized official sign a copy of the grant award letter and by returning such copy to:

Division of Vocational and Technical Education,

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Terms defined in Public Law 815, 81st Congress (64 Stat. 967), as amended, and Public Law 874, 81st Congress (64 Stat. 1100), as amended, and not defined in this section shall have the meaning given such terms in such public laws. As used in this part, the following terms shall have the meaning indicated in paragraphs (a) to (e) of this section:

(a) Commissioner. The "Commissioner" means the Commissioner of Education, Department of Health, Education, and Welfare.

(b) Public Law 815. "Public Law 815" means Public Law 815, 81st Congress (64 Stat. 967), as amended.

(c) Public Law 874. "Public Law 874" means Public Law 874, 81st Congress (64 Stat. 1100), as amended.

(d) Applicant. "Applicant" means a local educational agency which has filed an application under Public Law 815 or Public Law 874, and the regulations issued thereunder.

(e) Application. "Application" means a complete application under Public Law 815 or Public Law 874 as defined in the applicable regulations issued thereunder. [24 F.R. 3880, May 14, 1959]

§ 106.2

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 F.R. 6707, Oct. 22, 1953, as amended at 24 F.R. 3880, May 14, 1959]

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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.

§ 106.4 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 ap!plicant or by the Commissioner.

§ 106.5 Time and place of hearing.

Hearings on any matter included in § 106.2 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.

§ 106.6 Right to counsel.

In all proceedings under this part, the applicant and the Commissioner shall have the right to be represented by proper counsel.

§ 106.7 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 § 106.5, 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.

§ 106.8 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 au

thorized, 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. § 106.9 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 § 106.8, 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. § 106.10

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.

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112.9 General procedure if funds are inadequate to make all requested payments.

112.10 Determination of priorities among applications.

112.11

Prohibition against payment for religious worship or instruction.

112.12-112.15 [Reserved]

Subpart D-Retention of Records

112.16 Retention of records. 112.17-112.20 [Reserved]

Subpart E-Provisions not Exhaustive

112.21 Provisions not exhaustive of jurisdiction of Commissioner.

AUTHORITY: The provisions of this Part 112 issued under sec. 12, 72 Stat. 554, sec. 16, 79 Stat. 1158; 20 U.S.C. 642, 646.

SOURCE: The provisions of this Part 112 appear at 31 F.R. 4403, Mar. 15, 1966, unless otherwise noted.

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As used in this part

(a) "Act" means Public Law 815, 81st Congress, section 16 of which was added by the first section of Public Law 89-313 (79 Stat. 1158).

(b) "Commissioner" means the United States Commissioner of Education.

(c) "Applicant" means a local educational agency which has filed a project application for assistance under section 16 of the Act.

(d) "Completed application" means a properly executed project application on forms prescribed by the Commissioner for use in requesting school construction assistance under section 16 of the Act, together with all documents, amendments, supplements, and communications called for in support thereof.

(e) "Free public education" means education which is provided at public expense, under public supervision and direction, and without tuition charge, and which is provided as elementary or secondary school education in the applicable State. Elementary education may include kindergarten education meeting the above criteria.

(f) "Local educational agency" means a board of education or other legally constituted local school authority (including, where applicable, a State agency

which directly operates and maintains facilities for providing free public education) having exclusive administrative control and direction of free public education in a county, township, independent, or other school district located within a State. If the local education agency so defined does not have responsibility for providing school facilities and that responsibility is vested in a State, county, city or town agency, the term shall include such an agency, together with the agency having exclusive administrative control and direction of other phases of free public education.

(g) "Major disaster area" means an area which is determined, pursuant to section 2(a) of the Act of September 30, 1950 (42 U.S.C. 1855a (a)), to have suffered, after August 30, 1965, and prior to July 1, 1967, 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. A certification by the Governor of the State in which such an area is located of the need for disaster assistance in that area under Public Law 81-875 shall be deemed to be certification of need for disaster assistance under section 16 of Public Law 81-815 and an assurance of the expenditure of a reasonable amount of the funds of the government of that State, or of a political subdivision thereof, for purposes the same as, or similar to, those provided for in section 16 of Public Law 81-815 with respect to that catastrophe.

(h) "Project application" means a request, on forms prescribed by the Commissioner, for Federal financial assistance under section 16 of the Act for the cost of school facilities needed for the replacement or restoration of public elementary or secondary school facilities destroyed or seriously damaged as a result of a major disaster.

(i) "Replacement or restoration" of school facilities means the reconstruction of school facilities or the making of substantial structural repairs to school facilities but does not include the making of urgent repairs to protect the school facilities from further damage or deterioration or to render the school facilities immediately available for the providing of free public education.

(j) "School facilities" includes classrooms and related facilities; and equip

ment, machinery, and utilities necessary or appropriate as initial equipment, machinery, and utilities for school purposes. It does not include 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.

(k) "Seriously damaged" means that a school facility structure or a portion thereof has been rendered unusable, except for temporary use with emergency repairs, until substantial structural repairs are made.

(1) "State" means a State of the Union, the District of Columbia, Puerto Rico, Guam, the Virgin Islands or Wake Island.

Subpart B-Eligibility for Financial Assistance

§ 112.2 Eligibility for financial assist

ance.

(a) If, in accordance with section 16 (a) of the Act, the Commissioner finds (1) that a local educational agency is making provision for the conduct under public auspices and administration of educational programs in which provision is made for participation by children who were enrolled in private elementary and secondary schools which are in the school attendance area of such local educational agency and which had their operation disrupted or impaired by a major disaster, and (2) that that agency is making a reasonable tax effort and is exercising due diligence in availing itself of State and other financial assistance available to it but does not have available sufficient funds to provide the minimum school facilities needed for the replacement or restoration of school facilities which were destroyed or seriously damaged as a result of a major disaster, that agency is eligible to receive from the Commissioner the additional assistance under section 16 of the Act which is necessary to enable that agency to provide such facilities. If the Commissioner finds that funds will in the near future become available to the local educational agency specifically for such a purpose, the Federal financial assistance will, to the extent that such funds are to become so available, be in the form of a repayable advance under such terms and conditions as the Commissioner considers to be in the public interest under the circumstances.

(b) Federal financial assistance under section 16 of the Act will be limited to the amount deemed by the Commissioner to be necessary as additional assistance in order for the local educational agency to provide for the replacement or restoration of the school facilities destroyed or seriously damaged as a result of a major disaster. Such assistance will be provided only if the Commissioner, after consultation with the State and local educational agencies finds that the replacement or restoration of the school facilities would not be inconsistent with overall State plans with respect to the construction of school facilities.

(c) Federal financial assistance provided under section 16 of the Act as being necessary to enable the local educational agency to provide the needed school facilities will not exceed the total amount required to pay for the cost of construction incident to the replacement or restoration of school facilities destroyed or seriously damaged as a result of a disaster, less all amounts available to the applicant specifically for such a purpose from local, State, other Federal sources, and from the proceeds of insurance on the school facilities destroyed or damaged as a result of the major disaster.

(d) All unobligated or unencumbered funds which the Commissioner deems to have been set aside in the nature of an insurance reserve for the purpose of replacing or restoring school facilities of the applicant that are destroyed or seriously damaged may be considered as funds available for the replacement or restoration of school facilities destroyed or seriously damaged as a result of the major disaster. The proceeds of bonds that have been voted specifically for the replacement of a school facility which is one of the school facilities destroyed or seriously damaged as a result of the major disaster, will also be considered as available. If, however, such proceeds are not in fact immediately available, the assistance provided by the Commissioner will be in the form of an advance to be repaid from such proceeds when they are to become available in accordance with the normal scheduling of the floating of the approved bond issue as determined by the Commissioner.

(e) Federal assistance under section 16 of the Act will be authorized only to provide the minimum school facilities needed for the replacement or restoration of that portion of a building which was, at the time of the disaster, in use as a

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