[Title 28 CFR 18]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 18 - OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseOFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES18PART 18JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 18--OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES--Table of Contents




Sec.
18.1  Purpose.
18.2  Application.
18.3  Definitions.
18.4  Preliminary hearings.
18.5  Hearings.
18.6  Conduct of hearings.
18.7  Discovery.
18.8  Recommended decision.
18.9  Final agency decision.
18.10  Rehearing.

    Authority: Secs. 802-804 of the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L. 90-
351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. 
L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473).
    Secs. 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended (Pub. L. 93-
415, as amended by Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-509, and 
Pub. L. 98-473).
    Sec. 1407(F) of the Victims of Crime Act of 1984, 42 U.S.C. 10601, 
et seq. Pub. L. 98-473, 98 Stat. 2176.

    Source: 50 FR 28199, July 11, 1985, unless otherwise noted.



Sec. 18.1  Purpose.

    The purpose of this regulation is to implement the hearing and 
appeal procedures available to State block or formula grant applicants 
or recipients and existing categorical grantees under sections 802 
through 804 of title I of the Omnibus Crime Control and Safe Streets Act 
of 1968, as amended (Crime Control Act); sections 223(d), 226 and 228(e) 
of the Juvenile Justice and Delinquency Prevention Act of 1974, as 
amended (Juvenile Justice Act); and section 1407(F) of the Victims of 
Crime Act of 1984 (Victims of Crime Act).



Sec. 18.2  Application.

    (a) These procedures apply to all appeals and hearings of State 
formula or block grant applicants or recipients and all existing 
recipients of categorical grants or cooperative agreements requested 
under section 802 of the Justice Assistance Act; sections 223(d), 226 
and 228(e) of the Juvenile Justice Act;

[[Page 386]]

section 1407(F) of the Victims of Crime Act; the nondiscrimination 
provision of section 809 of the Crime Control Act, or the cross-
referenced provisions of the Emergency Federal Law Enforcement 
Assistance Program. The method of notifying recipients of their non-
compliance with section 809 (the nondiscrimination provison of the Crime 
Control Act and 28 CFR 42.208.
    (b) These procedures do not apply to hearings requested under the 
Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The 
hearing and appeal procedures available to claimants denied benefits 
under that Act are set forth in the appendix to 28 CFR part 32.
    (c) These procedures do not apply to subgrant applicants or to 
recipients or third party beneficiaries of block or formula grants 
awarded to a State.
    (d) These procedures do not apply to categorical grant applicants.
    (e) These procedures do not apply to private sector/prison industry 
enhancement certification applicants; Regional Information Sharing 
Systems grant applicants; surplus Federal property certification 
applicants; or the State reimbursement program for Incarcerated Mariel-
Cubans.



Sec. 18.3  Definitions.

    (a) Block or formula grant applicant or recipient means an applicant 
for a grant awarded under the provisions of part D of the Crime Control 
Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 
and 1404 of the Victims of Crime Act.
    (b) Categorical grant recipient means a public or private agency 
which has received a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (c) Categorical grant applicant means a public or private agency 
which has applied for a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (d) Grant includes cooperative agreements and means a direct award 
of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC.
    (e) Crime Control Act means the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended.
    (f) Juvenile Justice Act means the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended.
    (g) Responsible agency means the organizational unit whose action is 
being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as 
appropriate. In hearings requested under the nondiscrimination 
provisions of the Crime Control Act, the responsible agency is OJP. In 
hearings requested to contest block or formula grant denials or 
terminations or categorical grant terminations, the responsible agency 
is the organizational unit that took the action at issue: OJP, BJA, 
OJJDP, NIJ, BJS or OVC.
    (h) Responsible agency official means the Assistant Attorney 
General, Office of Justice Programs (OJP); the Director, Bureau of 
Justice Assistance (BJA); the Director, National Institute of Justice 
(NIJ); the Director, Bureau of Justice Statistics (BJS); the Director, 
Office for Victims of Crime (OVC); or the Administrator, Office of 
Juvenile Justice and Delinquency Prevention (OJJDP), as appropriate.
    (i) Sub-grant applicant or recipient means the State agency, unit of 
local government or private non-profit organization which applies for, 
or receives, a grant from a State agency which administers a block or 
formula grant.
    (j) Victims of Crime Act means the Victims of Crime Act of 1984, 42 
U.S.C. 10601, et seq.



Sec. 18.4  Preliminary hearings.

    (a) A grantee determined to be in noncompliance with the 
nondiscrimination provisions of the Crime Control Act, the Juvenile 
Justice Act or the Victims of Crime Act may request a preliminary 
hearing within 90 days after receipt of the notification of 
noncompliance.
    (b) The preliminary hearing shall be initiated within 30 days of the 
request.
    (c) The sole issue to be adjudicated by the hearing officer is 
whether the

[[Page 387]]

grantee is likely to prevail on the merits of the issue at a full 
hearing requested under 28 CFR 42.215. The grantee shall have the burden 
of persuading the hearing officer that the grantee is likely to prevail 
on the merits.
    (d) The hearing officer may permit the parties to argue the issue by 
briefs, oral argument, or the presentation of testimony and exhibits. 
The hearing officer shall accept as evidence documents and other 
exhibits which can reasonably be authenticated and subjected to cross-
examination at a full hearing.
    (e) The hearing officer shall make the final decision on the issue 
within 15 days after the conclusion of the preliminary hearing.



Sec. 18.5  Hearings.

    (a) Whenever the responsible agency official finds that there has 
been a substantial failure to comply with:
    (1) The provisions of the Crime Control Act, the Juvenile Justice 
Act, or the Victims of Crime Act;
    (2) Regulations promulgated by the responsible agency pursuant to 
appropriate statutory authority; or
    (3) A plan or application submitted in accordance with the 
provisions of the Crime Control Act; the Juvenile Justice Act, the 
Victims of Crime Act, or the provisions of any other applicable Federal 
act, regulation or guideline;

the responsible agency shall notify the grantee or applicant State that 
all or part of its grant or subgrant will be terminated or suspended 
until the responsible agency is satisfied that there is no longer such 
failure.
    (b) The notice shall contain:
    (1) A statement of facts sufficient to inform the party of the 
reasons for the agency's proposed action;
    (2) A statement of the nature of the action proposed to be taken; 
and
    (3) A reference of the available appeal rights.
    (c) If a block or formula grant applicant or recipient or a 
categorical grant recipient wishes to appeal any action covered by 
Sec. 18.5(a) it may request a review of the issues in controversy within 
30 days after notice of termination, noncompliance or denial by writing 
to:

Office of General Counsel, office of Justice Programs, U.S. Department 
of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531.

    (d) The request for a review shall contain:
    (1) A factual statement sufficient to inform the responsible agency 
of the nature of the issues involved;
    (2) A recital of the relief requested; and
    (3) A request for an oral hearing, or in the alternative, an 
opportunity to submit only written information or argument to a hearing 
officer.
    (e) If the responsible agency official determines that basis for the 
appeal in Sec. 18.5(c) would not, if substantiated, establish a basis 
for grant award or continuation, the official may take final agency 
action on the appeal.
    (f) The responsible agency or its representative may attempt to 
informally resolve a controversy arising under this section prior to 
initiating a hearing. Unless it is expressly agreed otherwise, an 
agreement to attempt informal resolution does not waive the right to the 
formal hearing.
    (g) If the responsible agency or its representaive does not receive 
a request for a review within 30 days after notice has been sent, the 
opportunity for review is waived.
    (h) All oral hearings requested under this section shall be held in 
Washington, DC, unless the hearing officer decides that the hearing 
could be conducted in a more expeditious, fair, or cost effective manner 
in another location.
    (i) The responsible agency may suspend all or part of the grantee's 
funding pending the completion of the review process. If, at the 
conclusion of the review process, the responsible agency determines that 
the grantee is in compliance, it shall restore all previously suspended 
funding to the grantee.
    (j) Any person may request the responsible agency official to 
determine whether a grantee has failed to comply with the terms of the 
statute under which the grant was awarded, agency regulations or the 
terms and conditions of the grant. The responsible agency may, in its 
discretion, conduct an investigation into the matter and, if warranted, 
make a determination of

[[Page 388]]

noncompliance. Only a grantee determined to be in noncompliance may 
request a compliance hearing.



Sec. 18.6  Conduct of hearings.

    (a) A hearing officer appointed by the responsible agency official 
shall preside over the hearing. The hearing officer may be an 
administrative law judge, or an employee of the Department of Justice 
who was not involved in the administration, investigation or prosecution 
of the matter at issue. In hearings held under the nondiscrimination 
provisions of the Crime Control Act, the Juvenile Justice Act or the 
Victims of Crime Act, the hearing officer shall be an administrative law 
judge.
    (b) If the hearing officer appointed is unacceptable to the 
appellant, it shall promptly inform the responsible agency official of 
the reasons for its position. The responsible agency official may select 
another hearing officer, or affirm the initial selection. In either 
case, the official shall inform the appellant of the reasons for the 
decision.
    (c) The hearing officer shall have the following powers and duties:
    (1) The power to hold hearings and regulate the course of the 
hearings and the conduct of the parties and their counsel;
    (2) The power to sign and issue subpoenas and other orders requiring 
access to records;
    (3) The power to administer oaths and affirmations;
    (4) The power to examine witnesses;
    (5) The power to rule on offers of proof and to receive evidence;
    (6) The power to take depositions or to cause depositions to be 
taken;
    (7) The power to hold conferences under Sec. 18.6(d) for the 
settlement or simplification of the issues or for any other proper 
purpose;
    (8) The power to consider and rule upon procedural requests and 
other motions, including motions for default;
    (9) The duty to conduct fair and impartial hearings;
    (10) The duty to maintain order;
    (11) The duty to avoid unnecessary delay; and
    (12) All powers and duties reasonably necessary to perform the 
functions enumerated in subsections (1)-(11).
    (d) The hearing officer may call upon the parties to consider:
    (1) Simplification or clarification of the issues;
    (2) Stipulations, admissions, agreements on documents, or other 
understandings which will expedite conduct of the hearing;
    (3) Limitation of the number of witnesses and of cumulative 
evidence;
    (4) Settlement of all or part of the issues in dispute;
    (5) Such other matters as may aid in the disposition of the case.
    (e) All hearings under this part shall be public unless otherwise 
ordered by the responsible agency official.
    (f) The hearing shall be conducted in conformity with sections 5-8 
of the Administrative Procedure Act, 5 U.S.C. 554-557.
    (g) The responsible agency shall have the burden of going forward 
with the evidence and shall generally present its evidence first.
    (h) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules designed to assure production 
of the most credible evidence available and to subject testimony to 
cross-examination shall be applied where reasonably necessary by the 
hearing officer. 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.
    (i) During the time a proceeding is before a hearing officer, all 
motions shall be addressed to the hearing officer and, if within his or 
her delegated authority, shall be ruled upon. Any motion upon which the 
hearing officer has no authority to rule shall be certified to the 
responsible agency official with a recommendation. The opposing party 
may answer within such time as may be designated by the hearing officer. 
The hearing officer may permit further replies by both parties.

[[Page 389]]



Sec. 18.7  Discovery.

    (a)(1) At any time after the initiation of the proceeding, the 
hearing officer may order, by subpoena if necessary, the taking of a 
deposition and the production of relevant documents by the deponent. 
Such order may be entered upon a showing that the deposition is 
necessary for discovery purposes, and that such discovery could not be 
accomplished by voluntary methods. Such an order may also be entered in 
extraordinary circumstances to preserve relevant evidence upon a showing 
that there is substantial reason to believe that such evidence could not 
be presented through a witness at the hearing. The decisive factors for 
a determination under this subsection, however, shall be fairness to all 
parties and the requirements of due process. Depositions may be taken 
orally or upon written questions before any person who has the power to 
administer oaths.
    (2) Each deponent shall be duly sworn, and any adverse party shall 
have the right to cross-examine. Objections to questions or documents 
shall be in short form, stating the grounds upon which objections are 
made. The questions propounded and the answers thereto, together with 
all objections made (but not including argument or debate), shall be 
reduced to writing and certified by the officer before whom the 
deposition was taken. Thereafter, the officer shall forward the 
deposition and one (1) copy thereof to the party at whose instance the 
deposition was taken and shall forward one (1) copy to the 
representative of the other party.
    (3) A deposition may be admitted into evidence as against any party 
who was present or represented at the taking of the deposition, or who 
had due notice thereof, if the hearing officer finds that there are 
sufficient reasons for admission and that the admission of the evidence 
would be fair to all parties and comport with the requirements of due 
process.
    (b)(1) At any time after the initiation of the appeal, any party may 
serve upon any other party written interrogatories to be answered by the 
party served, or by an authorized representative of the party if the 
party served is a corporate or governmental entity. The party served 
shall furnish all information which is available to it.
    (2) Each interrogatory shall be answered separately and fully in 
writing under oath by the party addressed or by an authorized 
representative. The time and manner of returning the interrogatory shall 
be prescribed by the hearing officer.



Sec. 18.8  Recommended decision.

    Within a reasonable time after the close of the record of the 
hearings conducted under Sec. 18.6, the hearing officer shall submit 
findings of fact, conclusions of law, and a recommended order to the 
responsible agency official, in writing. The hearing officer shall 
promptly make copies of these documents available to the parties.



Sec. 18.9  Final agency decision.

    (a) In hearings conducted under Sec. 18.6, the responsible agency 
official shall make the final agency decision, on the basis of the 
record, findings, conclusions, and recommendations presented by the 
hearing examiner.
    (b) Prior to making a final decision, the responsible agency 
official shall give the parties an opportunity to submit the following, 
within thirty (30) days after the submission of the hearing officer's 
recommendations:
    (1) Proposed findings and determinations;
    (2) Exceptions to the recommendations of the hearing officer; and
    (3) Supporting reasons for the exceptions or proposed findings or 
determinations; and
    (4) Final briefs summarizing the arguments presented at the hearing.
    (c) All determinations, findings and conclusions made by the 
responsible agency official shall be final and conclusive upon the 
responsible agency and all appellants.



Sec. 18.10  Rehearing.

    (a) Any appellant dissatisfied with a final agency decision under 
Sec. 18.9 may, within 30 days after the notice of the final agency 
decision is sent, request the responsible agency official to re-review 
the record, and present additional evidence which is appropriate and 
pertinent to support a different decision.

[[Page 390]]

    (b) If the responsible agency official finds that the appellant has:
    (1) Presented evidence or argument which is sufficiently significant 
to require the conduct of further proceedings; or
    (2) Shown some defect in the conduct of the initial hearing 
sufficient to cause substantial unfairness or an erroneous finding in 
that hearing, the responsible agency official may require that another 
oral hearing be held on one or more of the issues in controversy, or 
permit the dissatisfied party to present further evidence or argument in 
writing.
    (c) Any rehearing ordered by the responsible agency official shall 
be conducted pursuant to Secs. 18.5--18.8.