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part of its net earnings lawfully inures or 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

(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 Educa

tion, Office of Education, U.S. Department of Health, Education, and

Welfare,
Washington, D.C. 20202.

to:

Division of Vocational and Technical Educa

tion, Office of Education, U.S. Department of Health, Education, and

Welfare, Washington, D.C. 20202. 8 105.27 Criteria for evaluation of ap

plications. All applications Alled 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;

PART 106—HEARINGS IN CONNEC

TION WITH SCHOOL CONSTRUC-
TION AND FINANCIAL ASSISTANCE
IN FEDERALLY IMPACTED AREAS

Sec. 106.1 Definitions. 106.2 Opportunity for hearing. 106.3 Procedure in requesting hearing. 106.4 Reconsideration after request or

order for hearing. 106.5 Time and place of hearing. 106.6 Right to counsel. 106.7 Procedures, evidence, and record. 106.8 Decisions and notices. 106.9 Decisions on record or review by

Commissioner. 106.10 Other determinations not affected

by this part. AUTHORITY: The provisions of this part 106 issued under secs. 208, 7, 64 Stat. 975, 1107; secs. 101, 201, 209, 1, 9, 64 Stat. 967,

1100, secs 301, 67 Stat. 522; 20 U.S.C. 681- reconsideration or by reconsideration by 645, 236-242, 244.

the Commissioner on his own motion, SOURCE: The provisions of this part 106

unless the time for filing such request appear at 18 F.R. 6707, Oct. 22, 1953, unless is extended in writing by the Commisotherwise noted.

sioner.

(c) In the event the Commissioner has § 106.1 Definitions.

reason to believe that further payments Terms defined in Public Law 815, 81st to an applicant under Public Law 815 Congress (64 Stat. 967), as amended, and should be withheld by reason of the failPublic Law 874, 81st Congress (64 Stat. ure of the applicant to comply with the 1100), as amended, and not defined in conditions of such law, he shall so notify this section shall have the meaning given the applicant. Such notice, a copy of such terms in such public laws. As used which shall likewise be sent to the State in this part, the following terms shall educational agency, shall either (1) adhave the meaning indicated in para- vise the applicant of the specific prographs (a) to (e) of this section:

vision under which the Commissioner's (a) Commissioner. The "Commis- action is taken and the basis for his sioner" means the Commissioner of Edu- belief and fix a date not less than 20 cation, Department of Health, Educa- days, nor more than 60 days, after the tion, and Welfare.

date of such notice within which the ap(b) Public Law 815. “Public Law plicant may request that the matter be 815” means Public Law 815, 81st Con- scheduled for hearing in due course; or gress (64 Stat. 967), as amended.

(2) advise the applicant that the matter (c) Public Law 874. "Public Law in question has been set down for hear874" means Public Law 874, 81st Con- ing at a stated place and time. The time gress (64 Stat. 1100), as amended.

and place so fixed shall be subject to (d) Applicant. “Applicant” means a change for cause. The failure of an local educational agency which has filed applicant without the consent of the an application under Public Law 815 or Commissioner to request a hearing under Public Law 874, and the regulations is- subparagraph (1) of this paragraph or to sued thereunder.

appear at a hearing for which a date has (e) Application. “Application" means been set, shall be deemed to be a waiver a complete application under Public Law of the right to a hearing under this sub815 or Public Law 874 as defined in the section and consent to the Commissioner applicable regulations issued thereunder. making a decision on the basis of such [24 F.R. 3880, May 14, 1959)

information as is available to him.

(18 F.R. 6707, Oct. 22, 1953, as amended at § 106.2 Opportunity for hearing.

24 F.R. 3880, May 14, 1959) (a) Any applicant whose application under Public Law 815 or Public Law 874

106.3 Procedure in requesting hearis disapproved by the Commissioner, or

ing. his delegatee, in whole or in part, or A request by an applicant for which is dissatisfied with the Commis- hearing in accordance with this part sioner's action, or failure to act (or that must be addressed to the Commissioner of his delegatee), upon its application and must clearly specify in writing the under such public laws shall be entitled issues of fact and law to be considered, to a hearing thereon.

and, where the applicant is not a State (b) A hearing shall be given to an agency, a copy of such request should applicant dissatisfied with an adverse ad- be furnished to the State educational ministrative action of the Commissioner agency by the applicant. (or of his delegatee) with respect to its

8 106.4 Reconsideration after request application only (1) if a written request

or order for hearing. for such a hearing with respect to such action is filed with the Commissioner

The request for a hearing, or the fact within 60 days of notice to the applicant

that any matter or issue has been schedof such action; and (2) if the action

uled for hearing, under this part, shall at issue is material to the determination not prejudice any request for reconsiderof the applicant's rights and is not com

ation of any determination made by the mitted wholly to the discretion of the Commissioner or his delegatee, but the Commissioner. The time within which pendency of any such request for reconsuch a request for hearing must be filed sideration shall not constitute a basis will not be extended by a request for upon which postponement of the hearing

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can be demanded as of right by the ap thorized, or certify the entire record inplicant or by the Commissioner.

cluding his recommended findings and § 106.5 Time and place of hearing.

proposed decision to the Commissioner

for a final decision, and written notice Hearings on any matter included in of such initial decision or certification $ 106.2 shall be held at the offices of the shall be mailed to the applicant. Where Office of Education in Washington, D.C., the initial decision is made by the hearat a time fixed by the Commissioner, ing officer, and in the absence of either unless the Commissioner determines that an appeal to the Commissioner or review the convenience of the applicant or of upon motion of the Commissioner within the Office of Education requires that time limits stated in this section, such another place be selected.

decision shall without further proceed§ 106.6 Right to counsel.

ings constitute the final decision of the

Commissioner. The applicant may withIn all proceedings under this part, the

in thirty days of the mailing of such noapplicant and the Commissioner shall

tice of initial decision request the Comhave the right to be represented by missioner to review it. The Commisproper counsel.

sioner may grant or deny such request 8 106.7 Procedures, evidence, and rec or may within forty-five days after the ord.

initial decision review it on his own mo

tion. Written notice of the Commis(a) The hearing officer shall conduct

sioner's action granting or denying & the hearing and shall issue such rules of procedure as are proper (and not in

request for review or of his determina

tion to review it on his own motion shall consistent with this part) relating to the conduct of the hearing, giving of

be mailed promptly to the applicant. notices subsequent to those provided for & 106.9 Decisions on record or review in $ 106.5, taking of testimony, exhibits, by Commissioner. arguments and briefs, requests for find

Whenever a record is certified to the ings, and other related matters. The

Commissioner for decision or the Comapplication in question and all relevant

missioner determines to review the deamendments and exhibits submitted

cision of another person pursuant to therewith shall be made a part of the

$ 106.8, or whenever the Commissioner hearing record. Both the Office of Edu.

conducts the hearing, the applicant shall cation and the applicant shall be entitled be given reasonable opportunity to file to introduce all relevant evidence on the with the Commissioner briefs or other issues as stated in the notice or request written statements of its contentions, for hearing or as determined by the hear

and the final decision of the Commising officer at the outset of or during the

sioner in such cases promptly shall be hearing.

given in writing to the applicant. (b) Technical rules of evidence shall not apply to hearings conducted pursu

§ 106.10 Other determinations not af. ant to this part, but rules or principles

fected by this part. designed to assure production of the most Nothing in this part shall be construed credible evidence available and to subject to bar the Commissioner reconsidering testimony to test by cross-examination any determination under Public Laws or by other means shall be applied by the 815 and 874 unless such determination hearing officer where reasonably neces has been the subject of a hearing under sary. All documents and other evidence

this part. offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts

PART 112-FINANCIAL ASSISTANCE and arguments advanced on either side

FOR CONSTRUCTION OF PUBLIC of the issues. A transcript shall be made ELEMENTARY AND SECONDARY of the oral evidence unless dispensed

SCHOOLS IN AREAS AFFECTED BY with by stipulation. All decisions shall be based upon the hearing record and

MAJOR DISASTER written findings shall be made.

Subpart A-Definitions 8 106.8 Decisions and notices.

Sec.

112.1 Definitions. If the hearing is held by a person other than the Commissioner, such person shall Subpart BEligibility for Financial Assistance either make an initial decision, if so au 112.2 Eligibility for financial assistance.

Sec.

which directly operates and maintains 112.3 Certification of payments.

facilities for providing free public edu112.4-112.7 (Reserved]

cation) having exclusive administrative Subpart C—Application for Financial Assistance control and direction of free public edu112.8 Applications.

cation in a county, township, independ112.9 General procedure if funds are inade

ent, or other school district located within quate to make all requested pay

a State. If the local education agency ments.

so defined does not have responsibility 112.10 Determination of priorities among for providing school facilities and that applications.

responsibility is vested in a State, county, 112.11 Prohibition against payment for re

city or town agency, the term shall inligious worship or instruction. 112.12-112.15 [Reserved]

clude such an agency, together with the

agency having exclusive administrative Subpart D-Retention of Records

control and direction of other phases of 112.16 Retention of records.

free public education. 112.17–112.20 (Reserved]

(g) "Major disaster area" means an

area which is determined, pursuant to Subpart E-Provisions not Exhaustive

section 2(a) of the Act of September 30, 112.21 Provisions not exhaustive of juris 1950 (42 U.S.C. 1855a (a)), to have sufdiction of Commissioner.

fered, after August 30, 1965, and prior AUTHORITY: The provisions of this part to July 1, 1967, a major disaster as a 112 issued under sec. 12, 72 Stat. 554, sec. 16, result of any flood, drought, fire, hurri79 Stat. 1158; 20 U.S.C. 642, 646.

cane, earthquake, storm, or other catasSOURCE: The provisions of this Part 112 ap

trophe which is or threatens to be of pear at 31 F.R. 4403, Mar. 15, 1966, unless sufficient severity and magnitude to otherwise noted.

warrant disaster assistance by the FedSubpart A-Definitions

eral Government. A certification by the

Governor of the State in which such an $ 112.1 Definitions.

area is located of the need for disaster As used in this part

assistance in that area under Public Law

81–875 shall be deemed to be certification (a) “Act” means Public Law 815, 81st

of need for disaster assistance under Congress, section 16 of which was added

section 16 of Public Law 81-815 and an by the first section of Public Law 89–313

assurance of the expenditure of a rea(79 Stat. 1158).

sonable amount of the funds of the gov(b) "Commissioner" means the United

ernment of that State, or of a political States Commissioner of Education.

subdivision thereof, for purposes the (c) “Applicant” means a local edu

same as, or similar to, those provided for cational agency which has filed a proj in section 16 of Public Law 81-815 with ect application for assistance under sec

respect to that catastrophe. tion 16 of the Act.

(h) “Project application" means a re(d) “Completed application" means a quest, on forms prescribed by the Comproperly executed project application on missioner, for Federal financial assistforms prescribed by the Commissioner ance under section 16 of the Act for the for use in requesting school construction cost of school facilities needed for the assistance under section 16 of the Act, replacement or restoration of public eletogether with all documents, amend

mentary or secondary school facilities ments, supplements, and communica destroyed or seriously damaged as a retions called for in support thereof.

sult of a major disaster. (e) "Free public education" means

(i) “Replacement or restoration" of education which is provided at public

school facilities means the reconstrucexpense, under public supervision and

tion of school facilities or the making direction, and without tuition charge, and

of substantial structural repairs to school which is provided as elementary or sec

facilities but does not include the makondary school education in the applicable State. Elementary education may

ing of urgent repairs to protect the school include kindergarten education meeting

facilities from further damage or dethe above criteria.

terioration or to render the school fa(f) “Local educational agency" means cilities immediately available for the pro& board of education or other legally viding of free public education. constituted local school authority (in (j) "School facilities" includes classcluding, where applicable, a State agency rooms and related facilities; and equip

ance.

ment, machinery, and utilities necessary (b) Federal financial assistance under or appropriate as initial equipment, ma- section 16 of the Act will be limited to the chinery, and utilities for school purposes. amount deemed by the Commissioner to It does not include athletic stadiums, or be necessary as additional assistance in structures or facilities intended primarily order for the local educational agency for athletic exhibitions, contests, or to provide for the replacement or restorgames or other events for which admis- ation of the school facilities destroyed or sion is to be charged to the general seriously damaged as a result of a major public.

disaster. Such assistance will be pro(k) “Seriously damaged" means that vided only if the Commissioner, after a school facility structure or a portion consultation with the State and local edthereof has been rendered unusable, ex- ucational agencies finds that the recept for temporary use with emergency placement or restoration of the school repairs, until substantial structural re- facilities would not be inconsistent with pairs are made.

overall State plans with respect to the (1) "State" means a State of the construction of school facilities. Union, the District of Columbia, Puerto (c) Federal financial assistance proRico, Guam, the Virgin Islands or Wake vided under section 16 of the Act as beIsland.

ing necessary to enable the local educa

tional agency to provide the needed Subpart B-Eligibility for Financial

school facilities will not exceed the total Assistance

amount required to pay for the cost of $112.2 Eligibility for financial assist

construction incident to the replacement or restoration of school facilities de

stroyed or seriously damaged as a result (a) If, in accordance with section 16

of a disaster, less all amounts available (a) of the Act, the Commissioner finds

to the applicant specifically for such a (1) that a local educational agency is

purpose from local, State, other Federal making provision for the conduct under

sources, and from the proceeds of insurpublic auspices and administration of

ance on the school facilities destroyed or educational programs in which provision

damaged as a result of the major disaster. is made for participation by children who

(d) All unobligated or unencumbered were enrolled in private elementary and

funds which the Commissioner deems to secondary schools which are in the school

have been set aside in the nature of an attendance area of such local educational

insurance reserve for the purpose of reagency and which had their operation

placing or restoring school facilities of disrupted or impaired by a major disaster, and (2) that that agency is making a

the applicant that are destroyed or seri

ously damaged may be considered as reasonable tax effort and is exercising

funds available for the replacement or due diligence in availing itself of State

restoration of school facilities destroyed and other financial assistance available

or seriously damaged as a result of the to it but does not have available sufi,

major disaster. The proceeds of bonds cient funds to provide the minimum

that have been voted specifically for the school facilities needed for the replace

replacement of a school facility which is ment or restoration of school facilities

one of the school facilities destroyed or which were destroyed or seriously dam

seriously damaged as a result of the maaged as a result of a major disaster, that

jor disaster, will also be considered as agency is ellgible to receive from the

available. If, however, such proceeds Commissioner the additional assistance

are not in fact immediately available, under section 16 of the Act which is

the assistance provided by the Commisnecessary to enable that agency to pro

sloner will be in the form of an advance vide such facilities. If the Commissioner

to be repaid from such proceeds when finds that funds will in the near future

they are to become available in accordbecome available to the local educational

ance with the normal scheduling of the agency specifically for such a purpose,

floating of the approved bond issue as the Federal financial assistance will, to

determined by the Commissioner. the extent that such funds are to become

(e) Federal assistance under section 16 so available, be in the form of a repay- of the Act will be authorized only to proable advance under such terms and con

vide the minimum school facilities ditions as the Commissioner considers needed for the replacement or restoration to be in the public interest under the of that portion of a building which was, circumstances.

at the time of the disaster, in use as a

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