the Committee and which would substantiate a decision by the Committee to recommend that the Director of the VA facility of jurisdiction take an adverse action on the issues submitted for its review. The educational institution will be advised of its right to present any evidence, relevant to the issues submitted for the Committee's review, by oral or documentary evidence; to submit rebuttal evidence; to present and cross-examine witnesses; and to make such statements as may be appropriate on its behalf for a true and full disclosure of the facts. VA Counsel will be allowed to cross-examine any witnesses offered by the educational institution and to reply to any written briefs or arguments submitted to the Committee.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(c) Rule 3. Any testimony or evidence, either oral or written, which the Committee on Educational Allowances deems to be of probative value in deciding the question at issue will be admitted in evidence. While irrelevant, immaterial, or unduly repetitious evidence, testimony, or arguments should be excluded, reasonable latitude will be permitted with respect to the relevancy, materiality, and competency of evidence. In most instances the eviIdence will consist of official records of the educational institution and VA, and these documents may be attested to and introduced by affidavit; but the introduction of oral testimony by the educational institution or by VA will be allowed, as appropriate, in any instance where the educational institution or VA Counsel desires. VA, however, will neither subpoena any witness on behalf of the educational institution for such purposes nor bear any expenses in connection with the appearance of such witness. In instances where the evidence reasonably available consists of signed written statements, secondary or hearsay evidence, etc., such evidence may be introduced into the record and will be given the weight and consideration which the circumstances warrant.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(d) Rule 4. A verbatim stenographi or recorded transcript of the hearin will be made. This transcript will be come a permanent part of the record and a copy will be furnished to the edu cational institution and the VA Cour sel at the conclusion of the proceeding unless furnishing of the copy of thi transcript is waived by the educationa institution.

(Authority: 10 U.S.C. 16136(b); 38 U.S. 3034(a), 3241(a), 3690)

(e) Rule 5. The Chairperson of th Committee on Educational Allowance will identify all exhibits in the order c introduction or receipt (numericall for VA exhibits and alphabetically fc exhibits introduced by the educationa institution). All such original exhibit or documents shall be attached to th original of the transcript. VA sha make photocopies or certified copie and attach them to the copy of th transcript furnished to the educationa institution and the VA Counsel. Th original transcript will accompany th Committee's recommendation to the Director of the VA facility of jurisdic tion along with all exhibits, briefs, o written statements received by th Committee during the course of th proceedings. Such documents should b clearly marked to indicate which wer received into evidence and relied upo by the Committee in making its rec ommendations.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C 3034(a), 3241(a), 3690)

(f) Rule 6. The Committee on Educational Allowances, at its discretion.. may reasonably limit the number of persons appearing at the hearing, including any affected individuals presented as witnesses by VA or the educational institution.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(g) Rule 7. Any person who is presented to testify will be required to be duly placed under oath or affirmation by the Chairperson of the Committee on Educational Allowances. If an official of the educational institution desires to present a statement personally, the individual will be required to be placed under oath or affirmation.

e Chairperson will advise each witss that the Committee understands at he or she is voluntarily appearing fore the Committee; that any testiny or statement given will be conered as being completely voluntary; 4 that no one has authority to retre the individual to make any stateat or answer any question against or her will before the Committee, cept that a person called as a witness behalf of either VA or the eduzonal institution must be willing to mit to cross-examination with reet to testimony given. Each witness I also be advised that his or her tesony or statement, if false, even yugh voluntary, may subject him or to prosecution under Federal stat

athority: 10 U.S.C. 16136(b); 38 U.S.C. Aal, 3241(a), 3690)

1) Rule 9. If the educational instituin fails to timely notify the Comittee of its intent to participate in a earing or if a representative of the iucational institution is scheduled to pear for a hearing but, without good ase, fails to appear either in person by writing, the Committee will proed with the hearing and will review he case on the basis of the evidence of ecord which shall be presented by the A Counsel.

uthority: 10 U.S.C. 16136(b); 38 U.S.C. 34a), 3241(a), 3690)

(Rule 10. Any objection by an auorized representative of the eduational institution or the VA Counsel a ruling by the Chairperson of the Committee on Educational Allowances egarding the admissibility of testimony or other evidence submitted will

be made a matter of record, together with the substance in brief of the testimony intended or other evidence concerned. If the other evidence concerned is in the form of an affidavit or other document, it may be accepted for filing as a future reference if it is later ruled admissible as part of the record of the hearing.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(k) Rule 11. Objections relating to the jurisdiction or membership of the Committee on Educational Allowances or the constitutionality of statutes or the constitutionality of, or statutory authority for, VA regulations, are not before the Committee for decision. The time of the Committee will not be used to hear arguments in this regard. However, any such matters outside the province of the Committee may be the subject of a brief or a letter for consideration by the VA Office of General Counsel upon completion of the hearing. The ruling of such authority upon such issues will be obtained and inIcluded in the record before the Committee's recommendations are submitted to the Director of the VA facility of jurisdiction. If the VA General Counsel's ruling on such legal issues necessitates reopening the proceeding, that shall be done before the Committee makes its recommendations to the Director of the VA facility of jurisdiction.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(m) Rule 13. The hearing will be conducted in an orderly manner with dignity and decorum. The conduct of members of the Committee on Educational Allowances, the VA Counsel, and any representatives of the educational institution shall be characterized by appropriate impartiality, fairness, and cooperation. The Chairperson of the Committee shall take such action as may be necessary, including suspension of the hearing or the removal of the offending person from the

197-135 D-10

hearing room for misbehavior, disorderly conduct, or the persistent disregard of the Chairperson's ruling. Where this occurs, the Chairperson will point out that the Committee is entitled to every possible consideration in order that the case may be presented clearly and fully, which may be accomplished only through observance of orderly procedures.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(n) Rule 14. The Chairperson of the Committee on Educational Allowances will conduct the hearing proceedings in such a manner that will protect from disclosure information which tends to disclose or compromise investigative sources or methods or which would violate the privacy of any individual. The salient facts, which form the basis of charges, may be disclosed and discussed without revealing the source.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(0) Rule 15. At the close of the hearing, the Chairperson of the Committee on Educational Allowances shall inform the appropriate representative of the educational institution that the arguments and the evidence presented will be given careful consideration; and that notice of the decision of the Director of the VA facility of jurisdiction, together with the Committee's recommendations, will be furnished to the educational institution and the VA Counsel at the earliest possible time. The Chairperson will also indicate that notice of the Director's decision will be published in the FEDERAL REGISTER for the information of all other interested persons.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(p) Rule 16. In making its findings of facts and recommendations, the Committee on Educational Allowances will consider only questions which are referred to it by the Director of the VA facility of jurisdiction as being at issue

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(c) Correction of deficiencies. If the Director of the VA facility of jurisdiction believes that the record provided for review is incomplete or for any reason should be reopened, before rendering a decision he or she will order VA staff to gather any additional necessary evidence and will notify the educational institution that it may comment upon the new evidence added. The Director will then notify the educational institution as to whether the matter will be

resubmitted to the Committee on Educational Allowances for further proceedings, on the basis of the new circumstances. If the matter is referred back to the Committee, the Director will defer a decision until he or she has received the Committee's new recommendations based upon all of the evidence of record.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(d) Effective date. If the decision of the Director of the VA facility of jurisdiction is adverse to the educational institution, the decision shall indicate specifically the effective date of each adverse action covered by the decision.

Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

(e) Notification of decision. (1) The Director of the VA facility of jurisdiction shall send a copy of the decision to the educational institution by certified mail, return receipt requested. A copy of the decision also will be provided by regular mail to the institution's legal representative of record, if any. If the decision is adverse to the educational institution, the Director will enclose a notice of the educational institution's right to have the Director, Education Service review the decision.

(2) The Director of the VA facility of jurisdiction will also send a copy of the decision to:

(1) The State approving agency; and (ii) VA Counsel.

(3) The Director of the VA facility of jurisdiction shall post a copy of the decision at the VA facility of jurisdiction. A copy of the decision shall be published in the FEDERAL REGISTER.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

[63 FR 35836, July 1, 1998]

$21.4216 Review of decision of Director of VA facility of jurisdiction. (a) Decision is subject to review by Director, Education Service. A review by the Director, Education Service of a decision of a Director of a VA facility of jurisdiction to terminate payments or disapprove new enrollments or reenrollments, when requested by the educational institution, will be based

on the evidence of record when the Director of the VA facility of jurisdiction made that decision. It will not be de novo in nature and no hearing on review will be held.

(b) Authority of Director, Education Service. The Director, Education Service has the authority to affirm, reverse, or remand the original decision. In the case of such a review, the reviewing official's decision, other than a remand, shall become the final Department decision on the issue presented.

(c) Notice of decision of Director, Education Service is required. Notice of the reviewing official's decision will be provided to the interested parties and published in the FEDERAL REGISTER, in the same manner as is provided in § 21.4215(e) for decisions of the Director of the VA facility of jurisdiction, for the information of all concerned.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3690)

[63 FR 35836, July 1, 1998]

PROGRAMS OF EDUCATION

$21.4232 Specialized vocational training-38 U.S.C. Chapter 35.

(a) Eligibility requirements for specialized vocational training. (1) The Department of Veterans Affairs may provide a program of a specialized course of vocational training to an eligible person who:

(i) Is not in need of special restorative training, and

(ii) Requires specialized vocational training because of a mental or physical handicap.

(2) The counseling psychologist will: (i) After consulting with the Vocational Rehabilation Panel, determine whether such a course is in the best interest of the eligible person; and

(ii) Deny the application for the program when the course is not in the eligible person's best interest.

(3) Both the counseling psychologist and the Vocational Rehabilitation Panel will assist in developing the program, if the counseling psychologist has previously determined that the course is in the eligible person's best interest.

(Authority: 38 U.S.C. 3521, 3536; Pub. L. 99576)

through class attendance and by television concurrently. A farm cooperative program may be approved which consists of a combination of institutional agricultural courses and concurrent agricultural employment (see § 21.4264). A school may contract the actual training to another school or entity, provided the course is approved by the State approving agency having approval jurisdiction of the school or entity which actually provides the training.

(a) Cooperative courses. A full-time program of education consisting of phases of school instruction alternated with training in a business or industrial establishment with such training being strictly supplemental to the school instruction may be approved. Alternating periods may be a part-day in school and a part-day on job or may be such periods which alternate on a

daily, weekly, monthly or on a tel basis. For purposes of approval school offering the course must subn to the State approving agency, with: application, statements of fact showit at least the following:

(1) That the alternate in-school pe ods of the course are at least as long the alternate periods in the business industrial establishment; in det mining this relationship between t two components of the course, traini received in a business or industrial tablishment during a vacation or of cially scheduled school break peri shall be excluded from the calculatic where the course is approved as conti uous part-time work and part-tir study in combination, it shall be mea ured on the basis of the ratio whi each portion of the training bears full time as defined in §21.4270(c) of this part. The institutional portion must at least equivalent to one-half tin training and must be combined with job training portion sufficient for t combined training to equal full time. (Authority: 38 U.S.C. 3482(a)(2) and 3532(b))

(2) That the course is set up as a c operative course in the school catal or other literature of the school;

(3) That the school itself arrange with the employer's establishment fo providing the alternate on-job perioc of training on such basis that the or job portion of the course will be trai ing in a real and substantial sense an will supplement the in-school portio of the course;

(4) That the school arranges directly with the employer's establishment fo placing the individual student in tha establishment and exercises super vision and control over the student' activities at the establishment to al extent that assures training in a tru sense to the student; and

(5) That the school grants credit for the on-job portion of the course for completion of a part of the work required for granting a degree or di ploma.

(Authority: 38 U.S.C. 3482(a)(2) and 3532(b))

(b) Concurrent enrollment. Where a veteran or eligible person cannot successfully schedule his or her complete program at one school, a program of