[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR26.89]

[Page 296-298]
 
                        TITLE 49--TRANSPORTATION
 
          Subtitle A--Office of the Secretary of Transportation
 
PART 26_PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT 
OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
 
                   Subpart E_Certification Procedures
 
Sec. 26.89  What is the process for certification appeals to the 
Department of Transportation?

    (a)(1) If you are a firm that is denied certification or whose 
eligibility is removed by a recipient, including SBA-certified firms 
applying pursuant to the DOT/SBA MOU, you may make an administrative 
appeal to the Department.
    (2) If you are a complainant in an ineligibility complaint to a 
recipient (including the concerned operating administration in the 
circumstances provided in Sec. 26.87(c)), you may appeal to the 
Department if the recipient does not find reasonable cause to propose 
removing the firm's eligibility or, following a removal of eligibility 
proceeding, determines that the firm is eligible.
    (3) Send appeals to the following address: Department of 
Transportation, Office of Civil Rights, 400 7th Street, SW, Room 5414, 
Washington, DC 20590.
    (b) Pending the Department's decision in the matter, the recipient's 
decision remains in effect. The Department does not stay the effect of 
the recipient's decision while it is considering an appeal.
    (c) If you want to file an appeal, you must send a letter to the 
Department within 90 days of the date of the recipient's final decision, 
including information and arguments concerning why the recipient's 
decision should be reversed. The Department may accept an appeal filed 
later than 90 days after the date of the decision if the Department 
determines that there was good cause for the late filing of the appeal.
    (1) If you are an appellant who is a firm which has been denied 
certification, whose certification has been removed, whose owner is 
determined not to be a member of a designated disadvantaged group, or 
concerning whose owner the presumption of disadvantage has been 
rebutted, your letter must state the name and address of any other 
recipient which currently certifies the firm, which has rejected an 
application for certification from the firm or removed the firm's 
eligibility within one year prior to the date of the appeal, or before 
which an application for certification or a removal of eligibility is 
pending. Failure to provide this information may be deemed a failure to 
cooperate under Sec. 26.109(c).
    (2) If you are an appellant other than one described in paragraph 
(c)(1) of this section, the Department will request, and the firm whose 
certification has been questioned shall promptly provide, the 
information called for in paragraph (c)(1) of this section. Failure to 
provide this information may be

[[Page 297]]

deemed a failure to cooperate under Sec. 26.109(c).
    (d) When it receives an appeal, the Department requests a copy of 
the recipient's complete administrative record in the matter. If you are 
the recipient, you must provide the administrative record, including a 
hearing transcript, within 20 days of the Department's request. The 
Department may extend this time period on the basis of a recipient's 
showing of good cause. To facilitate the Department's review of a 
recipient's decision, you must ensure that such administrative records 
are well organized, indexed, and paginated. Records that do not comport 
with these requirements are not acceptable and will be returned to you 
to be corrected immediately. If an appeal is brought concerning one 
recipient's certification decision concerning a firm, and that recipient 
relied on the decision and/or administrative record of another 
recipient, this requirement applies to both recipients involved.
    (e) The Department makes its decision based solely on the entire 
administrative record. The Department does not make a de novo review of 
the matter and does not conduct a hearing. The Department may supplement 
the administrative record by adding relevant information made available 
by the DOT Office of Inspector General; Federal, state, or local law 
enforcement authorities; officials of a DOT operating administration or 
other appropriate DOT office; a recipient; or a firm or other private 
party.
    (f) As a recipient, when you provide supplementary information to 
the Department, you shall also make this information available to the 
firm and any third-party complainant involved, consistent with Federal 
or applicable state laws concerning freedom of information and privacy. 
The Department makes available, on request by the firm and any third-
party complainant involved, any supplementary information it receives 
from any source.
    (1) The Department affirms your decision unless it determines, based 
on the entire administrative record, that your decision is unsupported 
by substantial evidence or inconsistent with the substantive or 
procedural provisions of this part concerning certification.
    (2) If the Department determines, after reviewing the entire 
administrative record, that your decision was unsupported by substantial 
evidence or inconsistent with the substantive or procedural provisions 
of this part concerning certification, the Department reverses your 
decision and directs you to certify the firm or remove its eligibility, 
as appropriate. You must take the action directed by the Department's 
decision immediately upon receiving written notice of it.
    (3) The Department is not required to reverse your decision if the 
Department determines that a procedural error did not result in 
fundamental unfairness to the appellant or substantially prejudice the 
opportunity of the appellant to present its case.
    (4) If it appears that the record is incomplete or unclear with 
respect to matters likely to have a significant impact on the outcome of 
the case, the Department may remand the record to you with instructions 
seeking clarification or augmentation of the record before making a 
finding. The Department may also remand a case to you for further 
proceedings consistent with Department instructions concerning the 
proper application of the provisions of this part.
    (5) The Department does not uphold your decision based on grounds 
not specified in your decision.
    (6) The Department's decision is based on the status and 
circumstances of the firm as of the date of the decision being appealed.
    (7) The Department provides written notice of its decision to you, 
the firm, and the complainant in an ineligibility complaint. A copy of 
the notice is also sent to any other recipient whose administrative 
record or decision has been involved in the proceeding (see paragraph 
(d) of this section). The Department will also notify the SBA in writing 
when DOT takes an action on an appeal that results in or confirms a loss 
of eligibility to any SBA-certified firm. The notice includes the 
reasons for the Department's decision, including specific references to 
the evidence in the record that supports each reason for the decision.

[[Page 298]]

    (8) The Department's policy is to make its decision within 180 days 
of receiving the complete administrative record. If the Department does 
not make its decision within this period, the Department provides 
written notice to concerned parties, including a statement of the reason 
for the delay and a date by which the appeal decision will be made.
    (g) All decisions under this section are administratively final, and 
are not subject to petitions for reconsideration.

[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 
FR 35556, June 16, 2003]