(a) Jurisdiction. (1) Within 21 days of receipt of the Grant
Officer's final determination, except for determinations under
Sec. 636.8(e)(3) dismissing the complaint without an opportunity to
request a hearing, or on the expiration of 120 days of the filing of a
complaint with the Grant Officer upon which no extensions have been
mutually agreed, any affected grantee, subrecipient of complainant may
transmit by certified mail, return receipt requested, a request for
hearing to the Chief Administrative Law Judge, United States Department
of Labor, 800 K Street, NW., suite 400, Washington, DC 20001-8002 with a
copy to the Grant Officer.
(2) The request for hearing shall be accompanied by a copy of the
Grant Officer's final determination, if issued, and shall specifically
state those issues of the determination upon which review is requested.
Those provisions of the determination not specified for review, or the
entire determination when no hearing has been requested, shall be
considered resolved and not subject to further review.
(3) Except as otherwise provided by these regulations, only alleged
violations of the Act, regulations, grants or other agreements under the
Act fairly raised in grantee level proceedings under Sec. 636.3, alleged
violations of recipient level procedures fairly raised before the Grant
Officer, or complaints identified in sections 164(f) and 166(a) of the
Act are subject to review.
(4) The same procedure set forth in paragraphs (a) (1) through (3)
of this section applies in the case of a complainant who has not had a
dispute adjudicated by the informal review process of Sec. 636.9 within
the 60 days, except that the request for hearing before the OALJ must be
filed within 15 days of the conclusion of the 60-day period. In addition
to including the determination upon which review is requested, the
complainant must include a copy of any Stipulation of Facts and a brief
summary of proceedings.
(5) Discretionary hearing. An opportunity for a hearing may also be
extended when the appropriate Assistant Secretary determines that
fairness and the effective operation of JTPA programs would be
furthered.
(b) Service and filing. Copies of all papers required to be served
on a party or filed with the OALJ shall be filed simultaneously with the
OALJ and served upon the parties of record or their representatives, and
shall contain proof of such service.
(c) Rules of Procedure. The rules of practice and procedure
promulgated by the OALJ shall govern the conduct of hearings under this
section.
(d) Prehearing procedures. In all cases, the OALJ should encourage
the use of prehearing procedures to simplify and clarify facts and
issues.
(e) Subpoenas. Subpoenas necessary to secure the attendance of
witnesses and the production of documents or things at hearings shall be
obtained from the OALJ and shall be issued pursuant to the authority
contained in section 163(b) of the Act, incorporating 15 U.S.C. section
49.
(f) Timely submission of evidence. The OALJ shall not permit the
introduction at the hearing of documentation relating to the
allowability of costs if such documentation has not been made available
for review either at the time ordered for any prehearing conference, or,
in the absence of such an order, at least three weeks prior to the
hearing date.
(g) Burden of production. The Department shall have the burden of
production to support the Grant Officer's decision. To this end, the
Grant Officer shall prepare and file an administrative file in support
of the decision. Thereafter, the party or parties seeking to overturn
the Grant Officer's decision shall have the burden of persuasion.
(h) Review. (1) In all cases proceeding under Sec. 636.6, the
Administrative Law Judge shall review the Administrative File and the
request for hearing and shall determine whether there has been a full
and fair hearing at the grantee level and whether there are no material
factual issues unresolved. If the Administrative Law Judge determines
that these two conditions are met, the case shall be decided upon the
record and upon such briefs as the parties may submit. The
Administrative Law Judge shall determine from the record whether there
exists reliable and probative evidence to uphold the decision of the
Grant Officer and shall, as appropriate, either affirm or remand the
decision.
(2) If the Administrative Law Judge determines that either of the
two conditions is not met, he or she shall hold a hearing. In such
cases, the Office of Administrative Law Judges shall have the full
authority of the Secretary under section 164 of the Act, except with
respect to the provisions of subsection (e) of that section.
(3) Nothing in this subsection shall be construed to limit the right
of the parties to seek a dismissal of the request for hearing or to seek
summary judgment.
(i) Termination of grant. When the decision terminates the grant in
whole or in part after hearing pursuant to this subpart, the decision
shall specify the extent of termination and the date upon which such
termination becomes effective. Upon receipt of this notice, the grantee
shall:
(1) Discontinue further commitments of grant funds to the extent
that they relate to the terminated portion of the grant.
(2) Promptly cancel all subgrants, agreements and contracts
utilizing funds under this grant to the extent that they relate to the
terminated portion of the grant.
(3) Settle, with the approval of the Secretary, all outstanding
claims arising from such termination.
(4) Submit, within a reasonable period of time, after the receipt of
the notice of termination, a termination settlement proposal which shall
include a final statement of all unreimbursed costs related to the
terminated portion of the grant.
(j) Alternative provision of services. If the final decision
specifies suspension or termination of the grant, the Grant Officer
shall determine how services shall be maintained in the grantee's area.
As part of the determination, the Grant Officer shall determine whether
any funds shall be reallocated to another recipient to serve the area
formerly served by the terminated or suspended grant. The Grant Officer
may also consider the desirability of providing direct Federal services
to the area through appropriate means.
(k) Timing of decisions. The Office of Administrative Law Judges
should render a written decision not later than 90 days after the
closing of the record.
[48 FR 48780, Oct. 20, 1983, as amended at 56 FR 54708, Oct. 22, 1991]
