[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR81.43]



[Page 239-240]

 

                           TITLE 34--EDUCATION

 

PART 81_GENERAL EDUCATION PROVISIONS ACT_ENFORCEMENT--Table of Contents

 

                Subpart B_Hearings for Recovery of Funds

 

Sec.  81.43  Review by the Secretary.



    (a)(1) The Secretary's review of an initial decision is based on the 

record of the case, the initial decision, and any proper submissions of 

the parties or other participants in the case.

    (2) During the Secretary's review of the initial decision there 

shall not be any ex parte contact between the Secretary and individuals 

representing the Department or the recipient.

    (b) The ALJ's findings of fact, if supported by substantial 

evidence, are conclusive.

    (c) The Secretary may affirm, modify, set aside, or remand the ALJ's 

initial decision.

    (1) If the Secretary modifies, sets aside, or remands an initial 

decision, in whole or in part, the Secretary's decision includes a 

statement of reasons that supports the Secretary's decision.



[[Page 240]]



    (2)(i) The Secretary may remand the case to the ALJ with 

instructions to make additional findings of fact or conclusions of law, 

or both, based on the evidence of record. The Secretary may also remand 

the case to the ALJ for further briefing or for clarification or 

revision of the initial decision.

    (ii) If a case is remanded, the ALJ shall make new or modified 

findings of fact or conclusions of law or otherwise modify the initial 

decision in accordance with the Secretary's remand order.

    (iii) A party may appeal a modified decision of the ALJ under the 

provisions of Sec. Sec.  81.42 through 81.45. However, upon that review, 

the ALJ's new or modified findings, if supported by substantial 

evidence, are conclusive.

    (3) The Secretary, for good cause shown, may remand the case to the 

ALJ to take further evidence, and the ALJ may make new or modified 

findings of fact and may modify the initial decision based on that new 

evidence. These new or modified findings of fact are likewise conclusive 

if supported by substantial evidence.



(Authority: 5 U.S.C. 557(b); 20 U.S.C. 1221e-3, 1234(f)(1), 1234a(d), 

and 3474(a))



[58 FR 43474, Aug. 16, 1993, as amended at 60 FR 46494, Sept. 6, 1995]