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comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate. (29 F.R. 16298, Dec. 4, 1964, as amended at 32 F.R. 14556, Oct. 19, 1967) § 80.9 Hearings.

(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by $ 80.8(c), 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 or such notice within which the applicant or recipient may request of the res asible Department official 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 paragraph 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 $ 80.8 (c) 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 Washi ton, D.C., at a time fixed by the responsible Department official unless he determines that the convenience of the applicant or recipient or of the Department requires that annother place be selected. Hearings shall be held 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 ad. ministrative review thereof shall be conducted in conformity with 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. Any person (other than a Government employee considered to be on official business) who, having been invited or requested to appear and testify as a witness on the Government's behalf, attends at a time and place scheduled for a hearing provided for by this part, may be reimbursed for his travel and actual expenses of attendance in an amount not to exceed the amount payable under the standardized travel regulations to Government employee traveling on official business.

(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 regulation with re

a

spect to two or more programs to which (c) Decisions on record where a hearing this part applies, or noncompliance with is waived. Whenever a hearing is waived this part and the regulations of one or pursuant to $ 80.9(a) the reviewing aumore other Federal departments or agen thority shall make its final decision on cies issued under Title VI of the Act, the the record or refer the matter to a hearresponsible Department official may, by ing examiner for an initial decision to be agreement with such other departments made on the record. A copy of such deor agencies where applicable, provide for cision shall be given in writing to the the conduct of consolidated or joint applicant or recipient, and to the comhearings, and for the application to such plainant, if any. hearings of rules of procedures not in (d) Rulings required. Each decision of consistent with this part. Final decisions a hearing examiner or reviewing authorin such cases, insofar as this regulation ity shall set forth a ruling on each findis concerned, shall be made in accordance ing, conclusion, or exception presented, with $ 80.10.

and shall identify the requirement or re(29 F.R. 16298, Dec. 4, 1964, as amended at quirements imposed by or pursuant to 32 F.R. 14555, Oct. 19, 1967)

this part with which it is found that 80.10 Decisions and notices.

the applicant or recipient has failed to

comply. (a) Decisions by hearing examiners.

(e) Review in certain cases by the After a hearing is held by a hearing ex

Secretary. If the Secretary has not peraminer such hearing examiner shall

sonally made the final decision referred either make an initial decision, if so au

to in paragraph (a), (b), or (c) of this thorized, or certify the entire record in

section, a recipient or applicant or the cluding his recommended findings and

counsel for the Department may request proposed decision to the reviewing au

the Secretary to review it in accordance thority for a final decision, and a copy

with rules of procedure issued by the reof such initial decision or certification

sponsible Department official. Such reshall be mailed to the applicant or re

view is not a matter of right and shall be cipient and to the complainant, if any.

granted only where the Secretary deterWhere the initial decision referred to in

mines there are special and important this paragraph or in paragraph (c) of reasons therefor. The Secretary may this section is made by the hearing ex grant or deny such request, in whole or aminer, the applicant or recipient or the in part. He may also review such a decicounsel for the Department may, within

sion upon his own motion in accordance the period provided for in the rules of with rules of procedure issued by the procedure issued by the responsible De responsible Department official. In the partment official, file with the reviewing absence of a review under this paraauthority exceptions to the initial deci graph, a final decision referred to in sion, with his reasons therefor. Upon paragraph (a), (b), or (c) of this section the filing of such exceptions the review shall become the final decision of the ing authority shall review the initial de

Department when the Secretary transcision and issue its own decision thereof mits it as such to Congressional comincluding the reasons therefor. In the mittees with the report required under absence of exceptions the initial decision section 602 of the Act. Failure of an apshall constitute the final decision, sub plicant or recipient to request review ject to the provisions of paragraph (e) under this paragraph shall not be deemed of this section.

a failure to exhaust administrative rem(b) Decisions on record or review by edies for the purpose of obtaining judithe reviewing authority. Whenever a rec cial review. ord is certified to the reviewing authority (f) Content of orders. The final deci. for decision or it reviews the decision of sion may provide for suspension or tera hearing examiner pursuant to para

mination of, or refusal to grant or graph (a) or (c) of this section, the ap

continue Federal financial assistance, in

whole or in part, under the program inplicant or recipient shall be given rea

volved, and may contain such terms, consonable opportunity to file with it briefs

ditions, and other provisions as are or other written statements of its con

consistent with and will effectuate the tentions, and a copy of the final decision

purposes of the Act and this part, inof the reviewing authority shall be given cluding provisions designed to assure that in writing to the applicant or recipient no Federal financial assistance will and to the complainant, if any.

thereafter be extended under such pro

gram to the applicant or recipient de (4) The pendency of any proceeding termined by such decision to be in under this paragraph shall not lift or default in its performance of an assur stay the sanctions imposed by the order ance given by it pursuant to this part, issued under paragraph (f) of this or to have otherwise failed to comply section. with this part, unless and until it cor (29 F.R. 16298, Dec. 4, 1964, as amended at rects its noncompliance and satisfies the 32 F.R. 14555, Oct. 19, 1967] responsible Department official that it

$ 80.11 Judicial review. will fully comply with this part. (g) Post-termination proceedings. (1)

Action taken pursuant to section 602 An applicant or recipient adversely af

of the Act is subject to judicial review fected by an order issued under para

as provided in section 603 of the Act. graph (f) of this section shall be restored (Sec. 603, Civil Rights Act of 1964, 78 Stat. to full eligibility to receive Federal fi 253; 42 U.S.C. 2000d-2) [29 F.R. 16298, Dec. 4,

1964, as amended at 32 F.R. 14555, Oct. 19, nancial assistance if it satisfies the terms

1967] and conditions of that order for such eligibility or if it brings itself into com § 80.12 Effect on other regulations; pliance with this part and provides forms and instructions. reasonable assurance that it will fully (a) Effect on other regulations. All comply with this part. An elemen

regulations, orders, or like directions tary or secondary school or school sys

heretofore issued by any officer of the tem which is unable to file an assurance Department which impose requirements of compliance with $ 80.3 shall be re

designed to prohibit any discrimination stored to full eligibility to receive Federal

against individuals on the ground of race, financial assistance, if it files a court color, or national origin under any proorder or a plan for desegregation which

gram to which this part applies, and meets the requirements of $ 80.4 (c), and

which authorize the suspension or termiprovides reasonable assurance that it

nation of or refusal to grant or to conwill comply with the court order or plan.

tinue Federal financial assistance to any (2) Any applicant or recipient ad

applicant for or recipient of such assistversely affected by an order entered pur

ance under such program for failure to suant to paragraph (f) of this section

comply with such requirements, are may at any time request the responsible

hereby superseded to the extent that Departinent official to restore fully its

such discrimination is prohibited by this eligibility to receive Federal financial as

part, except that nothing in this part sistance. Any such request shall be sup shall be deemed to relieve any person of ported by information showing that the

any obligation assumed or imposed under applicant or recipient has met the re

any such superseded regulation, order, quirements of subparagraph (1) of this

instruction, or like direction prior to the paragraph. If the responsible Depart

effective date of this part. Nothing in ment official determines that those re

this part, however, shall be deemed to quirements have been satisfied, he shall

supersede any of the following (includrestore such eligibility.

ing future amendments thereof); (1) (3) If the responsible Department of

the "Standards for a Merit System of ficial denies any such request, the ap

Personnel Administration," issued jointly plicant or recipient may submit a request

by the Secretaries of Defense, of Health, for a hearing in writing, specifying why

Education, and Welfare, and of Labor, 28 it believes such official to have been in F.R. 734, or (2) Executive Order 11063 error. It shall thereupon be given an and regulations issued thereunder, or any expeditious hearing, with a decision on other regulations or instructions, insofar the record, in accordance with rules of as such Order, regulations, or instrucprocedure issued by the responsible De tions prohibit discrimination on the partment official. The applicant or recip

ground of race, color, or national origin ient will be restored to such eligibility if

in any program or situation to which this it proves at such hearing that it satisfied part is inapplicable, or prohibit discrim

ination on any other ground. the requirements of subparagraph (1)

(b) Forms and instructions. The reof this paragraph. While proceedings

sponsible Department official shall issue under this paragraph are pending, the

and promptly make available to intersanctions imposed by the order issued

ested persons forms and detailed instrucunder paragraph (f) of this section shall

tions and procedures for effectuating this remain in effect.

part.

(c) Supervision and coordination. or transient basis), Federal property or The Secretary may from time to time any interest in such property without assign to officials of the Department, or consideration or at a nominal considerto officials of other departments or agen ation, or at a consideration which is recies of the Government with the consent duced for the purpose of assisting the of such departments or agencies, respon recipient, or in recognition of the public sibilities in connection with the effectua interest to be served by such sale or tion of the purposes of title VI of the lease to the recipient, and (5) any FedAct and this part (other than responsi eral agreement, arrangement, or other bility for review as provided in $ 80.10(e), contract which has as one of its purposes including the achievement of effective the provision of assistance. coordination and maximum uniformity (g) The term “program" includes any within the Department and within the program, project, or activity for the proExecutive Branch of the Government in vision of services, financial aid, or other the application of title VI and this part benefits to individuals (including educato similar programs and in similar tion or training, health, welfare, resituations.

habilitation, housing, or other services, [29 F.R. 16298, Dec. 4, 1964, as amended at whether provided through employees of 32 F.R. 14555, Oct. 19, 1967)

the recipient of Federal financial as$ 80.13 Definitions.

sistance or provided by others through

contracts or other arrangements with As used in this part

the recipient, and including work op(a) The term "Department" means portunities and cash or loan or other asthe Department of Health, Education, sistance to individuals), or for the proviand Welfare, and includes each of its sion of facilities for furnishing services, operating agencies and other organiza financial aid or other benefits to individtional units.

uals. The services, financial aid, or other (b) The term "Secretary" means the

benefits provided under a program reSecretary of Health, Education, and

ceiving Federal financial assistance shall Welfare.

be deemed to include any services, finan(c) The term "responsible Depart cial aid, or other benefits provided with ment official” means the Secretary or, the aid of Federal financial assistance or to the extent of any delegation by the with the aid of any non-Federal funds, Secretary of authority to act in his

property, or other resources required to stead under any one or more provisions be expended or made available for the of this part, any person or persons to program to meet matching requirements whom the Secretary has heretofore dele or other conditions which must be met gated, or to whom the Secretary may in order to receive the Federal financial hereafter delegate such authority. assistance, and to include any services,

(d) The term "reviewing authority" financial aid, or other benefits provided means the Secretary, or any person or in or through a facility provided with persons (including a board or other body the aid of Federal financial assistance specially created for that purpose and or such non-Federal resources. also including the responsible Depart (h) The term "facility” includes all or ment official) acting pursuant to author any portion of structures, equipment, or ity delegated by the Secretary to carry other real or personal property or interout responsibilities under $ 80.10 (a)-(d). ests therein, and the provision of facili

(e) The term “United States" means ties includes the construction, expansion, the States of the United States, the Dis renovation, remodeling, alteration or trict of Columbia, Puerto Rico, the Virgin acquisition of facilities. Islands, American Samoa, Guam, Wake (i) The term “recipient” means any Island, the Canal Zone, and the terri

State, political subdivision of any State, tories and possessions of the United

or instrumentality of any State or politStates, and the term "State" means any

ical subdivision, any public or private one of the foregoing.

agency, institution, or organization, or (f) The term "Federal financial as

other entity, or any individual, in any sistance" includes (1) grants and loans

State, to whom Federal financial asof Federal funds, (2) the grant or donation of Federal property and interests

sistance is extended, directly or through in property, (3) the detail of Federal per

another recipient, for any program, insonnel, (4) the sale and lease of, and the cluding any successor, assign, or transpermission to use (on other than a casual feree thereof, but such term does not

107

include any ultimate beneficiary under any such program.

(j) The term "primary recipient” means any recipient which is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program.

(k) The term “applicant” means one who submits an application, request, or plan required to be approved by a Department official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term "application" means such an application, request, or plan. [29 F.R. 16298, Dec. 4, 1964, as amended at 32 F.R. 14555, Oct. 19, 1967)

APPENDIX A PROGRAMS TO WHICH THIS PART APPLIES Part 1. Programs other than State-administered continuing programs.

1. Experimental hospital facilities (sec. 624, Public Health Service Act, 42 U.S.C. 291n).

2. Health research facilities (title VII, part A, Public Health Service Act, 42 U.S.C. 292–2921).

3. Teaching facilities for medical, dental, and other health personnel (title VII, part B, Public Health Service Act, 42 U.S.C. 293– 293h; secs. 801-804, Public Health Service Act, 42 U.S.C. 296, 296a-c).

4. Mental retardation research facilities (title VII, part D, Public Health Service Act, 42 U.S.C. 295–295e).

5. University affiliated mental retardation facilities (part B, Mental Retardation Facilities Construction Act, 42 U.S.C. 2661-2665).

6. Heart disease laboratories and related facilities for patient care (sec. 412(d), Public Health Service Act, 42 U.S.C. 287a(d)).

7. Municipal sewage treatment works (sec. 6, Federal Water Pollution Control Act, 33 U.S.C. 466e).

8. Loans for acquisition of science, mathematics, and foreign language equipment (title III, National Defense Education Act, 20 U.S.C. 445).

9. Construction of facilities for institutions of higher education (Higher Education Facilities Act, 20 U.S.C. 701-757).

10. School construction in Federallyaffected areas (20 U.S.C. 631-645).

11. Educational television broadcasting facilities (47 U.S.C. 390–397).

12. Surplus real and related personal property disposal (40 U.S.C. 484(k)).

13. George Washington University Hospital construction (76 Stat. 83, P.L. 87–460, May 31, 1962).

14. Loan service of captioned films for the deaf (42 U.S.C. 2491-2494).

15. Residential vocational education schools (20 U.S.C. 352).

APPENDIX A-Continued PROGRAMS TO WHICH THIS PART APPLIES—Con.

Part 1. Programs other than State-admin. istered continuing programs-Continued

16. Department projects under the Public Works Acceleration Act (42 U.S.C. 2642).

17. Research projects, including conferences, communication activities and primate or other center grants (secs. 301, 303, 308, 624, Public Health Service Act, 42 U.S.C. 241, 242a, 2428, 291n; sec. 4, Federal Water Pollution Control Act, 33 U.S.C. 466c; sec. 3, Clean Air Act, 42 U.S.C. 1857b).

18. General research support (sec. 301(d). Public Health Service Act, 42 U.S.C. 241).

19. Community health studies and demon. strations (sec. 316, Public Health Service Act, 42 U.S.C. 247a).

20. Mental health demonstrations and administrative studies (sec. 303(a) (2), Public Health Service Act, 42 U.S.C. 242a).

21. Migratory workers health services (sec. 310, 76 Stat. 592, 42 U.S.C. 242h).

22. Intensive vaccination projects (sec. 317, Public Health Service Act, 42 U.S.C. 247b).

23. Tuberculosis and venereal disease control projects (current appropriation Act, P.L. 88–605).

24. Air pollution demonstration and survey projects and control programs (secs. 3 and 4, Clean Air Act, 42 U.S.C. 1857b, 1857c).

25. Water pollution demonstration grants (sec. 4(a) (2), Federal Water Pollution Control Act, 33 U.S.C. 466c).

26. Health research training projects and fellowship grants (secs. 301, 433, Public Health Service Act, 42 U.S.C. 241, 289c).

27. Categorical (heart, cancer, air pollution, etc.) grants for training, traineeships or fellowships (secs. 303, 433, etc., Public Health Service Act, 42 U.S.C. 242a, 289c, etc.; sec. 3, Clean Air Act, 42 U.S.C. 1857b; sec. 4, Federal Water Pollution Control Act, 33 U.S.C. 466c).

28. Advanced professional nurse traineeships, improvement in nurse training and partial reimbursement to diploma schools of nursing (secs. 805, 806, 821, Public Health Service Act, 42 U.S.C. 296d, 296, 297).

29. Grants to institutions for traineeships for professional public health personnel (sec, 306, Public Health Service Act, 42 U.S.C. 242d).

30. Grants to schools for specialized training in public health (sec. 309, 42 U.S.C. 242g).

31. Grants for special vocational rehabilitation projects (sec. 4, Vocational Rehabili. tation Act, 29 U.S.C. 34).

32. Experimental, pilot or demonstration projects to promote the objectives of title I, IV, X, XIV, or XVI of the Social Security Act (sec. 1115, Social Security Act, 42 U.S.C. 1315).

33. Social security and welfare cooperative research or demonstration projects (sec. 1110, Social Security Act, 42 U.S.C. 1310).

34. Child welfare research, training or demonstration projects (sec. 526, Social Security Act, 42 U.S.C. 726).

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