(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 31.8(b), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and either
(1) Fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the Secretary
that the matter be scheduled for hearing, or
(2) Advise the applicant or recipient that the matter in question
has been set down for hearing at a stated place and time. The time and
place so fixed shall be reasonable and shall be subject to change for
cause. The complainant, if any, shall be advised of the time and place
of the hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this section or to
appear at a hearing under this section or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and Sec. 31.8(b) of this part and
consent to the making of a decision on the basis of such information as
is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department in Washington, DC, at a time fixed by the Secretary
unless he determines that the convenience of the applicant or recipient
or of the Department requires that another place be selected. Hearings
shall be held before the Secretary or before a hearing examiner
designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the
Administrative Procedure Act).
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient, and the Department shall have the right to be
represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and
any administrative review thereof shall be conducted in conformity with
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and
in accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the applicant or recipient shall be entitled to introduce all
relevant evidence on the issues as stated in the notice for hearing or
as determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or Joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under title VI of the Act, the
Secretary may, by agreement with such other departments or agencies,
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such
hearings or rules of procedure not inconsistent with this part. Final
decisions in such cases, insofar as this part is concerned, shall be
made in accordance with Sec. 31.10.
[29 FR 16284, Dec. 4, 1964. Redesignated and amended at 38 FR 17958,
July 5, 1973]
