[Federal Register: April 12, 2004 (Volume 69, Number 70)]
[Rules and Regulations]
[Page 19110-19116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ap04-9]
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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Part 1206
Grants and Contracts: Suspension and Termination and Denial of
Application for Refunding; Correction Technical Amendments and
Reinstatement
AGENCY: Corporation for National and Community Service.
ACTION: Final rule.
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SUMMARY: The Corporation for National and Community Service published
in the Federal Register of March 27, 2003, a document removing obsolete
regulations from 45 CFR Chapter XII. Inadvertently, part 1206
concerning procedures for suspension, termination, and denial of
refunding of grants and contracts was removed. This document reinstates
part 1206 in its entirety as part of 45 CFR Chapter XII and corrects
the nonsubstantive errors found in the original text. It makes no
changes to the original part 1206 other than substituting Corporation
positions for the now obsolete ACTION agency positions.
DATES: Effective April 12, 2004.
FOR FURTHER INFORMATION CONTACT: Britanya Rapp, Associate General
Counsel, Corporation for National and Community Service, telephone:
202-606-5000, ext. 258; TDD: 800-833-3722; Internet e-mail address:
brapp@cns.gov.
SUPPLEMENTARY INFORMATION: The ACTION agency promulgated a regulation
at part 1206 addressing the termination, suspension, and denial of
refunding of programs funded under the Domestic Volunteer Service Act
of 1973, as amended. The Corporation published a document in the
Federal Register of March 27, 2003, (68 FR 14901) inadvertently
removing part 1206. This correction adds part 1206 and replaces the
obsolete references to the ACTION agency with references to the
Corporation, its departments and offices, officials, and employees.
List of Subjects in 45 CFR Part 1206
Community action programs, Grant programs--social programs.
Dated: April 6, 2004.
Frank R. Trinity,
General Counsel.
0
Accordingly, and under the authority of 42 U.S.C. 12561 and for the
reasons stated in the preamble, the Corporation reinstates part 1206 in
45 CFR chapter XII as follows:
PART 1206--GRANTS AND CONTRACTS--SUSPENSION AND TERMINATION AND
DENIAL OF APPLICATION FOR REFUNDING
Subpart A--Suspension and Termination of Assistance
Sec.
1206.1-1 Purpose and scope.
1206.1-2 Application of this part.
1206.1-3 Definitions.
1206.1-4 Suspension.
1206.1-5 Termination.
1206.1-6 Time and place of termination hearings.
1206.1-7 Termination hearing procedures.
1206.1-8 Decisions and notices regarding termination.
1206.1-9 Right to counsel; travel expenses.
1206.1-10 Modification of procedures by consent.
1206.1-11 Other remedies.
Subpart B--Denial of Application for Refunding
1206.2-1 Applicability of this subpart.
1206.2-2 Purpose.
1206.2-3 Definitions.
1206.2-4 Procedures.
1206.2-5 Right to counsel.
Authority: 42 U.S.C. 5052.
Subpart A--Suspension and Termination of Assistance
Sec. 1206.1-1 Purpose and scope.
(a) This subpart establishes rules and review procedures for the
suspension and termination of assistance of National Senior Service
Corps and AmeriCorps*VISTA grants of assistance provided by the
Corporation for National and Community Service pursuant to sections of
titles I and II of the Domestic Volunteer Service Act of 1973, 87 Stat.
394, Pub. L. 93-113, (hereinafter the DVSA) because a recipient failed
to materially comply with the terms and conditions of any grant or
contract providing assistance under these sections of the DVSA,
including applicable laws, regulations, issued program guidelines,
instructions, grant conditions or approved work programs.
(b) However, this subpart shall not apply to any administrative
action of the Corporation for National and Community Service based upon
any violation, or alleged violation, of title VI of the Civil Rights
Act of 1964 and sections 417(a) and (b) of Pub. L. 93-113 relating to
nondiscrimination. In the case of any such violation or alleged
violation other provisions of this chapter shall apply.
Sec. 1206.1-2 Application of this part.
This subpart applies to programs authorized under titles I and II
of the DVSA.
Sec. 1206.1-3 Definitions.
As used in this subpart--
(a) The term Corporation means the Corporation for National and
Community Service established pursuant to 42 U.S.C. 12651 and includes
each Corporation State Office and Service Center.
(b) The term CEO means the Chief Executive Officer of the
Corporation.
(c) The term responsible Corporation official means the CEO, Chief
Financial Officer, the Director of the National Senior Service Corps
programs, the Director of the AmeriCorps*VISTA program, the appropriate
Service Center
[[Page 19111]]
Director and any Corporation Headquarters or State office official who
is authorized to make the grant of assistance in question. In addition
to the foregoing officials, in the case of the suspension proceedings
described in Sec. 1206.1-4, the term ``responsible Corporation
official'' shall also include a designee of a Corporation official who
is authorized to make the grant of assistance in question.
(d) The term assistance means assistance under titles I and II of
the DVSA in the form of grants or contracts involving Federal funds for
the administration of which the Directors of the National Senior
Service Corps and AmeriCorps*VISTA have primary responsibility.
(e) The term recipient means a public or private agency,
institution or organization or a State or other political jurisdiction
which has received financial assistance under titles I and II of the
DVSA. The term ``recipient'' does not include individuals who
ultimately receive benefits under any DVSA program of assistance or
National Senior Service Corps volunteers or AmeriCorps*VISTA members
participating in any program.
(f) The term agency means a public or private agency, institution,
or organization or a State or other political jurisdiction with which
the recipient has entered into an arrangement, contract or agreement to
assist in its carrying out of the development, conduct and
administration of all or part of a project assisted under titles I and
II.
(g) The term party in the case of a termination hearing means the
Corporation, the recipient concerned, and any other agency or
organization which has a right or which has been granted permission by
the presiding officer to participate in a hearing concerning
termination of financial assistance to the recipient pursuant to Sec.
1206.1-5(e).
(h) The term termination means any action permanently terminating
or curtailing assistance to all or any part of a program prior to the
time that such assistance is concluded by the grant or contract terms
and conditions, but does not include the refusal to provide new or
additional assistance.
(i) The term suspension means any action temporarily suspending or
curtailing assistance in whole or in part, to all or any part of a
program, prior to the time that such assistance is concluded by the
grant or contract terms and conditions, but does not include the
refusal to provide new or additional assistance.
Sec. 1206.1-4 Suspension.
(a) General. The responsible Corporation official may suspend
financial assistance to a recipient in whole or in part for a material
failure or threatened material failure to comply with any requirement
stated in Sec. 1206.1-1. Such suspension shall be pursuant to notice
and opportunity to show cause why assistance should not be suspended as
provided in paragraph (b) of this section. However, in emergency cases,
where the responsible Corporation official determines summary action is
appropriate, the alternative summary procedure of paragraph (c) of this
section shall be followed.
(b) Suspension on notice. (1) Except as provided in paragraph (c)
of this section, the procedure for suspension shall be on notice of
intent to suspend as hereinafter provided.
(2) The responsible Corporation official shall notify the recipient
by letter or by telegram that the Corporation intends to suspend
assistance in whole or in part unless good cause is shown why
assistance should not be suspended. In such letter or telegram the
responsible Corporation official shall specify the grounds for the
proposed suspension and the proposed effective date of the suspension.
(3) The responsible Corporation official shall also inform the
recipient of its right to submit written material in opposition to the
intended suspension and of its right to request an informal meeting at
which the recipient may respond and attempt to show why such suspension
should not occur. The period of time within which the recipient may
submit such written material or request the informal meeting shall be
established by the responsible Corporation official in the notice of
intent to suspend. However, in no event shall the period of time within
which the recipient must submit written material or request such a
meeting be less than 5 days after the notice of intent to suspend
assistance has been sent. If the recipient requests a meeting, the
responsible Corporation official shall fix a time and place for the
meeting, which shall not be less than 5 days after the recipient's
request is received by the Corporation.
(4) In lieu of the provisions of paragraph (b)(3) of this section
dealing with the right of the recipient to request an informal meeting,
the responsible Corporation official may on his own initiative
establish a time and place for such a meeting and notify the recipient
in writing or by telegram. However, in no event shall such a meeting be
scheduled less than seven days after the notice of intent to suspend
assistance is sent to the recipient.
(5) The responsible Corporation official may in his discretion
extend the period of time or date referred to in the previous
paragraphs of this section and shall notify the recipient in writing or
by telegram of any such extension.
(6) At the time the responsible Corporation official sends the
notification referred to in paragraphs (b) (2), (3), and (4) of this
section to the recipient, he shall also send a copy of it to any agency
whose activities or failures to act have substantially contributed to
the proposed suspension, and shall inform such agency that it is
entitled to submit written material or to participate in the informal
meeting referred to in paragraphs (b) (3) and (4) of this section. In
addition the responsible Corporation official may in his discretion
give such notice to any other agency.
(7) Within 3 days of receipt of the notice referred to in
paragraphs (b) (2), (3), and (4) of this section, the recipient shall
send a copy of such notice and a copy of these regulations to all
agencies which would be financially affected by the proposed suspension
action. Any agency that wishes to submit written material may do so
within the time stated in the notice. Any agency that wishes to
participate in the informal meeting with the responsible Corporation
official contemplated herein may request permission to do so from the
responsible Corporation official, who may in his discretion grant or
deny such permission. In acting upon any such request from an agency,
the responsible Corporation official shall take into account the effect
of the proposed suspension on the particular agency, the extent to
which the meeting would become unduly complicated as a result of
granting such permission, and the extent to which the interests of the
agency requesting such permission appear to be adequately represented
by other participants.
(8) In the notice of intent to suspend assistance the responsible
Corporation official shall invite voluntary action to adequately
correct the deficiency which led to the initiation of the suspension
proceeding.
(9) The responsible Corporation official shall consider any timely
material presented to him in writing, any material presented to him
during the course of the informal meeting provided for in paragraphs
(b)(3) and (4) of this section as well as any showing that the
recipient has adequately corrected the deficiency which led to the
initiation of suspension proceedings. If after considering the
[[Page 19112]]
material presented to him the responsible Corporation official
concludes the recipient has failed to show cause why assistance should
not be suspended, he may suspend assistance in whole or in part and
under such terms and conditions as he shall specify.
(10) Notice of such suspension shall be promptly transmitted to the
recipient and shall become effective upon delivery. Suspension shall
not exceed 30 days unless during such period of time termination
proceedings are initiated in accordance with Sec. 1206.1-5, or unless
the responsible Corporation official and the recipient agree to a
continuation of the suspension for an additional period of time. If
termination proceedings are initiated, the suspension of assistance
shall remain in full force and effect until such proceedings have been
fully concluded.
(11) During a period of suspension no new expenditures shall be
made and no new obligations shall be incurred in connection with the
suspended program except as specifically authorized in writing by the
responsible Corporation official. Expenditures to fulfill legally
enforceable commitments made prior to the notice of suspension, in good
faith and in accordance with the recipient's approved work program, and
not in anticipation of suspension or termination, shall not be
considered new expenditures. However, funds shall not be recognized as
committed solely because the recipient has obligated them by contract
or otherwise to an agency.
Note: Willful misapplication of funds may violate Federal
criminal statutes.
(12) The responsible Corporation official may in his discretion
modify the terms, conditions and nature of the suspension or rescind
the suspension action at any time on his own initiative or upon a
showing satisfactory to him that the recipient had adequately corrected
the deficiency which led to the suspension and that repetition is not
threatened. Suspensions partly or fully rescinded may, in the
discretion of the responsible Corporation official be reimposed with or
without further proceedings: Provided however, That the total time of
suspension may not exceed 30 days unless termination proceedings are
initiated in accordance with Sec. 1206.1-5 or unless the responsible
Corporation official and the recipient agree to a continuation of the
suspension for an additional period of time. If termination proceedings
are initiated, the suspension of assistance shall remain in full force
and effect until such proceedings have been fully concluded.
(c) Summary suspension. (1) The responsible Corporation official
may suspend assistance without the prior notice and opportunity to show
cause provided in paragraph (b) of this section if he determines in his
discretion that immediate suspension is necessary because of a serious
risk of:
(i) Substantial injury to or loss of project funds or property, or
(ii) Violation of a Federal, State or local criminal statute, or
(iii) Violation of section 403 of the DVSA or of Corporation rules,
regulations, guidelines and instructions implementing this section of
the DVSA, and that such risk is sufficiently serious to outweigh the
general policy in favor of advance notice and opportunity to show
cause.
(2) Notice of summary suspension shall be given to the recipient by
letter or by telegram, shall become effective upon delivery to the
recipient, and shall specifically advise the recipient of the effective
date of the suspension and the extent, terms, and condition of any
partial suspension. The notice shall also forbid the recipient to make
any new expenditures or incur any new obligations in connection with
the suspended portion of the program. Expenditures to fulfill legally
enforceable commitments made prior to the notice of suspension, in good
faith and in accordance with the recipient's approved work program, and
not in anticipation of suspension or termination, shall not be
considered new expenditures. However, funds shall not be recognized as
committed by a recipient solely because the recipient obligated them by
contract or otherwise to an agency. (See note under paragraph (b)(11)
of this section.)
(3) In the notice of summary suspension the responsible Corporation
official shall advise the recipient that it may request the Corporation
to provide it with an opportunity to show cause why the summary
suspension should be rescinded. If the recipient requests such an
opportunity, the responsible Corporation official shall immediately
inform the recipient in writing of the specific grounds for the
suspension and shall within 7 days after receiving such request from
the recipient hold an informal meeting at which the recipient may show
cause why the summary suspension should be rescinded. Notwithstanding
the provisions of this paragraph, the responsible Corporation official
may proceed to initiate termination proceedings at any time even though
assistance to the recipient has been suspended in whole or in part. In
the event that termination proceedings are initiated, the responsible
Corporation official shall nevertheless afford the recipient, if it so
requests, an opportunity to show cause why suspension should be
rescinded pending the outcome of the termination proceedings.
(4) Copies of the notice of summary suspension shall be furnished
by the recipient to agencies in the same manner as notices of intent to
suspend as set forth in paragraphs (b)(6), (7), and (8) of this
section. Agencies may submit written material to the responsible
Corporation official or to participate in the informal meeting as in
the case of intended suspension proceedings set forth in paragraphs
(b)(6) and (7) of this section.
(5) The effective period of a summary suspension of assistance may
not exceed 30 days unless termination proceedings are initiated in
accordance with Sec. 1206.1-5, or unless the parties agree to a
continuation of summary suspension for an additional period of time, or
unless the recipient, in accordance with paragraph (c)(3) of this
section, requests an opportunity to show cause why the summary
suspension should be rescinded.
(6) If the recipient requests an opportunity to show cause why a
summary suspension action should be rescinded the suspension of
assistance shall continue in effect until the recipient has been
afforded such opportunity and a decision has been made. Such a decision
shall be made within 5 days after the conclusion of the informal
meeting referred to in paragraph (c)(3) of this section. If the
responsible Corporation official concludes, after considering all
material submitted to him, that the recipient has failed to show cause
why the suspension should be rescinded, the responsible Corporation
official may continue the suspension in effect for an additional 7
days: Provided however, That if termination proceedings are initiated,
the summary suspension of assistance shall remain in full force and
effect until all termination proceedings have been fully concluded.
Sec. 1206.1-5 Termination.
(a) If the responsible Corporation official believes that an
alleged failure to comply with any requirement stated in Sec. 1206.1-1
may be sufficiently serious to warrant termination of assistance,
whether or not assistance has been suspended, he shall so notify the
recipient by letter or telegram. The notice shall state that there
appear to be grounds which warrant terminating the assistance and shall
set forth the specific reasons therefore. If the reasons result in
whole or substantial part from
[[Page 19113]]
the activities of an agency other than the grantee, the notice shall
identify that agency. The notice shall also advise the recipient that
the matter has been set down for hearing at a stated time and place, in
accordance with Sec. 1206.1-6. In the alternative the notice shall
advise the recipient of its right to request a hearing and shall fix a
period of time which shall not be less than 10 days in which the
recipient may request such a hearing.
(b) Termination hearings shall be conducted in accordance with the
provision of Sec. Sec. 1206.1-7 and 1206.1-8. They shall be scheduled
for the earliest practicable date, but not later than 30 days after a
recipient has requested such a hearing in writing or by telegram.
Consideration shall be given to a request by a recipient to advance or
postpone the date of a hearing scheduled by the Corporation. Any such
hearing shall afford the recipient a full and fair opportunity to
demonstrate that it is in compliance with requirements specified in
Sec. 1206.1-1. In any termination hearing, the Corporation shall have
the burden of justifying the proposed termination action. However, if
the basis of the proposed termination is the failure of a recipient to
take action required by law, regulation, or other requirement specified
in Sec. 1206.1-1, the recipient shall have the burden of proving that
such action was timely taken.
(c) If a recipient requests the Corporation to hold a hearing in
accordance with paragraph (a) of this section, it shall send a copy of
its request for such a hearing to all agencies which would be
financially affected by the termination of assistance and to each
agency identified in the notice pursuant to paragraph (a) of this
section. This material shall be sent to these agencies at the same time
the recipient's request is made to the Corporation. The recipient shall
promptly send to the Corporation a list of the agencies to which it has
sent such material and the date on which it was sent.
(d) If the responsible Corporation official pursuant to paragraph
(a) of this section informs a recipient that a proposed termination
action has been set for hearing, the recipient shall within 5 days of
its receipt of this notice send a copy of it to all agencies which
would be financially affected by the termination and to each agency
identified in the notice pursuant to paragraph (a) of this section. The
recipient shall send the responsible Corporation official a list of all
agencies notified and the date of notification.
(e) If the responsible Corporation official has initiated
termination proceedings because of the activities of an agency, that
agency may participate in the hearing as a matter of right. Any other
agency, person, or organization that wishes to participate in the
hearing may, in accordance with Sec. 1206.1-7(d), request permission
to do so from the presiding officer of the hearing. Such participation
shall not, without the consent of the Corporation and the recipient,
alter the time limitations for the delivery of papers or other
procedures set forth in this section.
(f) The results of the proceeding and any subsequent measure taken
by the Corporation pursuant to this part shall be fully binding upon
the recipient and all agencies whether or not they actually
participated in the hearing.
(g) A recipient may waive a hearing by notice to the responsible
Corporation official in writing and submit written information and
argument for the record. Such material shall be submitted to the
responsible Corporation official within a reasonable period of time to
be fixed by him upon the request of the recipient. The failure of a
recipient to request a hearing, or to appear at a hearing for which a
date has been set, unless excused for good cause, shall be deemed a
waiver of the right to a hearing and consent to the making of a
decision on the basis of such information as is then in the possession
of the Corporation.
(h) The responsible Corporation official may attempt, either
personally or through a representative, to resolve the issues in
dispute by informal means prior to the date of any applicable hearing.
Sec. 1206.1-6 Time and place of termination hearings.
The termination hearing shall be held in Washington, DC, or in the
appropriate Service Center or Corporation State Office, at a time and
place fixed by the responsible Corporation official unless he
determines that for the convenience of the Corporation, or of the
parties or their representatives, requires that another place be
selected.
Sec. 1206.1-7 Termination hearing procedures.
(a) General. The termination hearing, decision, and any review
shall be conducted in accordance with the rules of procedure in this
section and Sec. Sec. 1206.1-8 and 1206.1-9.
(b) Presiding officer. (1) The presiding officer at the hearing
shall be the responsible Corporation official or, at the discretion of
the responsible Corporation official, an independent hearing examiner
designated as promptly as possible in accordance with section 3105 of
title 5 of the United States Code. The presiding officer shall conduct
a full and fair hearing, avoid delay, maintain order, and make a
sufficient record for a full and true disclosure of the facts and
issues. To accomplish these ends, the presiding officer shall have all
powers authorized by law, and he may make all procedural and
evidentiary rulings necessary for the conduct of the hearing. The
hearing shall be open to the public unless the presiding officer for
good cause shown shall otherwise determine.
(2) After the notice described in paragraph (f) of this section is
filed with the presiding officer, he shall not consult any person or
party on a fact in issue unless on written notice and opportunity for
all parties to participate. However, in performing his functions under
this part the presiding officer may use the assistance and advice of an
attorney designated by the General Counsel of the Corporation:
Provided, That the attorney designated to assist him has not
represented the Corporation or any other party or otherwise
participated in a proceeding, recommendation, or decision in the
particular matter.
(c) Presentation of evidence. Both the Corporation and the
recipient are entitled to present their case by oral or documentary
evidence, to submit rebuttal evidence and to conduct such examination
and cross-examination as may be required for a full and true disclosure
of all facts bearing on the issues. The issues shall be those stated in
the notice required to be filed by paragraph (f) of this section, those
stipulated in a prehearing conference or those agreed to by the
parties.
(d) Participation. (1) In addition to the Corporation, the
recipient, and any agency which has a right to appear, the presiding
officer in his discretion may permit the participation in the
proceedings of such persons or organizations as he deems necessary for
a proper determination of the issues involved. Such participation may
be limited to those issues or activities which the presiding officer
believes will meet the needs of the proceeding, and may be limited to
the filing of written material.
(2) Any person or organization that wishes to participate in a
proceeding may apply for permission to do so from the presiding
officer. This application, which shall be made as soon as possible
after the notice of suspension or proposed termination has been
received by the recipient, shall state the applicant's interest in the
proceeding, the evidence or arguments the applicant
[[Page 19114]]
intends to contribute, and the necessity for the introduction of such
evidence or arguments.
(3) The presiding officer shall permit or deny such participation
and shall give notice of his decision to the applicant, the recipient,
and the Corporation, and, in the case of denial, a brief statement of
the reasons for his decision: Provided however, That the presiding
officer may subsequently permit such participation if, in his opinion,
it is warranted by subsequent circumstances. If participation is
granted, the presiding officer shall notify all parties of that fact
and may, in appropriate cases, include in the notification a brief
statement of the issues as to which participation is permitted.
(4) Permission to participate to any extent is not a recognition
that the participant has any interest which may be adversely affected
or that the participant may be aggrieved by any decision, but is
allowed solely for the aid and information of the presiding officer.
(e) Filing. All papers and documents which are required to be filed
shall be filed with the presiding officer. Prior to filing, copies
shall be sent to the other parties.
(f) Notice. The responsible Corporation official shall send the
recipient and any other party a written notice which states the time,
place, nature of the hearing, the legal authority and jurisdiction
under which the hearing is to be held. The notice shall also identify
with reasonable specificity the facts relied on as justifying
termination and the Corporation requirements which it is contended the
recipient has violated. The notice shall be filed and served not later
than 10 days prior to the hearing and a copy thereof shall be filed
with the presiding officer.
(g) Notice of intention to appear. The recipient and any other
party which has a right or has been granted permission to participate
in the hearing shall give written confirmation to the Corporation of
its intention to appear at the hearing 3 days before it is scheduled to
occur. Failing to do so may, at the discretion of the presiding
officer, be deemed a waiver of the right to a hearing.
(h) Form and date of service. All papers and documents filed or
sent to party shall be signed in ink by the appropriate party or his
authorized representative. The date on which papers are filed shall be
the day on which the papers or documents are deposited, postage prepaid
in the U.S. mail, or are delivered in person: Provided however, That
the effective date of the notice that there appear to be grounds which
warrant terminating assistance shall be the date of its delivery or
attempted delivery at the recipient's last known address as reflected
in the records of the Corporation.
(i) Prehearing conferences. Prior to the commencement of a hearing
the presiding officer may, subject to the provisions of paragraph
(b)(2) of this section, require the parties to meet with him or
correspond with him concerning the settlement of any matter which will
expedite a quick and fair conclusion of the hearing.
(j) Evidence. Technical rules of evidence shall not apply to
hearings conducted pursuant to this subpart, but the presiding officer
shall apply rules or principles designed to assure production of
relevant evidence and to subject testimony to such examination and
cross examination as may be required for a full and true disclosure of
the facts. The presiding officer may exclude irrelevant, immaterial, or
unduly repetitious evidence. A transcription shall be made of the oral
evidence and shall be made available to any participant upon payment of
the prescribed costs. All documents and other evidence submitted 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.
(k) Depositions. If the presiding officer determines that the
interests of justice would be served, he may authorize the taking of
depositions provided that all parties are afforded an opportunity to
participate in the taking of the depositions. The party who requested
the deposition shall arrange for a transcript to be made of the
proceedings and shall upon request, and at his expense, furnish all
other parties with copies of the transcript.
(l) Official notice. Official notice may be taken of a public
document, or part of a public document, such as a statute, official
report, decision, opinion or published scientific data issued by any
agency of the Federal Government or a State or local government and
such document or data may be entered on the record without further
proof of authenticity. Official notice may also be taken of such
matters as may be judicially noticed in the courts of the United
States, or any other matter of established fact within the general
knowledge of the Corporation. If the decision of the presiding officer
rests on official notice of a material fact not appearing in evidence,
a party shall on timely request be afforded an opportunity to show the
contrary.
(m) Proposed findings and conclusions. After the hearing has
concluded, but before the presiding officer makes his decision, he
shall afford each participant a reasonable opportunity to submit
proposed findings of fact and conclusions. After considering each
proposed finding or conclusion the presiding officer shall state in his
decision whether he has accepted or rejected them in accordance with
the provisions of Sec. 1206.1-8(a).
Sec. 1206.1-8 Decisions and notices regarding termination.
(a) Each decision of a presiding officer shall contain his findings
of fact, and conclusions, and shall state whether he has accepted or
rejected each proposed finding of fact and conclusion submitted by the
parties, pursuant to Sec. 1206.1-7(m). Findings of fact shall be based
only upon evidence submitted to the presiding officer and matters of
which official notice has been taken. The decision shall also specify
the requirement or requirements with which it is found that the
recipient has failed to comply.
(b) The decision of the presiding officer may provide for continued
suspension or termination of assistance to the recipient in whole or in
part, and may contain such terms, conditions, and other provisions as
are consistent with and will effectuate the purposes of the DVSA.
(c) If the hearing is held by an independent hearing examiner
rather than by the responsible Corporation official, he shall make an
initial decision, and a copy of this initial decision shall be mailed
to all parties. Any party may, within 20 days of the mailing of such
initial decision, or such longer period of time as the presiding
officer specifies, file with the responsible Corporation official his
written exceptions to the initial decision and any supporting brief or
statement. Upon the filing of such exceptions, the responsible
Corporation official shall, within 20 days of the mailing of the
exceptions, review the initial decision and issue his own written
decision thereof, including the reasons therefore. The decision of the
responsible Corporation official may increase, modify, approve, vacate,
remit, or mitigate any sanction imposed in the initial decision or may
remand the matter to the presiding officer for further hearing or
consideration.
(d) Whenever a hearing is waived, a decision shall be made by the
responsible Corporation official and a written copy of the final
decision of the responsible Corporation official shall be given to the
recipient.
[[Page 19115]]
(e) The recipient may request the CEO to review a final decision by
the responsible Corporation official which provides for the termination
of assistance. Such a request must be made in writing within 15 days
after the recipient has been notified of the decision in question and
must state in detail the reasons for seeking the review. In the event
the recipient requests such a review, the CEO or his designee shall
consider the reasons stated by the recipient for seeking the review and
shall approve, modify, vacate or mitigate any sanction imposed by the
responsible Corporation official or remand the matter to the
responsible Corporation official for further hearing or consideration.
The decision of the responsible Corporation official will be given
great weight by the CEO or his designee during the review. During the
course of his review the CEO or his designee may, but is not required
to, hold a hearing or allow the filing of briefs and arguments. Pending
the decision of the CEO or his designee assistance shall remain
suspended under the terms and conditions specified by the responsible
Corporation official, unless the responsible Corporation official or
the CEO or his designee otherwise determines. Every reasonable effort
shall be made to complete the review by the CEO or his designee within
30 days of receipt by the CEO of the recipient's request. The CEO or
his designee may however extend this period of time if he determines
that additional time is necessary for an adequate review.
Sec. 1206.1-9 Right to counsel; travel expenses.
In all formal or informal proceedings under this subpart, the
recipient and the Corporation shall have the right to be represented by
counsel or other authorized representatives. If the recipient and any
agency which has a right to participate in an informal meeting pursuant
to Sec. 1206.1-4 or a termination hearing pursuant to Sec. 1206.1-7
do not have an attorney acting in that capacity as a regular member of
the staff of the organization or a retainer arrangement with an
attorney, the Boards of Directors of such recipient and agency will be
authorized to designate an attorney to represent their organizations at
any such show cause proceeding or termination hearing and to transfer
sufficient funds from the Federal grant monies they have received for
the project to pay the fees, travel, and per diem expenses of such
attorney. The fees for such attorney shall be the reasonable and
customary fees for an attorney practicing in the locality of the
attorney. However, such fees shall not exceed $100 per day without the
prior express written approval of the Corporation. Travel and per diem
expenses may be paid to such attorney only in accordance with the
policies set forth in the federal government travel regulations. The
Boards of Directors of the recipient or any agency which has a right to
participate in an informal meeting pursuant to Sec. 1206.1-4 or a
termination hearing pursuant to Sec. 1206.1-7 will also be authorized
to designate two persons in addition to an attorney whose travel and
per diem expenses to attend the meeting or hearing may be paid from
Federal grant or contract monies. Such travel and per diem expenses
shall conform to the policies set forth in the federal government
travel regulations.
Sec. 1206.1-10 Modification of procedures by consent.
The responsible Corporation official or the presiding officer of a
termination hearing may alter, eliminate or modify any of the
provisions of this subpart with the consent of the recipient and, in
the case of a termination hearing, with the consent of all agencies
that have a right to participate in the hearing pursuant to Sec.
1206.1-5(e). Such consent must be in writing or be recorded in the
hearing transcript.
Sec. 1206.1-11 Other remedies.
The procedures established by this subpart shall not preclude the
Corporation from pursuing any other remedies authorized by law.
Subpart B--Denial of Application for Refunding
Sec. 1206.2-1 Applicability of this subpart.
This subpart applies to grantees and contractors receiving
financial assistance and to sponsors who receive AmeriCorps*VISTA
members under the DVSA. The procedures in this subpart do not apply to
review of applications for the following:
(a) University Year for VISTA projects which have received federal
funds for five years;
(b) Mini-grants;
(c) Other projects for which specific time limits with respect to
federal assistance are established in the original notice of grant
award or other document providing assistance, where the specified time
limit has been reached; and
(d) AmeriCorps*VISTA project extensions of less than six months.
Sec. 1206.2-2 Purpose.
This subpart establishes rules and review procedures for the denial
of a current recipient's application for refunding.
Sec. 1206.2-3 Definitions.
As used in this subpart--Corporation'', ``CEO'', and ``recipient''
are defined in accordance with Sec. 1206.1-3.
Financial assistance and assistance include the services of
National Senior Service Corps volunteers and AmeriCorps*VISTA members
supported in whole or in part with Corporation funds provided under the
DVSA.
Program account means assistance provided by the Corporation to
support a particular program activity; for example, AmeriCorps*VISTA,
Foster Grandparent Program, Senior Companion Program and Retired Senior
Volunteer Program.
Refunding includes renewal of an application for the assignment of
National Senior Service Corps volunteers and AmeriCorps*VISTA members.
Sec. 1206.2-4 Procedures.
(a) The procedures set forth in paragraphs (b) through (g) of this
section applies only where an application for refunding submitted by a
current recipient is rejected or is reduced to 80 percent or less of
the applied-for level of funding or the recipient's current level of
operations, whichever is less. It is further a condition for
application of these procedures that the rejection or reduction be
based on circumstances related to the particular grant or contract.
These procedures do not apply to reductions based on legislative
requirements, or on general policy or in instances where, regardless of
a recipient's current level of operations, its application for
refunding is not reduced by 20 percent or more. The fact that the basis
for rejecting an application may also be a basis for termination under
subpart A of this part shall not prevent the use of this subpart to the
exclusion of the procedures in subpart A.
(b) Before rejecting an application of a recipient for refunding
the Corporation shall notify the recipient of its intention, in
writing, at least 75 days before the end of the recipient's current
program year or grant budget period. The notice shall inform the
recipient that a tentative decision has been made to reject or reduce
an application for refunding. The notice shall state the reasons for
the tentative decision to which the recipient shall address itself if
it wishes to make a presentation as described in paragraphs (c) and (d)
of this section.
[[Page 19116]]
(c) If the notice of tentative decision is based on any reasons,
other than those described in paragraph (d) of this section, including,
but not limited to, situations in which the recipient has ineffectively
managed Corporation resources or substantially failed to comply with
Corporation policy and overall objectives under a contract or grant
agreement with the Corporation, the recipient shall be informed in the
notice, of the opportunity to submit written material and to meet
informally with a Corporation official to show cause why its
application for refunding should not be rejected or reduced. If the
recipient requests an informal meeting, such meeting shall be held on a
date specified by the Corporation. However, the meeting may not,
without the consent of the recipient, be scheduled sooner than 14 days,
nor more than 30 days, after the Corporation has mailed the notice to
the recipient. If the recipient requests an informal meeting, the
meeting shall be scheduled by the Corporation as soon as possible after
receipt of the request. The official who shall conduct this meeting
shall be a Corporation official who is authorized to finally approve
the refunding in question, or his designee.
(d) If the notice of tentative decision is based upon a specific
charge of failure to comply with the terms and conditions of the grant
or contract, alleging wrongdoing on the part of the recipient, the
notice shall offer the recipient an opportunity for an informal hearing
before a mutually agreed-upon impartial hearing officer. The authority
of such hearing officer shall be limited to conducting the hearing and
offering recommendations. The Corporation will retain all authority to
make the final determination as to whether the application should be
finally rejected or reduced. If the recipient requests an informal
hearing, such hearing shall be held at a date specified by the
Corporation. However, such hearing may not, without the consent of the
recipient, be scheduled sooner than 14 days nor more than 30 days after
the Corporation mails the notice to the recipient.
(e) In the selection of a hearing official and the location of
either an informal meeting or hearing, the Corporation, while mindful
of considerations of the recipient, will take care to insure that costs
are kept to a minimum. The informal meeting or hearing shall be held in
the city or county in which the recipient is located, in the
appropriate Service Center or Corporation State Office, or another
appropriate location. Within the limits stated in the preceding
sentence, the decision as to where the meeting shall be held will be
made by the Corporation, after weighing the convenience factors of the
recipient. For the convenience of the recipient, the Corporation will
pay the reasonable travel expenses for up to two representatives of the
recipient, if requested.
(f) The recipient shall be informed of the final Corporation
decision on refunding and the basis for the decision by the deciding
official.
(g) If the recipient's budget period expires prior to the final
decision by the deciding official, the recipient's authority to
continue program operations shall be extended until such decision is
made and communicated to the recipient. If a National Senior Service
Corps volunteer's or AmeriCorps*VISTA member's term of service expires
after receipt by a sponsor of a tentative decision not to refund a
project, the period of service of the volunteer or member may be
similarly extended. No volunteers or members may be reenrolled for a
full 12-month term, or new volunteers or members enrolled for a period
of service while a tentative decision not to refund is pending. If
program operations are so extended, the Corporation and the recipient
shall provide, subject to the availability of funds, operating funds at
the same levels as in the previous budget period to continue program
operations.
Sec. 1206.2-5 Right to counsel.
In all formal or informal proceedings under this subpart, the
recipient and the Corporation shall have the right to be represented by
counsel or other authorized representatives, at their own expense.
[FR Doc. 04-8208 Filed 4-9-04; 8:45 am]
BILLING CODE 6050-55-P