[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR81.33]



[Page 235-236]

 

                           TITLE 34--EDUCATION

 

PART 81_GENERAL EDUCATION PROVISIONS ACT_ENFORCEMENT--Table of Contents

 

                Subpart B_Hearings for Recovery of Funds

 

Sec.  81.33  Mitigating circumstances.



    (a) A recipient that is a State or local educational agency and that 

has made an unallowable expenditure or otherwise failed to account 

properly for funds is not required to return any amount that is 

attributable to the mitigating circumstances described in paragraph (b), 

(c), or (d) of this section.

    (b) Mitigating circumstances exist if it would be unjust to compel 

the recovery of funds because the recipient's violation was caused by 

erroneous written guidance from the department. To prove mitigating 

circumstances under this paragraph, the recipient shall prove that--

    (1) The guidance was provided in response to a specific written 

request from the recipient that was submitted to the Department at the 

address provided by notice published in the Federal Register under this 

section;

    (2) The guidance was provided by a Departmental official authorized 

to provide the guidance, as described by that notice;



[[Page 236]]



    (3) The recipient actually relied on the guidance as the basis for 

the conduct that constituted the violation; and

    (4) The recipient's reliance on the guidance was reasonable.

    (c) Mitigating circumstances exist if it would be unjust to compel 

the recovery of funds because the recipient's violation was caused by 

the Department's failure to provide timely guidance. To prove mitigating 

circumstances under this paragraph, the recipient shall prove that--

    (1) The recipient in good faith submitted a written request for 

guidance with respect to the legality of a proposed expenditure or 

practice;

    (2) The request was submitted to the Department at the address 

provided by notice published in the Federal Register under this section;

    (3) The request--

    (i) Accurately described the proposed expenditure or practice; and

    (ii) Included the facts necessary for the Department's determination 

of its legality;

    (4) The request contained the certification of the chief legal 

officer of the appropriate State educational agency that the officer--

    (i) Examined the proposed expenditure or practice; and

    (ii) Believed it was permissible under State and Federal law 

applicable at the time of the certification;

    (5) The recipient reasonably believed the proposed expenditure or 

practice was permissible under State and Federal law applicable at the 

time it submitted the request to the Department;

    (6) No Departmental official authorized to provide the requested 

guidance responded to the request within 90 days of its receipt by the 

Department; and

    (7) The recipient made the proposed expenditure or engaged in the 

proposed practice after the expiration of the 90-day period.

    (d) Mitigating circumstances exist if it would be unjust to compel 

the recovery of funds because the recipient's violation was caused by 

the recipient's compliance with a judicial decree from a court of 

competent jurisdiction. To prove mitigating circumstances under this 

paragraph, the recipient shall prove that--

    (1) The recipient was legally bound by the decree;

    (2) The recipient actually relied on the decree when it engaged in 

the conduct that constituted the violation; and

    (3) The recipient's reliance on the decree was reasonable.

    (e) If a Departmental official authorized to provide the requested 

guidance responds to a request described in paragraph (c) of this 

section more than 90 days after its receipt, the recipient that made the 

request shall comply with the guidance at the earliest practicable time.



(Authority: 20 U.S.C. 1221e-3, 1234(f)(1), 1234b(b), and 3474(a))



[54 FR 19512, May 5, 1989. Redesignated at 58 FR 43473, Aug. 16, 1993]