# EDGAR - Part 76 Contents and Subpart A (General)

(March 5, 2001)

TITLE 34\--EDUCATION

PART 76\--STATE-ADMINISTERED PROGRAMS

Subpart A\--General

Regulations that Apply to State-Administered Programs

Sec.

76.1 Programs to which part 76 applies.

76.2 Exceptions in program regulations to part 76.

Eligibility for a Grant or Subgrant

76.50 Statutes determine eligibility and whether subgrants are made.

76.51 A State distributes funds by formula or competition.

Subpart B\--How a State Applies for a Grant

State Plans and Applications

76.100 Effect of this subpart.

76.101 The general State application.

76.102 Definition of \`\`State plan\'\' for part 76.

76.103 Multi-year State plans.

76.104 A State shall include certain certifications in its State plan.

76.106 State documents are public information.

Consolidated Grant Applications for Insular Areas

76.125 What is the purpose of these regulations?

76.126 What regulations apply to the consolidated grant applications

for insular areas?

76.127 What is the purpose of a consolidated grant?

76.128 What is a consolidated grant?

76.129 How does a consolidated grant work?

76.130 How are consolidated grants made?

76.131 How does an insular area apply for a consolidated grant?

76.132 What assurances must be in a consolidated grant application?

76.133 What is the reallocation authority?

76.134 What is the relationship between consolidated and non-

consolidated grants?

76.135 Are there any requirements for matching funds?

76.136 Under what programs may consolidated grant funds be spent?

76.137 How may carryover funds be used under the consolidated grant

application?

Amendments

76.140 Amendments to a State plan.

76.141 An amendment requires the same procedures as the document being

amended.

76.142 An amendment is approved on the same basis as the document being

amended.

Subpart C\--How a Grant Is Made to a State

Approval or Disapproval by the Secretary

76.201 A State plan must meet all statutory and regulatory

requirements.

76.202 Opportunity for a hearing before a State plan is disapproved.

76.235 The notification of grant award.

Allotments and Reallotments of Grant Funds

76.260 Allotments are made under program statute or regulations.

76.261 Realloted funds are part of a State\'s grant.

Subpart D\--How To Apply to the State for a Subgrant

76.300 Contact the State for procedures to follow.

76.301 Local educational agency general application.

76.302 The notice to the subgrantee.

76.303 Joint applications and projects.

76.304 Subgrantee shall make subgrant application available to the

public.

Subpart E\--How a Subgrant Is Made to an Applicant

76.400 State procedures for reviewing an application.

76.401 Disapproval of an application\--opportunity for a hearing.

Subpart F\--What Conditions Must Be Met by the State and Its

Subgrantees?

Nondiscrimination

76.500 Federal statutes and regulations on nondiscrimination.

Allowable costs

76.530 General cost principles.

76.532 Use of funds for religion prohibited.

76.533 Acquisition of real property; construction.

76.534 Use of tuition and fees restricted.

Indirect Cost Rates

76.560 General indirect cost rates; exceptions.

76.561 Approval of indirect cost rates.

76.563 Restricted indirect cost rate\--programs covered.

76.564 Restricted indirect cost rate\--formula.

76.565 General management costs\--restricted rate.

76.566 Fixed costs\--restricted rate.

76.567 Other expenditures\--restricted rate.

76.568 Occupancy and space maintenance costs\--restricted rate.

76.569 Using the restricted indirect cost rate.

76.580 Coordination with other activities.

Evaluation

76.591 Federal evaluation\--cooperation by a grantee.

76.592 Federal evaluation\--satisfying requirement for State or

subgrantee evaluation.

Construction

76.600 Where to find construction regulations.

Participation of Students Enrolled in Private Schools

76.650 Private schools; purpose of Secs. 76.651-76.662.

76.651 Responsibility of a State and a subgrantee.

76.652 Consultation with representatives of private school students.

76.653 Needs, number of students, and types of services.

76.654 Benefits for private school students.

76.655 Level of expenditures for students enrolled in private schools.

76.656 Information in an application for a subgrant.

76.657 Separate classes prohibited.

76.658 Funds not to benefit a private school.

76.659 Use of public school personnel.

76.660 Use of private school personnel.

76.661 Equipment and supplies.

76.662 Construction.

Procedures for Bypass

76.670 Applicability and filing requirements.

76.671 Notice by the Secretary.

76.672 Bypass procedures.

76.673 Appointment and functions of a hearing officer.

76.674 Hearing procedures.

76.675 Posthearing procedures.

76.676 Judicial review of a bypass action.

76.677 Continuation of a bypass.

Other Requirements for Certain Programs

76.681 Protection of human subjects.

76.682 Treatment of animals.

76.683 Health or safety standards for facilities.

Subpart G\--What Are the Administrative Responsibilities of the

State and Its Subgrantees?

General Administrative Responsibilities

76.700 Compliance with statutes, regulations, State plan, and

applications.

76.701 The State or subgrantee administers or supervises each project.

76.702 Fiscal control and fund accounting procedures.

76.703 When a State may begin to obligate funds.

76.704 New State plan requirements that must be addressed in a State

plan.

76.707 When obligations are made.

76.708 When certain subgrantees may begin to obligate funds.

76.709 Funds may be obligated during a \`\`carryover period.\'\'

76.710 Obligations made during a carryover period are subject to

current statutes, regulations, and applications.

76.711 Requesting funds by CFDA number.

Reports

76.720 Financial and performance reports by a State.

76.722 A subgrantee makes reports required by the State.

Records

76.730 Records related to grant funds.

76.731 Records related to compliance.

Privacy

76.740 Protection of and access to student records; student rights in

research, experimental programs, and testing.

Use of Funds by States and Subgrantees

76.760 More than one program may assist a single activity.

76.761 Federal funds may pay 100 percent of cost.

State Administrative Responsibilities

76.770 A State shall have procedures to ensure compliance.

76.783 State educational agency action\--subgrantee\'s opportunity for a

hearing.

Subpart H\--How Does a State or Local Educational Agency Allocate Funds

to Charter Schools?

General

76.785 What is the purpose of this subpart?

76.786 What entities are governed by this subpart?

76.787 What definitions apply to this subpart?

Responsibilities for Notice and Information

76.788 What are a charter school LEA\'s responsibilities under this

subpart?

76.789 What are an SEA\'s responsibilities under this subpart?

Allocation of Funds by State Educational Agencies

76.791 On what basis does an SEA determine whether a charter school LEA

that opens or significantly expands its enrollment is eligible

to receive funds under a covered program?

76.792 How does an SEA allocate funds to eligible charter school LEAs

under a covered program in which the SEA awards subgrants on a

formula basis?

76.793 When is an SEA required to allocate funds to a charter school

LEA under this subpart?

76.794 How does an SEA allocate funds to charter school LEAs under a

covered program in which the SEA awards subgrants on a

discretionary basis?

Adjustments

76.796 What are the consequences of an SEA allocating more or fewer

funds to a charter school LEA under a covered program than the

amount for which the charter school LEA is eligible when the

charter school LEA actually opens or significantly expands its

enrollment?

76.797 When is an SEA required to make adjustments to allocations under

this subpart?

Applicability of This Subpart to Local Educational Agencies

76.799 Do the requirements in this subpart apply to LEAs?

Subpart I\--What Procedures Does the Secretary Use To Get Compliance?

76.900 Waiver of regulations prohibited.

76.901 Office of Administrative Law Judges.

76.902 Judicial review.

76.910 Cooperation with audits.

Authority: 20 U.S.C. 1221e-3, 3474, 6511(a), and 8065a, unless

otherwise noted.

Source: 45 FR 22517, Apr. 3, 1980, unless otherwise noted.

Redesignated at 45 FR 77368, Nov. 21, 1980.

Subpart A\--General

Regulations That Apply to State-Administered Programs

Sec. 76.1 Programs to which part 76 applies.

\(a\) The regulations in part 76 apply to each State-administered

program of the Department.

\(b\) If a State formula grant program does not have implementing

regulations, the Secretary implements the program under the authorizing

statute and, to the extent consistent with the authorizing statute,

under the General Education Provisions Act and the regulations in this

part. For the purposes of this part, the term State formula grant

program means a program whose authorizing statute or implementing

regulations provide a formula for allocating program funds among

eligible States.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 84059, Dec. 22, 1980; 50 FR 29330, July 18, 1985; 52

FR 27804, July 24, 1987; 54 FR 21776, May 19, 1989; 55 FR 14816, Apr.

18, 1990\]

Sec. 76.2 Exceptions in program regulations to part 76.

If a program has regulations that are not consistent with part 76,

the implementing regulations for that program identify the sections of

part 76 that do not apply.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 54 FR 21776, May 19, 1989\]

Eligibility for a Grant or Subgrant

Sec. 76.50 Statutes determine eligibility and whether subgrants are

made.

\(a\) Under a program covered by this part, the Secretary makes a

grant:

\(1\) To the State agency designated by the authorizing statute for

the program; or

\(2\) To the State agency designated by the State in accordance with

the authorizing statute.

\(b\) The authorizing statute determines the extent to which a State

may:

\(1\) Use grant funds directly; and

\(2\) Make subgrants to eligible applicants.

\(c\) The regulations in part 76 on subgrants apply to a program only

if subgrants are authorized under that program.

\(d\) The authorizing statute determines the eligibility of an

applicant for a subgrant.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 52 FR 27804, July 24, 1987; 54 FR 21776, May 19, 1989\]

Sec. 76.51 A State distributes funds by formula or competition.

If a program statute authorizes a State to make subgrants, the

statute:

\(a\) Requires the State to use a formula to distribute funds;

\(b\) Gives the State discretion to select subgrantees through a

competition among the applicants or through some other procedure; or

\(c\) Allows some combination of these procedures.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 54 FR 21776, May 19, 1989\]

# EDGAR - Part 76 Subpart B

Subpart B\--How a State Applies for a Grant

State Plans and Applications

Sec. 76.100 Effect of this subpart.

This subpart establishes general requirements that a State must meet

to apply for a grant under a program covered by this part. Additional

requirements are in the authorizing statute and the implementing

regulations for the program.

(Authority: 20 U.S.C. 1221e-3 and 3474)

\[52 FR 27804, July 24, 1987\]

Sec. 76.101 The general State application.

A State that makes subgrants to local educational agencies under a

program subject to this part shall have on file with the Secretary a

general application that meets the requirements of section 441 of the

General Education Provisions Act.

(Authority: 20 U.S.C. 1221e-3, 1232d, and 3474)

\[52 FR 27804, July 24, 1987, as amended at 60 FR 46493, Sept. 6, 1995\]

Sec. 76.102 Definition of \`\`State plan\'\' for part 76.

As used in this part, State plan means any of the following

documents:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Principal

Document Program Authorizing statute Office

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

State plan\...\..... Assistance to States Part B (except section OSERS

for Education of 619), Individuals with

Handicapped Children. Disabilities Education

Act (20 U.S.C.

1411 - 1420).

Application\...\.... Preschool Grants\..... Section 619, Individuals
OSERS

with Disabilities

Education Act (20

U.S.C. 1419).

Application\...\...\.... Handicapped Infants Part H, Individuals OSERS

and Toddlers. with Disabilities

Education Act (20

U.S.C. 1471 - 1485).

Application or Client Assistance Section 112, Rehabil- OSERS

written request for Program. itation Act of 1973

assistance. (29 U.S.C. 732).

Application\...\...\.... Removal of Section 607, OSERS

Architectural Individuals with

Barriers to the Disabilities

Handicapped Program. Education Act (20

U.S.C. 1406).

State plan\...\...\..... State Vocational Title I, Parts A - OSERS

Rehabilitation C, Rehabilitation

Services Program. Act of 1973 (29

U.S.C. 720 - 741).

State plan supplement State Supported Title VI, Part C, OSERS

Employment Services Rehabilitation Act

Program. of 1973 (29 U.S.C.

795j - 795r).

State plan\...\...\..... State Independent Title VII, Part A, OSERS

Living Services Rehabilitation Act

Program. of 1973 (29 U.S.C.

796 - 796d).

State plan\...\...\..... State Vocational Title I, Part B, OVAE

Education Program. Carl D. Perkins

Vocational

Education Act (20

U.S.C. 2321 - 2325).

State plan and State-Administered Section 341, Adult OVAE

application. Adult Education Education Act (20

Program. U.S.C. 1206).

State plan\...\...\..... Even Start Family Title I, Chapter 1, OESE

Literacy Program. Part B of the

Elementary and

Secondary Education

Act of 1965 (20

U.S.C. 2741 - 2749).

State application\.... State Grants for Title II, Part A, OESE

Strengthening Elementary and

Instruction in Secondary Education

Mathematics and Act of 1965, as

Science. amended (20 U.S.C.

2981 - 2993).

State application\.... Federal, State and Title I, Chapter 2, OESE

Local Partnership Elementary and

for Educational Secondary Education

Improvement. Act of 1965, as

amended (20 U.S.C.

2911 - 2952 and

2971 - 2976).

State plan or Migrant Education Sections 1201, 1202, OESE

application. Program. Chapter 1, Title I,

Elementary and

Secondary Education

Act of 1965, as

amended (20 U.S.C.

2781 and 2782).

Application\...\...\.... State Student Section 415C, Higher OPE

Incentive Grant Education Act of

Program. 1965 (20 U.S.C.

1070c - 2).

Application\...\...\.... Paul Douglas Teacher Section 553, Higher OPE

Scholarship Program. Education Act of

1965 (20 U.S.C.

1111b).

Basic State plan, The Library Services Library Services and OERI

long-range program, and Construction Act Construction Act

and annual program. State-Administered (20 U.S.C. 351 -

Program. 355e - 3).

Application\...\...\.... Emergency Immigrant Emergency Immigrant OBEMLA

Education Program. Education Act (20

U.S.C. 3121 - 3130).

Application\...\...\.... Transition Program Section 412(d) OBEMLA

for Refugee Children. Immigration and

Naturalization Act

(8 U.S.C. 1522 (d)).

Any document that the Any State- Section 408(a)(1), Dept-wide

authorizing statute administered program General Education

for a State- without implementing Provisions Act and

administered program regulations. Section 414,

requires a State to Department of

submit to receive Education

funds. Organization Act

(20 U.S.C. 1221e -

3(a)(1) and 3474).

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Authority: 20 U.S.C. 1221e-3 and 3474)

\[57 FR 30340, July 8, 1992\]

Sec. 76.103 Multi-year State plans.

\(a\) Beginning with fiscal year 1996, each State plan will be

effective for a period of more than one fiscal year, to be determined by

the Secretary or by regulations.

\(b\) If the Secretary determines that the multi-year State plans

under a program should be submitted by the States on a staggered

schedule, the Secretary may require groups of States to submit or

resubmit their plans in different years.

\(c\) This section does not apply to:

\(1\) The annual accountability report under part A of title I of the

Vocational Education Act;

\(2\) The annual programs under the Library Services and Construction

Act;

\(3\) The application under sections 141-143 of the Elementary and

Secondary Education Act; and

\(4\) The State application under section 209 of title II of the

Education for Economic Security Act.

\(d\) A State may submit an annual State plan under the Vocational

Education Act. If a State submits an annual plan under that program,

this section does not apply to that plan.

Note: This section is based on a provision in the General Education

Provisions Act (GEPA). Section 427 of the Department of Education

Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the

extent inconsistent with the DEOA, the GEPA \`\`shall apply to functions

transferred by this Act to the extent applicable on the day preceding

the effective date of this Act.\'\' Although standardized nomenclature
is

used in this section to reflect the creation of the Department of

Education, there is no intent to extend the coverage of the GEPA beyond

that authorized under section 427 or other applicable law.

(Authority: 20 U.S.C. 1231g(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 86296, Dec. 30, 1980; 50 FR 43545, Oct. 25, 1985; 60

FR 46493, Sept. 6, 1995\]

Sec. 76.104 A State shall include certain certifications in its State

plan.

\(a\) A State shall include the following certifications in each State

plan:

\(1\) That the plan is submitted by the State agency that is eligible

to submit the plan.

\(2\) That the State agency has authority under State law to perform

the functions of the State under the program.

\(3\) That the State legally may carry out each provision of the plan.

\(4\) That all provisions of the plan are consistent with State law.

\(5\) That a State officer, specified by title in the certification,

has authority under State law to receive, hold, and disburse Federal
funds

made available under the plan.

\(6\) That the State officer who submits the plan, specified by title

in the certification, has authority to submit the plan.

\(7\) That the agency that submits the plan has adopted or otherwise

formally approved the plan.

\(8\) That the plan is the basis for State operation and

administration of the program.

\(b\) \[Reserved\]

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.106 State documents are public information.

A State shall make the following documents available for public

inspection:

\(a\) All State plans and related official materials.

\(b\) All approved subgrant applications.

\(c\) All documents that the Secretary transmits to the State

regarding a program.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Consolidated Grant Applications for Insular Areas

Authority: Title V, Pub. L. 95-134, 91 Stat. 1159 (48 U.S.C. 1469a).

Sec. 76.125 What is the purpose of these regulations?

\(a\) Sections 76.125 through 76.137 of this part contain requirements

for the submission of an application by an Insular Area for the

consolidation of two or more grants under the programs described in

paragraph (c) of this section.

\(b\) For the purpose of Secs. 76.125-76.137 of this part the term

Insular Area means the Virgin Islands, Guam, American Samoa, the Trust

Territory of the Pacific Islands, or the Commonwealth of the Northern

Mariana Islands.

\(c\) The Secretary may make an annual consolidated grant to assist an

Insular Area in carrying out one or more State-administered formula

grant programs of the Department.

(Authority: 20 U.S.C. 1221e-3 and 3474)

\[47 FR 17421, Apr. 22, 1982, as amended at 54 FR 21776, May 19, 1989;
57

FR 30341, July 8, 1992\]

Sec. 76.126 What regulations apply to the consolidated grant

applications for insular areas?

The following regulations apply to those programs included in a

consolidated grant:

\(a\) The regulations in Secs. 76.125 through 76.137; and

\(b\) The regulations that apply to each specific program included in

a consolidated grant for which funds are used.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.127 What is the purpose of a consolidated grant?

An Insular Area may apply for a consolidated grant for two or more

of the programs listed in Sec. 76.125(c). This procedure is intended to:

\(a\) Simplify the application and reporting procedures that would

otherwise apply for each of the programs included in the consolidated

grant; and

\(b\) Provide the Insular Area with flexibility in allocating the

funds under the consolidated grant to achieve any of the purposes to be

served by the programs that are consolidated.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.128 What is a consolidated grant?

A consolidated grant is a grant to an Insular Area for any two or

more of the programs listed in Sec. 76.125(c). The amount of the

consolidated grant is the sum of the allocations the Insular Area

receives under each of the programs included in the consolidated grant

if there had been no consolidation.

Example. Assume the Virgin Islands applies for a consolidated grant

that includes programs under the Adult Education Act, Vocational

Education Act, and Chapter 1 of the Education Consolidation and

Improvement Act. If the Virgin Islands\' allocation under the formula
for

each of these three programs is \$150,000; the total consolidated grant

to the Virgin Islands would be \$450,000.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.129 How does a consolidated grant work?

\(a\) An Insular Area shall use the funds it receives under a

consolidated grant to carry out, in its jurisdiction, one or more of the

programs included in the grant.

Example. Assume that Guam applies for a consolidated grant under the

Vocational Education Act, the Handicapped Preschool and School Programs-

Incentive Grants, and the Adult Education Act and that the sum of the

allocations under these programs is \$700,000. Guam may choose to

allocate this \$700,000 among all of the programs authorized under the

three programs. Alternatively, it may choose to allocate the entire

\$700,000 to one or two of the programs; for example, the Adult
Education

Act Program.

\(b\) An Insular Area shall comply with the statutory and regulatory

requirements that apply to each program under which funds from the

consolidated grant are expended.

Example. Assume that American Samoa uses part of the funds under a

consolidated grant for the State program under the Adult Education Act.

American Samoa need not submit to the Secretary a State plan that

requires policies and procedures to assure all students equal access to

adult education programs. However, in carrying out the program, American

Samoa must meet and be able to demonstrate compliance with this equal

access requirement.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.130 How are consolidated grants made?

\(a\) The Secretary annually makes a single consolidated grant to each

Insular Area that meets the requirements of Secs. 76.125 through 76.137

and each program under which the grant funds are to be used and

administered.

\(b\) The Secretary may decide that one or more programs cannot be

included in the consolidated grant if the Secretary determines that the

Insular Area failed to meet the program objectives stated in its plan

for the previous fiscal year in which it carried out the programs.

\(c\) Under a consolidated grant, an Insular Area may use a single

advisory council for any or all of the programs that require an advisory

council.

\(d\) Although Pub. L. 95-134 authorizies the Secretary to consolidate

grant funds that the Department awards to an Insular Area, it does not

confer eligibility for any grant funds. The eligibility of a particular

Insular Area to receive grant funds under a Federal education program is

determined under the statute and regulations for that program.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.131 How does an insular area apply for a consolidated grant?

\(a\) An Insular Area that desires to apply for a grant consolidating

two or more programs listed in Sec. 76.125(c) shall submit to the

Secretary an application that:

\(1\) Contains the assurances in Sec. 76.132; and

\(2\) Meets the application requirements in paragraph (c) of this

section.

\(b\) The submission of an application that contains these

requirements and assurances takes the place of a separate State plan or

other similar document required by this part or by the authorizing

statutes and regulations for programs included in the consolidated

grant.

\(c\) An Insular Area shall include in its consolidated grant

application a program plan that:

\(1\) Contains a list of the programs in Sec. 76.125(c) to be included

in the consolidated grant;

\(2\) Describes the program or programs in Sec. 76.125(c) under which

the consolidated grant funds will be used and administered;

\(3\) Describes the goals, objectives, activities, and the means of

evaluating program outcomes for the programs for which the Insular Area

will use the funds received under the consolidated grant during the

fiscal year for which it submits the application, including needs of the

population that will be met by the consolidation of funds; and

\(4\) Contains a budget that includes a description of the allocation

of funds\--including any anticipated carryover funds of the program in

the consolidated grant from the preceding year\--among the programs to
be

included in the consolidated grant.

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

1880-0513)

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982, as amended at 53 FR 49143, Dec. 6, 1988\]

Sec. 76.132 What assurances must be in a consolidated grant

application?

\(a\) An Insular Area shall include in its consolidated grant

application assurances to the Secretary that it will:

\(1\) Follow policies and use administrative practices that will

insure that non-Federal funds will not be supplanted by Federal funds

made available under the authority of the programs in the consolidated

grant;

\(2\) Comply with the requirements (except those relating to the

submission of State plans or similar documents) in the authorizing

statutes and implementing regulations for the programs under which funds

are to be used and administered, (except requirements for matching

funds);

\(3\) Provide for proper and efficient administration of funds in

accordance with the authorizing statutes and implementing regulations

for those programs under which funds are to be used and administered;

\(4\) Provide for fiscal control and fund accounting procedures to

assure proper disbursement of, and accounting for, Federal funds

received under the consolidated grant;

\(5\) Submit an annual report to the Secretary containing information

covering the program or programs for which the grant is used and

administered, including the financial and program performance

information required under 34 CFR 74.51-74.52 and 34 CFR 80.40-80.41.

\(6\) Provide that funds received under the consolidated grant will be

under control of, and that title to property acquired with these funds

will be in, a public agency, institution, or organization. The public

agency shall administer these funds and property;

\(7\) Keep records, including a copy of the State Plan or application

document under which funds are to be spent, which show how the funds

received under the consolidated grant have been spent.

\(8\) Adopt and use methods of monitoring and providing technical

assistance to any agencies, organizations, or institutions that carry

out the programs under the consolidated grant and enforce any

obligations imposed on them under the applicable statutes and

regulations.

\(9\) Evaluate the effectiveness of these programs in meeting the

purposes and objectives in the authorizing statutes under which program

funds are used and administered;

\(10\) Conduct evaluations of these programs at intervals and in

accordance with procedures the Secretary may prescribe; and

\(11\) Provide appropriate opportunities for participation by local

agencies, representatives of the groups affected by the programs, and

other interested institutions, organizations, and individuals in

planning and operating the programs.

\(b\) These assurances remain in effect for the duration of the

programs they cover.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982, as amended at 64 FR 50392, Sept. 16,
1999\]

Sec. 76.133 What is the reallocation authority?

\(a\) After an Insular Area receives a consolidated grant, it may

reallocate the funds in a manner different from the allocation described

in its consolidated grant application. However, the funds cannot be used

for purposes that are not authorized under the programs in the

consolidated grant under which funds are to be used and administered.

\(b\) If an Insular Area decides to reallocate the funds it receives

under a consolidated grant, it shall notify the Secretary by amending

its original application to include an update of the information

required under Sec. 76.131.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.134 What is the relationship between consolidated and non-

consolidated grants?

\(a\) An Insular Area may request that any number of programs in

Sec. 76.125(c) be included in its consolidated grant and may apply

separately for assistance under any other programs listed in

Sec. 76.125(c) for which it is eligible.

\(b\) Those programs that an Insular Area decides to exclude from

consolidation\--for which it must submit separate plans or
applications\--

are implemented in accordance with the applicable program statutes and

regulations. The excluded programs are not subject to the provisions for

allocation of funds among programs in a consolidated grant.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.135 Are there any requirements for matching funds?

The Secretary waives all requirements for matching funds for those

programs that are consolidated by an Insular Area in a consolidated

grant application.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982\]

Sec. 76.136 Under what programs may consolidated grant funds be spent?

Insular Areas may only use and administer funds under programs

described in Sec. 76.125(c) during a fiscal year for which the Insular

Area is entitled to receive funds under an appropriation for that

program.

(Authority: 48 U.S.C. 1469a)

\[47 FR 17421, Apr. 22, 1982, as amended at 57 FR 30341, July 8, 1992\]

Sec. 76.137 How may carryover funds be used under the consolidated

grant application?

Any funds under any applicable program which are available for

obligation and expenditure in the year succeeding the fiscal year for

which they are appropriated must be obligated and expended in accordance

with the consolidated grant application submitted by the Insular Area

for that program for the succeeding fiscal year.

(Authority: 20 U.S.C. 1225(b); 48 U.S.C. 1469a)

Amendments

Sec. 76.140 Amendments to a State plan.

\(a\) If the Secretary determines that an amendment to a State plan is

essential during the effective period of the plan, the State shall make

the amendment.

\(b\) A State shall also amend a State plan if there is a significant

and relevant change in:

\(1\) The information or the assurances in the plan;

\(2\) The administration or operation of the plan; or

\(3\) The organization, policies, or operations of the State agency

that received the grant, if the change materially affects the

information or assurances in the plan.

(Authority: 20 U.S.C. 1221e-3, 1231g(a), and 3474)

Sec. 76.141 An amendment requires the same procedures as the document

being amended.

If a State amends a State plan under Sec. 76.140, the State shall

use the same procedures as those it must use to prepare and submit a

State plan.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.142 An amendment is approved on the same basis as the document

being amended.

The Secretary uses the same procedures to approve an amendment to a

State plan\--or any other document a State submits\--as the Secretary
uses

to approve the original document.

(Authority: 20 U.S.C. 1221e-3 and 3474)

# EDGAR - Part 76 Subpart C

Subpart C\--How a Grant Is Made to a State

Approval or Disapproval by the Secretary

Sec. 76.201 A State plan must meet all statutory and regulatory

requirements.

The Secretary approves a State plan if it meets the requirements of

the Federal statutes and regulations that apply to the plan.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.202 Opportunity for a hearing before a State plan is

disapproved.

The Secretary may disapprove a State plan only after:

\(a\) Notifying the State;

\(b\) Offering the State a reasonable opportunity for a hearing; and

\(c\) Holding the hearing, if requested by the State.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.235 The notification of grant award.

\(a\) To make a grant to a State, the Secretary issues and sends to

the State a notification of grant award.

\(b\) The notification of grant award tells the amount of the grant

and provides other information about the grant.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Allotments and Reallotments of Grant Funds

Sec. 76.260 Allotments are made under program statute or regulations.

\(a\) The Secretary allots program funds to a State in accordance with

the authorizing statute or implementing regulations for the program.

\(b\) Any reallotment to other States will be made by the Secretary in

accordance with the authorizing statute or implementing regulations for

that program.

(Authority: 20 U.S.C. 3474(a))

\[50 FR 29330, July 18, 1985\]

Sec. 76.261 Reallotted funds are part of a State\'s grant.

Funds that a State receives as a result of a reallotment are part of

the State\'s grant for the appropriate fiscal year. However, the

Secretary does not consider a reallotment in determining the maximum or

minimum amount to which a State is entitled for a following fiscal year.

(Authority: 20 U.S.C. 1221e-3 and 3474)

# EDGAR - Part 76 Subpart D

Subpart D\--How To Apply to the State for a Subgrant

Sec. 76.300 Contact the State for procedures to follow.

An applicant for a subgrant can find out the procedures it must

follow by contacting the State agency that administers the program.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Cross reference: See subparts E and G of this part for the general

responsibilities of the State regarding applications for subgrants.

Sec. 76.301 Local educational agency general application.

A local educational agency that applies for a subgrant under a

program subject to this part shall have on file with the State a general

application that meets the requirements of Section 442 of the General

Education Provisions Act.

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

1880-0513)

(Authority: 20 U.S.C. 1221e-3, 1232d, and 3474)

\[52 FR 27804, July 24, 1987, as amended at 53 FR 49143, Dec. 6, 1988;
60

FR 46493, Sept. 6, 1995\]

Sec. 76.302 The notice to the subgrantee.

A State shall notify a subgrantee in writing of:

\(a\) The amount of the subgrant;

\(b\) The period during which the subgrantee may obligate the funds;

and

\(c\) The Federal requirements that apply to the subgrant.

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

1880-0513)

(Authority: 20 U.S.C. 1221e-3 and 3474)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 53 FR 49143, Dec. 6, 1988\]

Sec. 76.303 Joint applications and projects.

\(a\) Two or more eligible parties may submit a joint application for

a subgrant.

\(b\) If the State must use a formula to distribute subgrant funds

(see Sec. 76.51), the State may not make a subgrant that exceeds the sum

of the entitlements of the separate subgrantees.

\(c\) If the State funds the application, each subgrantee shall:

\(1\) Carry out the activities that the subgrantee agreed to carry

out; and

\(2\) Use the funds in accordance with Federal requirements.

\(d\) Each subgrantee shall use an accounting system that permits

identification of the costs paid for under its subgrant.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.304 Subgrantee shall make subgrant application available to the

public.

A subgrantee shall make any application, evaluation, periodic

program plan, or report relating to each program available for public

inspection.

(Authority: 20 U.S.C. 1221e-3, 1232e, and 3474)

# EDGAR - Part 76 Subpart E

Subpart E\--How a Subgrant Is Made to an Applicant

Sec. 76.400 State procedures for reviewing an application.

A State that receives an application for a subgrant shall take the

following steps:

\(a\) Review. The State shall review the application.

\(b\) Approval\--entitlement programs. The State shall approve an

application if:

\(1\) The application is submitted by an applicant that is entitled to

receive a subgrant under the program; and

\(2\) The applicant meets the requirements of the Federal statutes and

regulations that apply to the program.

\(c\) Approval\--discretionary programs. The State may approve an

application if:

\(1\) The application is submitted by an eligible applicant under a

program in which the State has the discretion to select subgrantees;

\(2\) The applicant meets the requirements of the Federal statutes and

regulations that apply to the program; and

\(3\) The State determines that the project should be funded under the

authorizing statute and implementing regulations for the program.

\(d\) Disapproval\--entitlement and discretionary programs. If an

application does not meet the requirements of the Federal statutes and

regulations that apply to a program, the State shall not approve the

application.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.401 Disapproval of an application\--opportunity for a hearing.

\(a\) State agency hearing before disapproval. Under the programs

listed in the chart below, the State agency that administers the program

shall provide an applicant with notice and an opportunity for a hearing

before it may disapprove the application.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Implementing

regulations

Program Authorizing statute Title 34 CFR

Part

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Chapter 1, Program in Local Title I, Chapter 1, 200

Educational Agencies. Elementary and

Secondary Education

Act of 1965, as

amended (20 U.S.C.

2701-2731, 2821-2838,

2851-2854, and 2891-

2901).

Chapter 1, Program for Neglected Title 1, Chapter 1, 203

and Delinquent Children. Elementary and

Secondary Education

Act of 1965, as

amended (20 U.S.C.

2801-2804).

State Grants for Strengthening Title II, Part A, 208

Instruction in Mathematics and Elementary and

Science. Secondary Education

Act of 1965, as

amended (20 U.S.C.

2981-2993).

Federal, State, and Local Title I, Chapter 2, 298

Partnership for Educational Elementary and

Improvement. Secondary Education

Act of 1965, as

amended (20 U.S.C.

2911-2952 and 2971-

2976).

Assistance to States for Education Part B, Individuals 300

of Handicapped Children. with Disabilities

Education Act (except

Section 619) (20

U.S.C. 1411-1420).

Preschool Grants\...\...\...\...\...\... Section 619, 301

Individuals with

Disabilities

Education Act (20

U.S.C. 1419).

Chapter 1, State-Operated or Title 1, Chapter 1, 302

Supported Programs for Elementary and

Handicapped Children. Secondary Education

Act of 1965, as

amended (20 U.S.C.

2791-2795).

Transition Program for Refugee Section 412(d), 538

Children. Immigration and

Naturalization Act (8

U.S.C. 1522(d)).

Emergency Immigrant Education Emergency Immigrant 581

Program. Education Act (20

U.S.C. 3121-3130).

Financial Assistance for Section 711, Higher 617

Construction, Reconstruction, or Education Act of 1965

Renovation of Higher Education (20 U.S.C. 1132b).

Facilities.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\(b\) Other programs\--hearings not required. Under other programs

covered by this part, a State agency\--other than a State educational

agency\--is not required to provide an opportunity for a hearing

regarding the agency\'s disapproval of an application.

\(c\) If an applicant for a subgrant alleges that any of the following

actions of a State educational agency violates a State or Federal

statute or regulation, the State educational agency and the applicant

shall use the procedures in paragraph (d) of this section:

\(1\) Disapproval of or failure to approve the application or project

in whole or in part.

\(2\) Failure to provide funds in amounts in accordance with the

requirements of statutes and regulations.

\(d\) State educational agency hearing procedures. (1) If the

applicant applied under a program listed in paragraph (a) of this

section, the State educational agency shall provide an opportunity for a

hearing before the agency disapproves the application.

\(2\) If the applicant applied under a program not listed in paragraph

\(a\) of this section, the State educational agency shall provide an

opportunity for a hearing either before or after the agency disapproves

the application.

\(3\) The applicant shall request the hearing within 30 days of the

action of the State educational agency.

(4)(i) Within 30 days after it receives a request, the State

educational agency shall hold a hearing on the record and shall review

its action.

\(ii\) No later than 10 days after the hearing the agency shall issue

its written ruling, including findings of fact and reasons for the

ruling.

\(iii\) If the agency determines that its action was contrary to State

or Federal statutes or regulations that govern the applicable program,

the agency shall rescind its action.

\(5\) If the State educational agency does not rescind its final

action after a review under this paragraph, the applicant may appeal to

the Secretary. The applicant shall file a notice of the appeal with the

Secretary within 20 days after the applicant has been notified by the

State educational agency of the results of the agency\'s review. If

supported by substantial evidence, findings of fact of the State

educational agency are final.

(6)(i) The Secretary may also issue interim orders to State

educational agencies as he or she may decide are necessary and

appropriate pending appeal or review.

\(ii\) If the Secretary determines that the action of the State

educational agency was contrary to Federal statutes or regulations that

govern the applicable program, the Secretary issues an order that

requires the State educational agency to take appropriate action.

\(7\) Each State educational agency shall make available at reasonable

times and places to each applicant all records of the agency pertaining

to any review or appeal the applicant is conducting under this section,

including records of other applicants.

\(8\) If a State educational agency does not comply with any provision

of this section, or with any order of the Secretary under this section,

the Secretary terminates all assistance to the State educational agency

under the applicable program or issues such other orders as the

Secretary deems appropriate to achieve compliance.

\(e\) Other State agency hearing procedures. State agencies that are

required to provide a hearing under paragraph (a) of this
section\--other

than State educational agencies\--are not required to use the procedures

in paragraph (d) of this section.

Note: This section is based on a provision in the General Education

Provisions Act (GEPA). Section 427 of the Department of Education

Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the

extent inconsistent with the DEOA, the GEPA \`\`shall apply to functions

transferred by this Act to the extent applicable on the day preceding

the effective date of this Act.\'\' Although standardized nomenclature
is

used in this section to reflect the creation of the Department of

Education, there is no intent to extend the coverage of the GEPA beyond

that authorized under Section 427 or other applicable law.

(Authority: 20 U.S.C. 1221e-3, 1231b-2, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 86296, Dec. 30, 1980; 50 FR 43545, Oct. 25, 1985; 52

FR 27805, July 24, 1987; 54 FR 21775, May 19, 1989; 55 FR 14816, Apr.

18, 1990; 57 FR 30341, July 8, 1992; 60 FR 46493, Sept. 6, 1995\]

# EDGAR - Part 76 Subpart F

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

Nondiscrimination

Sec. 76.500 Federal statutes and regulations on nondiscrimination.

A State and a subgrantee shall comply with the following statutes

and regulations:

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Subject Statute Regulation

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Discrimination on the basis of Title VI of the 34 CFR part 100.

race, color, or national origin. Civil Rights Act

of 1964 (45

U.S.C. 2000d

through 2000d-4).

Discrimination on the basis of Title IX of the 34 CFR part 106.

sex. Education

Amendments of

1972 (20 U.S.C.

1681-1683).

Discrimination on the basis of Section 504 of the 34 CFR part 104.

handicap. Rehabilitation

Act of 1973 (29

U.S.C. 794).

Discrimination on the basis of The Age 45 CFR part 90.

age. Discrimination

Act (42 U.S.C.

6101 et seq.).

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Allowable Costs

Sec. 76.530 General cost principles.

Both 34 CFR 74.27 and 34 CFR 80.22 reference the general cost

principles that apply to grants, subgrants and cost type contracts under

grants and subgrants.

(Authority: 20 U.S.C. 1221e-3, 3474 and 6511(a))

\[64 FR 50392, Sept. 16, 1999\]

Sec. 76.532 Use of funds for religion prohibited.

\(a\) No State or subgrantee may use its grant or subgrant to pay for

any of the following:

\(1\) Religious worship, instruction, or proselytization.

\(2\) Equipment or supplies to be used for any of the activities

specified in paragraph (a)(1) of this section.

\(3\) Construction, remodeling, repair, operation, or maintenance of

any facility or part of a facility to be used for any of the activities

specified in paragraph (a)(1) of this section.

\(4\) An activity of a school or department of divinity.

\(b\) As used in this section, school or department of divinity means

an institution or a component of an institution whose program is

specifically for the education of students to:

\(1\) Prepare them to enter into a religious vocation; or

\(2\) Prepare them to teach theological subjects.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.533 Acquistion of real property; construction.

No State or subgrantee may use its grant or subgrant for acquisition

of real property or for construction unless specifically permitted by

the authorizing statute or implementing regulations for the program.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.534 Use of tuition and fees restricted.

No State or subgrantee may count tuition and fees collected from

students toward meeting matching, cost sharing, or maintenance of effort

requirements of a program.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Indirect Cost Rates

Sec. 76.560 General indirect cost rates; exceptions.

\(a\) The differences between direct and indirect costs and the

principles for determining the general indirect cost rate that a grantee

may use for grants under most programs are specified in the cost

principles for\--

\(1\) Institutions of higher education, at 34 CFR 74.27;

\(2\) Hospitals, at 34 CFR 74.27;

\(3\) Other nonprofit organizations, at 34 CFR 74.27;

\(4\) Commercial (for-profit) organizations, at 34 CFR 74.27; and

\(5\) State and local governments and federally-recognized Indian

tribal organizations, at 34 CFR 80.22.

\(b\) A grantee must have a current indirect cost rate agreement to

charge indirect costs to a grant. To obtain an indirect cost rate, a

grantee must submit an indirect cost proposal to its cognizant agency

and negotiate an indirect cost rate agreement.

\(c\) The Secretary may establish a temporary indirect cost rate for a

grantee that does not have an indirect cost rate agreement with its

cognizant agency.

\(d\) The Secretary accepts an indirect cost rate negotiated by a

grantee\'s cognizant agency, but may establish a restricted indirect
cost

rate for a grantee to satisfy the statutory requirements of certain

programs administered by the Department.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[57 FR 30341, July 8, 1992, as amended at 59 FR 59582, Nov. 17, 1994\]

Sec. 76.561 Approval of indirect cost rates.

\(a\) If the Department of Education is the cognizant agency, the

Secretary approves an indirect cost rate for a State agency and for a

subgrantee other than a local educational agency. For the purposes of

this section, the term local educational agency does not include a State

agency.

\(b\) Each State educational agency, on the basis of a plan approved

by the Secretary, shall approve an indirect cost rate for each local

educational agency that requests it to do so. These rates may be for

periods longer than a year if rates are sufficiently stable to justify a

longer period.

\(c\) The Secretary generally approves indirect cost rate agreements

annually. Indirect cost rate agreements may be approved for periods

longer than a year if the Secretary determines that rates will be

sufficiently stable to justify a longer rate period.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[59 FR 59583, Nov. 17, 1994\]

Sec. 76.563 Restricted indirect cost rate\--programs covered.

Sections 76.564 through 76.569 apply to agencies of State and local

governments that are grantees under programs with a statutory

requirement prohibiting the use of Federal funds to supplant non-Federal

funds, and to their subgrantees under these programs.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[59 FR 59583, Nov. 17, 1994\]

Sec. 76.564 Restricted indirect cost rate\--formula.

\(a\) An indirect cost rate for a grant covered by Sec. 76.563 or 34

CFR 75.563 is determined by the following formula:

Restricted indirect cost rate = (General management costs + Fixed costs)

(Other expenditures)

\(b\) General management costs, fixed costs, and other expenditures

must be determined under Secs. 76.565 through 76.567.

\(c\) Under the programs covered by Sec. 76.563, a subgrantee of an

agency of a State or a local government (as those terms are defined in

34 CFR 80.3) or a grantee subject to 34 CFR 75.563 that is not a State

or local government agency may use\--

\(1\) An indirect cost rate computed under paragraph (a) of this

section; or

\(2\) An indirect cost rate of eight percent unless the Secretary

determines that the subgrantee or grantee would have a lower rate under

paragraph (a) of this section.

\(d\) Indirect costs that are unrecovered as a result of these

restrictions may not be charged directly, used to satisfy matching or

cost-sharing requirements, or charged to another Federal award.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474)

\[59 FR 59583, Nov. 17, 1994\]

Sec. 76.565 General management costs\--restricted rate.

\(a\) As used in Sec. 76.564, general management costs means the costs

of activities that are for the direction and control of the grantee\'s

affairs that are organization-wide. An activity is not organization-wide

if it is limited to one activity, one component of the grantee, one

subject, one phase of operations, or other single responsibility.

\(b\) General management costs include the costs of performing a

service function, such as accounting, payroll preparation, or personnel

management, that is normally at the grantee\'s level even if the
function

is physically located elsewhere for convenience or better management.

The term also includes certain occupancy and space maintenance costs as

determined under Sec. 76.568.

\(c\) The term does not include expenditures for\--

\(1\) Divisional administration that is limited to one component of

the grantee;

\(2\) The governing body of the grantee;

\(3\) Compensation of the chief executive officer of the grantee;

\(4\) Compensation of the chief executive officer of any component of

the grantee; and

\(5\) Operation of the immediate offices of these officers.

\(d\) For purposes of this section\--

\(1\) The chief executive officer of the grantee is the individual who

is the head of the executive office of the grantee and exercises overall

responsibility for the operation and management of the organization. The

chief executive officer\'s immediate office includes any deputy chief

executive officer or similar officer along with immediate support staff

of these individuals. The term does not include the governing body of

the grantee, such as a board or a similar elected or appointed governing

body; and

\(2\) Components of the grantee are those organizational units

supervised directly or indirectly by the chief executive officer. These

organizational units generally exist one management level below the

executive office of the grantee. The term does not include the office of

the chief executive officer or a deputy chief executive officer or

similar position.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474)

\[59 FR 59583, Nov. 17, 1994\]

Sec. 76.566 Fixed costs\--restricted rate.

As used in Sec. 76.564, fixed costs means contributions of the

grantee to fringe benefits and similar costs, but only those associated

with salaries and wages that are charged as indirect costs, including\--

\(a\) Retirement, including State, county, or local retirement funds,

Social Security, and pension payments;

\(b\) Unemployment compensation payments; and

\(c\) Property, employee, health, and liability insurance.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474)

\[59 FR 59583, Nov. 17, 1994\]

Sec. 76.567 Other expenditures\--restricted rate.

\(a\) As used in Sec. 76.564, other expenditures means the grantee\'s

total expenditures for its federally- and non-federally-funded

activities in the most recent year for which data are available. The

term also includes direct occupancy and space maintenance costs as

determined under Sec. 76.568 and costs related to the chief executive

officers of the grantee and components of the grantee and their offices

(see Sec. 76.565(c) and (d)).

\(b\) The term does not include\--

\(1\) General management costs determined under Sec. 76.565;

\(2\) Fixed costs determined under Sec. 76.566;

\(3\) Subgrants;

\(4\) Capital outlay;

\(5\) Debt service;

\(6\) Fines and penalties;

\(7\) Contingencies; and

\(8\) Election expenses. However, the term does include election

expenses that result from elections required by an applicable Federal

statute.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474)

\[59 FR 59583, Nov. 17, 1994\]

Sec. 76.568 Occupancy and space maintenance costs\--restricted rate.

\(a\) As used in the calculation of a restricted indirect cost rate,

occupancy and space maintenance costs means such costs as\--

\(1\) Building costs whether owned or rented;

\(2\) Janitorial services and supplies;

\(3\) Building, grounds, and parking lot maintenance;

\(4\) Guard services;

\(5\) Light, heat, and power;

\(6\) Depreciation, use allowances, and amortization; and

\(7\) All other related space costs.

\(b\) Occupancy and space maintenance costs associated with

organization-wide service functions (accounting, payroll, personnel) may

be included as general management costs if a space allocation or use

study supports the allocation.

\(c\) Occupancy and space maintenance costs associated with functions

that are not organization-wide must be included with other expenditures

in the indirect cost formula. These costs may be charged directly to

affected programs only to the extent that statutory supplanting

prohibitions are not violated. This reimbursement must be approved in

advance by the Secretary.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474)

\[59 FR 59584, Nov. 17, 1994\]

Sec. 76.569 Using the restricted indirect cost rate.

\(a\) Under the programs referenced in Sec. 76.563, the maximum amount

of indirect costs under a grant is determined by the following formula:

Indirect costs=(Restricted indirect cost rate) x (Total direct costs of

the grant minus capital outlays, subgrants, and other distorting or

unallowable items as specified in the grantee\'s indirect cost rate

agreement)

\(b\) If a grantee uses a restricted indirect cost rate, the general

management and fixed costs covered by that rate must be excluded by the

grantee from the direct costs it charges to the grant.

(Authority: 20 U.S.C. 1221e-3(a)(1), 2831(a), 2974(b), and 3474)

\[59 FR 59584, Nov. 17, 1994\]

Sec. 76.580 Coordination with other activities.

A State and a subgrantee shall, to the extent possible, coordinate

each of its projects with other activities that are in the same

geographic area served by the project and that serve similar purposes

and target groups.

(Authority: 20 U.S.C. 1221e-3, 2890, and 3474)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 57 FR 30341, July 8, 1992\]

Evaluation

Sec. 76.591 Federal evaluation\--cooperation by a grantee.

A grantee shall cooperate in any evaluation of the program by the

Secretary.

(Authority: 20 U.S.C. 1221e-3, 1226c, 1231a, 3474, and 6511(a))

\[45 FR 86298, Dec. 30, 1980, as amended at 57 FR 30341, July 8, 1992\]

Sec. 76.592 Federal evaluation\--satisfying requirement for State or

subgrantee evaluation.

If a State or a subgrantee cooperates in a Federal evaluation of a

program, the Secretary may determine that the State or subgrantee meets

the evaluation requirements of the program.

(Authority: 20 U.S.C. 1226c; 1231a)

Construction

Sec. 76.600 Where to find construction regulations.

\(a\) A State or a subgrantee that requests program funds for

construction, or whose grant or subgrant includes funds for

construction, shall comply with the rules on construction that apply to

applicants and grantees under 34 CFR 75.600-75.617.

\(b\) The State shall perform the functions that the Secretary

performs under Secs. 75.602 (Preservation of historic sites) and 75.605

(Approval of drawings and specifications) of this title.

\(c\) The State shall provide to the Secretary the information

required under 34 CFR 75.602(a) (Preservation of historic sites).

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 86298, Dec. 30, 1980; 57 FR 30341, July 8, 1992\]

Participation of Students Enrolled in Private Schools

Sec. 76.650 Private schools; purpose of Secs. 76.651-76.662.

\(a\) Under some programs, the authorizing statute requires that a

State and its subgrantees provide for participation by students enrolled

in private schools. Sections 76.651-76.662 apply to those programs and

provide rules for that participation. These sections do not affect the

authority of the State or a subgrantee to enter into a contract with a

private party.

\(b\) If any other rules for participation of students enrolled in

private schools apply under a particular program, they are in the

authorizing statute or implementing regulations for that program.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Note: Some program statutes authorize the Secretary\--under certain

circumstances\--to provide benefits directly to private school students.

These \`\`bypass\'\' provisions\--where they apply\--are implemented in
the

individual program regulations.

Sec. 76.651 Responsibility of a State and a subgrantee.

(a)(1) A subgrantee shall provide students enrolled in private

schools with a genuine opportunity for equitable participation in

accordance with the requirements in Secs. 76.652-76.662 and in the

authorizing statute and implementing regulations for a program.

\(2\) The subgrantee shall provide that opportunity to participate in

a manner that is consistent with the number of eligible private school

students and their needs.

\(3\) The subgrantee shall maintain continuing administrative

direction and control over funds and property that benefit students

enrolled in private schools.

(b)(1) A State shall ensure that each subgrantee complies with the

requirements in Secs. 76.651-76.662.

\(2\) If a State carries out a project directly, it shall comply with

these requirements as if it were a subgrantee.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.652 Consultation with representatives of private school

students.

\(a\) An applicant for a subgrant shall consult with appropriate

representatives of students enrolled in private schools during all

phases of the development and design of the project covered by the

application, including consideration of:

\(1\) Which children will receive benefits under the project;

\(2\) How the children\'s needs will be identified;

\(3\) What benefits will be provided;

\(4\) How the benefits will be provided; and

\(5\) How the project will be evaluated.

\(b\) A subgrantee shall consult with appropriate representatives of

students enrolled in private schools before the subgrantee makes any

decision that affects the opportunities of those students to participate

in the project.

\(c\) The applicant or subgrantee shall give the appropriate

representatives a genuine opportunity to express their views regarding

each matter subject to the consultation requirements in this section.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.653 Needs, number of students, and types of services.

A subgrantee shall determine the following matters on a basis

comparable to that used by the subgrantee in providing for participation

of public school students:

\(a\) The needs of students enrolled in private schools.

\(b\) The number of those students who will participate in a project.

\(c\) The benefits that the subgrantee will provide under the program

to those students.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.654 Benefits for private school students.

\(a\) Comparable benefits. The program benefits that a subgrantee

provides for students enrolled in private schools must be comparable in

quality, scope, and opportunity for participation to the program

benefits that the subgrantee provides for students enrolled in public

schools.

\(b\) Same benefits. If a subgrantee uses funds under a program for

public school students in a particular attendance area, or grade or age

level, the subgrantee shall insure equitable opportunities for

participation by students enrolled in private schools who:

\(1\) Have the same needs as the public school students to be served;

and

\(2\) Are in that group, attendance area, or age or grade level.

\(c\) Different benefits. If the needs of students enrolled in private

schools are different from the needs of students enrolled in public

schools, a subgrantee shall provide program benefits for the private

school students that are different from the benefits the subgrantee

provides for the public school students.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.655 Level of expenditures for students enrolled in private

schools.

\(a\) Subject to paragraph (b) of this section, a subgrantee shall

spend the same average amount of program funds on:

\(1\) A student enrolled in a private school who receives benefits

under the program; and

\(2\) A student enrolled in a public school who receives benefits

under the program.

\(b\) The subgrantee shall spend a different average amount on program

benefits for students enrolled in private schools if the average cost of

meeting the needs of those students is different from the average cost

of meeting the needs of students enrolled in public schools.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.656 Information in an application for a subgrant.

An applicant for a subgrant shall include the following information

in its application:

\(a\) A description of how the applicant will meet the Federal

requirements for participation of students enrolled in private schools.

\(b\) The number of students enrolled in private schools who have been

identified as eligible to benefits under the program.

\(c\) The number of students enrolled in private schools who will

receive benefits under the program.

\(d\) The basis the applicant used to select the students.

\(e\) The manner and extent to which the applicant complied with

Sec. 76.652 (consultation).

\(f\) The places and times that the students will receive benefits

under the program.

\(g\) The differences, if any, between the program benefits the

applicant will provide to public and private school students, and the

reasons for the differences.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.657 Separate classes prohibited.

A subgrantee may not use program funds for classes that are

organized separately on the basis of school enrollment or religion of

the students if:

\(a\) The classes are at the same site; and

\(b\) The classes include students enrolled in public schools and

students enrolled in private schools.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.658 Funds not to benefit a private school.

\(a\) A subgrantee may not use program funds to finance the existing

level of instruction in a private school or to otherwise benefit the

private school.

\(b\) The subgrantee shall use program funds to meet the specific

needs of students enrolled in private schools, rather than:

\(1\) The needs of a private school; or

\(2\) The general needs of the students enrolled in a private school.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.659 Use of public school personnel.

A subgrantee may use program funds to make public personnel

available in other than public facilities:

\(a\) To the extent necessary to provide equitable program benefits

designed for students enrolled in a private school; and

\(b\) If those benefits are not normally provided by the private

school.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.660 Use of private school personnel.

A subgrantee may use program funds to pay for the services of an

employee of a private school if:

\(a\) The employee performs the services outside of his or her regular

hours of duty; and

\(b\) The employee performs the services under public supervision and

control.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.661 Equipment and supplies.

\(a\) Under some program statutes, a public agency must keep title to

and exercise continuing administrative control of all equipment and

supplies that the subgrantee acquires with program funds. This public

agency is usually the subgrantee.

\(b\) The subgrantee may place equipment and supplies in a private

school for the period of time needed for the project.

\(c\) The subgrantee shall insure that the equipment or supplies

placed in a private school:

\(1\) Are used only for the purposes of the project; and

\(2\) Can be removed from the private school without remodeling the

private school facilities.

\(d\) The subgrantee shall remove equipment or supplies from a private

school if:

\(1\) The equipment or supplies are no longer needed for the purposes

of the project; or

\(2\) Removal is necessary to avoid use of the equipment of supplies

for other than project purposes.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Sec. 76.662 Construction.

A subgrantee shall insure that program funds are not used for the

construction of private school facilities.

(Authority: 20 U.S.C. 1221e-3 and 3474)

Procedures for Bypass

Sec. 76.670 Applicability and filing requirements.

\(a\) The regulations in Secs. 76.671 through 76.677 apply to the

following programs under which the Secretary is authorized to waive the

requirements for providing services to private school children and to

implement a bypass:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Implementing

CFDA number and name Authorizing statute regulations

of program title 34 CFR

part

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

84.010 Chapter 1 Program Chapter 1, Title I, Elementary 200

in Local Education and Secondary Education Act of

Agencies. 1965, as amended (20 U.S.C.

2701 et seq.).

84.151 Federal, State, Chapter 2, Title I, Elementary 298

and Local Partnership and Secondary Education Act of

for Educational 1965, as amended (20 U.S.C.

Improvement 2911 - 2952, 2971 - 2976).

84.164 Mathematics and Title II, Part A, Elementary 208

Science Education and Secondary Education Act of

Education. 1965, as amended (20 U.S.C.

2981 - 2993).

84.186 State and Local Part B, Drug Free Schools and None

Programs. Communities Act of 1986

(20 U.S.C. 3191 - 3197).

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

\(b\) Filing requirements. (1) Any written submission under

Secs. 76.671 through 76.675 must be filed by hand-delivery, by mail, or

by facsimile transmission. The Secretary discourages the use of

facsimile transmission for documents longer than five pages.

\(2\) If agreed upon by the parties, service of a document may be made

upon the other party by facsimile transmission.

\(3\) The filing date for a written submission is the date the

document is\--

\(i\) Hand-delivered;

\(ii\) Mailed; or

\(iii\) Sent by facsimile transmission.

\(4\) A party filing by facsimile transmission is responsible for

confirming that a complete and legible copy of the document was received

by the Department.

\(5\) If a document is filed by facsimile transmission, the Secretary

or the hearing officer, as applicable, may require the filing of a

follow-up hard copy by hand-delivery or by mail within a reasonable

period of time.

(Authority: 20 U.S.C. 2727(b), 2972(d)-(e), 2990(c), 3223(c))

\[54 FR 21775, May 19, 1989, as amended at 57 FR 56795, Nov. 30, 1992\]

Sec. 76.671 Notice by the Secretary.

\(a\) Before taking any final action to implement a bypass under a

program listed in Sec. 76.670, the Secretary provides the affected

grantee and subgrantee, if appropriate, with written notice.

\(b\) In the written notice, the Secretary\--

\(1\) States the reasons for the proposed bypass in sufficient detail

to allow the grantee and subgrantee to respond;

\(2\) Cites the requirement that is the basis for the alleged failure

to comply; and

\(3\) Advises the grantee and subgrantee that they\--

\(i\) Have at least 45 days after receiving the written notice to

submit written objections to the proposed bypass; and

\(ii\) May 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 grantee and subgrantee by

certified mail with return receipt requested.

(Authority: 20 U.S.C. 2727(b)(4)(A), 2972(h)(1), 2990(c), 3223(c))

\[54 FR 21775, May 19, 1989\]

Sec. 76.672 Bypass procedures.

Sections 76.673 through 76.675 contain the procedures that the

Secretary uses in conducting a show cause hearing. The hearing officer

may modify the procedures for a particular case if all parties agree the

modification is appropriate.

(Authority: 20 U.S.C. 2727(b)(4)(A), 2972(h)(1), 2990(c), 3223(c))

\[54 FR 21776, May 19, 1989\]

Sec. 76.673 Appointment and functions of a hearing officer.

\(a\) If a grantee or subgrantee requests a hearing to show cause why

the Secretary should not implement a bypass, 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 grantee, subgrantee, and

representatives of the private school children of the time and place of

the hearing.

(Authority: 20 U.S.C. 2727(b)(4)(A), 2972(h)(1), 2990(c), 3223(c))

\[54 FR 21776, May 19, 1989\]

Sec. 76.674 Hearing procedures.

\(a\) The following procedures apply to a show cause hearing regarding

implementation of a bypass:

\(1\) The hearing officer arranges for a transcript to be taken.

\(2\) The grantee, subgrantee, and representatives of the private

school children each may\--

\(i\) Be represented by legal counsel; and

\(ii\) Submit oral or written evidence and arguments at the hearing.

\(b\) Within 10 days after the hearing, the hearing officer\--

\(1\) Indicates that a decision will be issued on the basis of the

existing record; or

\(2\) Requests further information from the grantee, subgrantee,

representatives of the private school children, or Department officials.

(Authority: 20 U.S.C. 2727(b)(4)(A), 2972(h)(1), 2990(c), 3223(c))

\[54 FR 21776, May 19, 1989\]

Sec. 76.675 Posthearing procedures.

(a)(1) Within 120 days after the record of a show cause hearing is

closed, the hearing officer issues a written decision on whether a

bypass should be implemented.

\(2\) The hearing officer sends copies of the decision to the grantee,

subgrantee, representatives of the private school children, and the

Secretary.

\(b\) Within 30 days after receiving the hearing officer\'s decision,

the grantee, subgrantee, and representatives of the private school

children may each submit to the Secretary written comments on the

decision.

\(c\) The Secretary may adopt, reverse, modify, or remand the hearing

officer\'s decision.

(Authority: 20 U.S.C. 2727(b)(4)(A), 2972(h)(1), 2990(c), 3223(c))

\[54 FR 21776, May 19, 1989\]

Sec. 76.676 Judicial review of a bypass action.

If a grantee or subgrantee is dissatisfied with the Secretary\'s

final action after a proceeding under Secs. 76.672 through 76.675, it

may, within 60 days after receiving notice of that action, file a

petition for review with the United States Court of Appeals for the

circuit in which the State is located.

(Authority: 20 U.S.C. 2727(b)(4)(B)-(D), 2972(h)(2)-(4), 2990(c),

3223(c))

\[54 FR 21776, May 19, 1989\]

Sec. 76.677 Continuation of a bypass.

The Secretary continues a bypass until the Secretary determines that

the grantee or subgrantee will meet the requirements for providing

services to private school children.

(Authority: 20 U.S.C. 1221e-3, 2727(b)(3)(D), 2972(f), and 3474)

\[54 FR 21776, May 19, 1989\]

Other Requirements for Certain Programs

Sec. 76.681 Protection of human subjects.

If a State or a subgrantee uses a human subject in a research

project, the State or subgrantee shall protect the person from physical,

psychological, or social injury resulting from the project.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 57 FR 30341, July 8, 1992\]

Sec. 76.682 Treatment of animals.

If a State or a subgrantee uses an animal in a project, the State or

subgrantee shall provide the animal with proper care and humane

treatment in accordance with the Animal Welfare Act of 1970.

(Authority: Pub. L. 89-544, as amended)

Sec. 76.683 Health or safety standards for facilities.

A State and a subgrantee shall comply with any Federal health or

safety requirements that apply to the facilities that the State or

subgrantee uses for a project.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

# EDGAR - Part 76 Subpart G

Subpart G\--What Are the Administrative Responsibilities of the State

and Its Subgrantees?

General Administrative Responsibilities

Sec. 76.700 Compliance with statutes, regulations, State plan, and

applications.

A State and a subgrantee shall comply with the State plan and

applicable statutes, regulations, and approved applications, and shall

use Federal funds in accordance with those statutes, regulations, plan,

and applications.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.701 The State or subgrantee administers or supervises each

project.

A State or a subgrantee shall directly administer or supervise the

administration of each project.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.702 Fiscal control and fund accounting procedures.

A State and a subgrantee shall use fiscal control and fund

accounting procedures that insure proper disbursement of and accounting

for Federal funds.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.703 When a State may begin to obligate funds.

(a)(1) The Secretary may establish, for a program subject to this

part, a date by which a State must submit for review by the Department a

State plan and any other documents required to be submitted under

guidance provided by the Department under paragraph (b)(3) of this

section.

\(2\) If the Secretary does not establish a date for the submission of

State plans and any other documents required under guidance provided by

the Department, the date for submission is three months before the date

the Secretary may begin to obligate funds under the program.

(b)(1) This paragraph (b) describes the circumstances under which

the submission date for a State plan may be deferred.

\(2\) If a State asks the Secretary in writing to defer the submission

date for a State plan because of a Presidentially declared disaster that

has occurred in that State, the Secretary may defer the submission date

for the State plan and any other document required under guidance

provided by the Department if the Secretary determines that the disaster

significantly impairs the ability of the State to submit a timely State

plan or other document required under guidance provided by the

Department.

(3)(i) The Secretary establishes, for a program subject to this

part, a date by which the program office must deliver guidance to the

States regarding the contents of the State plan under that program.

\(ii\) The Secretary may only establish a date for the delivery of

guidance to the States so that there are at least as many days between

that date and the date that State plans must be submitted to the

Department as there are days between the date that State plans must be

submitted to the Department and the date that funds are available for

obligation by the Secretary on July 1, or October 1, as appropriate.

\(iii\) If a State does not receive the guidance by the date

established under paragraph (b)(3)(i) of this section, the submission

date for the State plan under the program is deferred one day for each

day that the guidance is late in being received by the State.

Note: The following examples describe how the regulations in

Sec. 76.703(b)(3) would act to defer the date that a State would have to

submit its State plan.

Example 1. The Secretary decides that State plans under a forward-

funded program must be submitted to the Department by May first. The

Secretary must provide guidance to the States under this program by

March first, so that the States have at least as many days between the

guidance date and the submission date (60) as the Department has between

the submission date and the date that funds are available for obligation

(60). If the program transmits guidance to the States on February 15,

specifying that State plans must be submitted by May first, States

generally would have to submit State plans by that date. However, if,

for example, a State did not receive the guidance until March third,

that State would have until May third to submit its State plan because

the submission date of its State plan would be deferred one day for each

day that the guidance to the State was late.

Example 2. If a program publishes the guidance in the Federal

Register on March third, the States would be considered to have received

the guidance on that day. Thus, the guidance could not specify a date

for the submission of State plans before May second, giving the States

59 days between the date the guidance is published and the submission

date and giving the Department 58 days between the submission date and

the date that funds are available for obligation.

(c)(1) For the purposes of this section, the submission date of a

State plan or other document is the date that the Secretary receives the

plan or document.

\(2\) The Secretary does not determine whether a State plan is

substantially approvable until the plan and any documents required under

guidance provided by the Department have been submitted.

\(3\) The Secretary notifies a State when the Department has received

the State plan and all documents required under guidance provided by the

Department.

\(d\) If a State submits a State plan in substantially approvable form

(or an amendment to the State plan that makes it substantially

approvable), and submits any other document required under guidance

provided by the Department, on or before the date the State plan must be

submitted to the Department, the State may begin to obligate funds on

the date that the funds are first available for obligation by the

Secretary.

\(e\) If a State submits a State plan in substantially approvable form

(or an amendment to the State plan that makes it substantially

approvable) or any other documents required under guidance provided by

the Department after the date the State plan must be submitted to the

Department, and\--

\(1\) The Department determines that the State plan is substantially

approvable on or before the date that the funds are first available for

obligation by the Secretary, the State may begin to obligate funds on

the date that the funds are first available for obligation by the

Secretary; or

\(2\) The Department determines that the State plan is substantially

approvable after the date that the funds are first available for

obligation by the Secretary, the State may begin to obligate funds on

the earlier of the two following dates:

\(i\) The date that the Secretary determines that the State plan is

substantially approvable.

\(ii\) The date that is determined by adding to the date that funds

are first available for obligation by the Secretary\--

\(A\) The number of days after the date the State plan must be

submitted to the Department that the State plan or other document

required under guidance provided by the Department is submitted; and

\(B\) If applicable, the number of days after the State receives

notice that the State plan is not substantially approvable that the

State submits additional information that makes the plan substantially

approvable.

\(f\) Additional information submitted under paragraph (e)(2)(ii)(B)

of this section must be signed by the person who submitted the original

State plan (or an authorized delegate of that officer).

(g)(1) If the Department does not complete its review of a State

plan during the period established for that review, the Secretary will

grant pre-award costs for the period after funds become available for

obligation by the Secretary and before the State plan is found

substantially approvable.

\(2\) The period established for the Department\'s review of a plan

does not include any day after the State has received notice that its

plan is not substantially approvable.

Note: The following examples describe how the regulations in

Sec. 76.703 would be applied in certain circumstances. For the purpose

of these examples, assume that the grant program established an April 1

due date for the submission of the State plan and that funds are first

available for obligation by the Secretary on July 1.

Example 1. Paragraph (d): A State submits a plan in substantially

approvable form by April 1. The State may begin to obligate funds on

July 1.

Example 2. Paragraph (e)(1): A State submits a plan in substantially

approvable form on May 15, and the Department notifies the State that

the plan is substantially approvable on June 20. The State may begin to

obligate funds on July 1.

Example 3. Paragraph (e)(2)(i): A State submits a plan in

substantially approvable form on May 15, and the Department notifies the

State that the plan is substantially approvable on July 15. The State

may begin to obligate funds on July 15.

Example 4. Paragraph (e)(2)(ii)(A): A State submits a plan in

substantially approvable form on May 15, and the Department notifies the

State that the plan is substantially approvable on August 21. The State

may begin to obligate funds on August 14. (In this example, the plan is

45 days late. By adding 45 days to July 1, we reach August 14, which is

earlier than the date, August 21, that the Department notifies the State

that the plan is substantially approvable. Therefore, if the State chose

to begin drawing funds from the Department on August 14, obligations

made on or after that date would generally be allowable.)

Example 5. Paragraph (e)(2)(i): A State submits a plan on May 15,

and the Department notifies the State that the plan is not substantially

approvable on July 10. The State submits changes that make the plan

substantially approvable on July 20 and the Department notifies the

State that the plan is substantially approvable on July 25. The State

may begin to obligate funds on July 25. (In this example, the original

submission is 45 days late. In addition, the Department notifies the

State that the plan is not substantially approvable and the time from

that notification until the State submits changes that make the plan

substantially approvable is an additional 10 days. By adding 55 days to

July 1, we reach August 24. However, since the Department notified the

State that the plan was substantially approvable on July 25, that is the

date that the State may begin to obligate funds.)

Example 6. Paragraph (e)(2)(ii)(B): A State submits a plan on May

15, and the Department notifies the State that the plan is not

substantially approvable on August 1. The State submits changes that

make the plan substantially approvable on August 20, and the Department

notifies the State that the plan is substantially approvable on

September 5. The State may choose to begin drawing funds from the

Department on September 2, and obligations made on or after that date

would generally be allowable. (In this example, the original submission

is 45 days late. In addition, the Department notifies the State that the

plan is not substantially approvable and the time from that notification

until the State submits changes that make the plan substantially

approvable is an additional 19 days. By adding 64 days to July 1, we

reach September 2, which is earlier than September 5, the date that the

Department notifies the State that the plan is substantially

approvable.)

Example 7. Paragraph (g): A State submits a plan on April 15 and the

Department notifies the State that the plan is not substantially

approvable on July 16. The State makes changes to the plan and submits a

substantially approvable plan on July 30. The Department had until July

15 to decide whether the plan was substantially approvable because the

State was 15 days late in submitting the plan. The date the State may

begin to obligate funds under the regulatory deferral is July 29 (based

on the 15 day deferral for late submission plus a 14 day deferral for

the time it took to submit a substantially approvable plan after having

received notice). However, because the Department was one day late in

completing its review of the plan, the State would get pre-award costs

to cover the period of July 1 through July 29.

\(h\) After determining that a State plan is in substantially

approvable form, the Secretary informs the State of the date on which it

could begin to obligate funds. Reimbursement for those obligations is

subject to final approval of the State plan.

(Authority: 20 U.S.C. 1221e-3, 3474, 6511(a) and 31 U.S.C. 6503)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 60 FR 41294, Aug. 11, 1995; 61 FR 14484, Apr. 2, 1996\]

Sec. 76.704 New State plan requirements that must be addressed in a

State plan.

\(a\) This section specifies the State plan requirements that must be

addressed in a State plan if the State plan requirements established in

statutes or regulations change on a date close to the date that State

plans are due for submission to the Department.

(b)(1) A State plan must meet the following requirements:

\(i\) Every State plan requirement in effect three months before the

date the State plan is due to be submitted to the Department under 34

CFR 76.703; and

\(ii\) Every State plan requirement included in statutes or

regulations that will be effective on or before the date that funds

become available for obligation by the Secretary and that have been

signed into law or published in the Federal Register as final

regulations three months before the date the State plan is due to be

submitted to the Department under 34 CFR 76.703.

\(2\) If a State plan does not have to meet a new State plan

requirement under paragraph (b)(1) of this section, the Secretary takes

one of the following actions:

\(i\) Require the State to submit assurances and appropriate

documentation to show that the new requirements are being followed under

the program.

\(ii\) Extend the date for submission of State plans and approve pre-

award costs as necessary to hold the State harmless.

\(3\) If the Secretary requires a State to submit assurances under

paragraph (b)(2) of this section, the State shall incorporate changes to

the State plan as soon as possible to comply with the new requirements.

The State shall submit the necessary changes before the start of the
next

obligation period.

(Authority: 20 U.S.C. 1221e-3, 3474, 6511(a) and 31 U.S.C. 6503)

\[60 FR 41296, Aug. 11, 1995\]

Sec. 76.707 When obligations are made.

The following table shows when a State or a subgrantee makes

obligations for various kinds of property and services.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

If the obligation is for\-- The obligation is made\--

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

\(a\) Acquisition of real or personal On the date on which the

property. State or subgrantee makes a

binding written commitment

to acquire the property.

\(b\) Personal services by an employee of When the services are

the State or subgrantee. performed.

\(c\) Personal services by a contractor who On the date on which the

is not an employee of the State or State or subgrantee makes a

subgrantee. binding written commitment

to obtain the services.

\(d\) Performance of work other than On the date on which the

personal services. State or subgrantee makes a

binding written commitment

to obtain the work.

\(e\) Public utility services\...\...\...\...\... When the State or
subgrantee

receives the services.

\(f\) Travel\...\...\...\...\...\...\...\...\...\..... When the travel
is taken.

\(g\) Rental of real or personal property\... When the State or
subgrantee

uses the property.

\(h\) A preagreement cost that was properly

approved by the State under the cost

principals identified in 34 CFR 74.171

and 80.22..

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 55 FR 14817, Apr. 18, 1990; 57 FR 30342, July 8, 1992\]

Sec. 76.708 When certain subgrantees may begin to obligate funds.

\(a\) If the authorizing statute for a program requires a State to

make subgrants on the basis of a formula (see Sec. 76.5), the State may

not authorize an applicant for a subgrant to obligate funds until the

later of the following two dates:

\(1\) The date that the State may begin to obligate funds under

Sec. 76.703; or

\(2\) The date that the applicant submits its application to the State

in substantially approvable form.

\(b\) Reimbursement for obligations under paragraph (a) of this

section is subject to final approval of the application.

\(c\) If the authorizing statute for a program gives the State

discretion to select subgrantees, the State may not authorize an

applicant for a subgrant to obligate funds until the subgrant is made.

However, the State may approve pre-agreement costs in accordance with

the cost principles that are appended to 34 CFR part 74 (Appendices C-

F).

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980.

Further redesignated at 60 FR 41295, Aug. 11, 1995\]

Sec. 76.709 Funds may be obligated during a \`\`carryover period.\'\'

\(a\) If a State or a subgrantee does not obligate all of its grant or

subgrant funds by the end of the fiscal year for which Congress

appropriated the funds, it may obligate the remaining funds during a

carryover period of one additional fiscal year.

\(b\) The State shall return to the Federal Government any carryover

funds not obligated by the end of the carryover period by the State and

its subgrantees.

Note: This section is based on a provision in the General Education

Provisions Act (GEPA). Section 427 of the Department of Education

Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the

extent inconsistent with the DEOA, the GEPA \`\`shall apply to functions

transferred by this Act to the extent applicable on the day preceding

the effective date of this Act.\'\' Although standardized nomenclature
is

used in this section to reflect the creation of the Department of

Education, there is no intent to extend the coverage of the GEPA beyond

that authorized under section 427 or other applicable law.

(Authority: U.S.C. 1221e-3, 1225(b), and 3474)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 86296, Dec. 30, 1980. Redesignated at 60 FR 41295,

Aug. 11, 1995\]

Sec. 76.710 Obligations made during a carryover period are subject to

current statutes, regulations, and applications.

A State and a subgrantee shall use carryover funds in accordance

with:

\(a\) The Federal statutes and regulations that apply to the program

and are in effect for the carryover period; and

\(b\) Any State plan, or application for a subgrant, that the State or

subgrantee is required to submit for the carryover period.

Note: This section is based on a provision in the General Education

Provisions Act (GEPA). Section 427 of the Department of Education

Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the

extent inconsistent with the DEOA, the GEPA \`\`shall apply to functions

transferred by this Act to the extent applicable on the day preceding

the effective date of this Act.\'\' Although standardized nomenclature
is

used in this section to reflect the creation of the Department of

Education, there is no intent to extend the coverage of the GEPA beyond

that authorized under section 427 or other applicable law.

(Authority: U.S.C. 1221e-3, 1225(b), and 3474)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 86296, Dec. 30, 1980. Redesignated at 60 FR 41295,

Aug. 11, 1995\]

Sec. 76.711 Requesting funds by CFDA number.

If a program is listed in the Catalog of Federal Domestic Assistance

(CFDA), a State, when requesting funds under the program, shall identify

that program by the CFDA number.

(Authority: 20 U.S.C. 1221e-3, 6511(a), 3474, 31 U.S.C. 6503)

\[60 FR 41296, Aug. 11, 1995\]

Reports

Sec. 76.720 Financial and performance reports by a State.

\(a\) This section applies to a State\'s reports required under 34 CFR

80.41 (Financial reporting) and 34 CFR 80.40 (Monitoring and reporting

of program performance).

\(b\) A State shall submit these reports annually, unless the

Secretary allows less frequent reporting.

\(c\) However, the Secretary may, under 34 CFR 80.12 (Special grant or

subgrant conditions for \`\`high-risk\'\' grantees) or 34 CFR 80.20

(Standards for financial management systems) require a State to report

more frequently than annually.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

\[57 FR 30342, July 8, 1992\]

Sec. 76.722 A subgrantee makes reports required by the State.

A State may require a subgrantee to furnish reports that the State

needs to carry out its responsibilities under the program.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Records

Sec. 76.730 Records related to grant funds.

A State and a subgrantee shall keep records that fully show:

\(a\) The amount of funds under the grant or subgrant;

\(b\) How the State or subgrantee uses the funds;

\(c\) The total cost of the project;

\(d\) The share of that cost provided from other sources; and

\(e\) Other records to facilitate an effective audit.

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

1880-0513)

(Authority: 20 U.S.C. 1232f)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 53 FR 49143, Dec. 6, 1988\]

Sec. 76.731 Records related to compliance.

A State and a subgrantee shall keep records to show its compliance

with program requirements.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Privacy

Sec. 76.740 Protection of and access to student records; student rights

in research, experimental programs, and testing.

\(a\) Most records on present or past students are subject to the

requirements of section 438 of GEPA and its implementing regulations

under 34 CFR part 99. (Section 438 is the Family Educational Rights and

Privacy Act of 1974.)

\(b\) Under most programs administered by the Secretary, research,

experimentation, and testing are subject to the requirements of section

439 of GEPA and its implementing regulations at 34 CFR part 98.

(Authority: 20 U.S.C. 1221e-3, 1232g, 1232h, 3474, and 6511(a))

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 57 FR 30342, July 8, 1992\]

Use of Funds by States and Subgrantees

Sec. 76.760 More than one program may assist a single activity.

A State or a subgrantee may use funds under more than one program to

support different parts of the same project if the State or subgrantee

meets the following conditions:

\(a\) The State or subgrantee complies with the requirements of each

program with respect to the part of the project assisted with funds

under that program.

\(b\) The State or subgrantee has an accounting system that permits

identification of the costs paid for under each program.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.761 Federal funds may pay 100 percent of cost.

A State or a subgrantee may use program funds to pay up to 100

percent of the cost of a project if:

\(a\) The State or subgrantee is not required to match the funds; and

\(b\) The project can be assisted under the authorizing statute and

implementing regulations for the program.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

State Administrative Responsibilities

Sec. 76.770 A State shall have procedures to ensure compliance.

Each State shall have procedures for reviewing and approving

applications for subgrants and amendments to those applications, for

providing technical assistance, for evaluating projects, and for

performing other administrative responsibilities the State has

determined are necessary to ensure compliance with applicable statutes

and regulations.

(Authority: 20 U.S.C. 1221e-3 and 3474)

\[57 FR 30342, July 8, 1992\]

Sec. 76.783 State educational agency action\--subgrantee\'s opportunity

for a hearing.

\(a\) A subgrantee may request a hearing if it alleges that any of the

following actions by the State educational agency violated a State or

Federal statute or regulation:

\(1\) Ordering, in accordance with a final State audit resolution

determination, the repayment of misspent or misapplied Federal funds; or

\(2\) Terminating further assistance for an approved project.

\(b\) The procedures in Sec. 76.401(d)(2)-(7) apply to any request for

a hearing under this section.

Note: This section is based on a provision in the General Education

Provisions Act (GEPA). Section 427 of the Department of Education

Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the

extent inconsistent with the DEOA, the GEPA \`\`shall apply to functions

transferred by this Act to the extent applicable on the day preceding

the effective date of this Act.\'\' Although standardized nomenclature
is

used in this section to reflect the creation of the Department of

Education, there is no intent to extend the coverage of the GEPA beyond

that authorized under section 427 or other applicable law.

(Authority: 20 U.S.C. 1231b-2)

\[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980,

as amended at 45 FR 86296, Dec. 30, 1980; 57 FR 30342, July 8, 1992\]

# EDGAR - Part 76 Subpart I

Subpart I\--What Procedures Does the Secretary Use To Get Compliance?

Source: 45 FR 22517, Apr. 3, 1980, unless otherwise noted.

Redesignated at 45 FR 77368, Nov. 21, 1980, and further redesignated at

64 FR 71965, Dec. 22, 1999.

Sec. 76.900 Waiver of regulations prohibited.

\(a\) No official, agent, or employee of ED may waive any regulation

that applies to a Department program unless the regulation specifically

provide that it may be waived.

\(b\) No act or failure to act by an official, agent, or employee of

ED can affect the authority of the Secretary to enforce regulations.

(Authority: 43 Dec. Comp. Gen. 31(1963))

Sec. 76.901 Office of Administrative Law Judges.

\(a\) The Office of Administrative Law Judges, established under Part

E of GEPA, has the following functions:

\(1\) Recovery of funds hearings under section 452 of GEPA.

\(2\) Withholding hearings under section 455 of GEPA.

\(3\) Cease and desist hearings under section 456 of GEPA.

\(4\) Any other proceeding designated by the Secretary under section

451 of GEPA.

\(b\) The regulations of the Office of Administrative Law Judges are

at 34 CFR part 81.

(Authority: 20 U.S.C. 1234)

\[57 FR 30342, July 8, 1992\]

Sec. 76.902 Judicial review.

After a hearing by the Secretary, a State is usually entitled\--

generally by the statute that required the hearing\--to judicial review

of the Secretary\'s decision.

(Authority: 20 U.S.C. 1221e-3, 3474, and 6511(a))

Sec. 76.910 Cooperation with audits.

A grantee or subgrantee shall cooperate with the Secretary and the

Comptroller General of the United States or any of their authorized

representatives in the conduct of audits authorized by Federal law. This

cooperation includes access without unreasonable restrictions to records

and personnel of the grantee or subgrantee for the purpose of obtaining

relevant information.

(Authority: 5 U.S.C. appendix 3, sections 4(a)(1), 4(b)(1)(A), and

6(a)(1); 20 U.S.C. 1221e-3(a)(1), 1232f)

\[54 FR 21776, May 19, 1989\]