Page:United States Statutes at Large Volume 108 Part 4.djvu/597

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PUBLIC LAW 103-354—OCT. 13, 1994 108 STAT. 3231 (2) ADMINISTRATIVE PROCEDURES.— The Director and hearing officer shall have the authority to require the attendance of witnesses, and the production oi evidence, by suhpoena and to adnunister oaths and afiBrmations. Except to the extent required for the disposition of ex parte matters as authorized by law— (A) an interested person outside the Division shall not make or knowingly cause to be made to the Director or a hearing officer who is or may reasonably be expected to be involved in the evidentiary hearing or review of an adverse decision, an ex parte communication (as defined in section 551(14) of title 5, United States Code) relevant to the merits of the proceeding; (B) the Director and such hearing officer shall not make or knowingly cause to be made to any interested person outside l^e Division an ex parte communication relevant to the merits of the proceeding. (b) TIME FOR HEARING. —Upon a timely request for a hearing under section 276(b), an appellant shall nave the right to have a hearing by the Division on the adverse decision witihdn 45 days after the date of the receipt of the request for the hearing. (c) LOCATION AND ELEMENTS OF HEARING. — (1) LOCATION. —A hearing on an adverse decision shall be held in the State of residence of the appellant or at a location that is otherwise convenient to the appellant and the Division. (2) EVIDENTIARY HEARING. — The evidentiary hearing before a hearing officer shall be in person, unless the appellant agrees to a hearing by telephone or by a review of the case record. The hearing officer shall not be bound by previous findings of fact by the agency in making a determination. (3) INFORMATION AT HEARING.—The hearing officer shall consider information presented at the hearing without regard to whether the evidence was known to the agency officer, employee, or committee making the adverse decision at the time the adverse decision was made. The hearing officer shall leave the record open after the hearing for a reasonable period of time to allow the submission of information by the appellant or the agency after the hearing to the extent necessary to respond to new facts, information, arguments, or evidence presented or raised by the agency or appellant. (4) BURDEN OF PROOF. — The appellant shall bear the burden of proving that the adverse decision of the agency was erroneous. (d) DETERMINATION NOTICE.— The hearing officer shall issue a notice of the determination on the appeal not later than 30 days after a hearing or after receipt of the request of the appellant to waive a hearing, except that the Director may establish an earlier or later deadline. If the determination is not appealed to the Director for review under section 278, the notice provided by the hearing officer shall be considered to be a notice of an administratively final determination. (e) EFFECTIVE DATE. — The final determination shall be effective as of the date of filing of an application, the date of the transaction or event in question, or the date of the original adverse decision, whichever is applicable.