real property by a State agency, as a direct result of a program or project for which that State agency receives financial assistance from the Department shall be a cost chargeable in accordance with that program or project unless the Secretary determines that a payment required by a State law of eminent domain has substantially the same purpose and effect as, and would duplicate, a payment otherwise chargeable as a program or project cost by virtue of this section.

(b) Except to the extent that the costs of such payments and assistance are, by sections 207 and 211(a) of the Act, made fully chargeable up to $25,000 to the financial assistance provided by the Department, such costs shall be eligible for reimbursement in the same manner and to the same extent as other costs under the program or project involved. It should be noted that the provisions of those sections authorizing the first $25,000 to be fully chargeable to Federal financial assistance expired as of July 1, 1972.

(c) To the extent that Federal funds are available for the purpose, existing grants to, or contracts or agreements with, State agencies will be amended to reflect the additional cost, if any, of providing relocation payments and services to persons displaced on or after January 2, 1971, or the date on which the Act is fully effective in the particular State, and of providing the additional payments, if any, to the owner of property acquired on or after such a date, called for by this part within the limitations provided for by the Act.

(d) Reimbursement or other participation by the Department in payments made by State agencies for relocation will be limited, except in hardship cases, to those payments which are made to persons who move, or move their personal property, as a result of the receipt of written notice to vacate (which notice may have been given before or after negotiations for the acquisition of the real property involved).

(e) State agencies receiving financial assistance from the Department for programs or projects should carefully review such programs or projects for

the purpose of eliminating or lessening the extent of the dislocation of persons in order to minimize the financial and social impact of such programs and projects and to avoid significant adverse effects on the quality of the human environment.

§ 15.56 Advance payments.

The Secretary may advance Federal funds to a State agency for relocation payments and assistance pursuant to this part if he determines that such an advance is necessary for the expeditious completion of the program or project.

Subpart I-Real Property Acquisition Policies

§ 15.60 Just compensation.

When real property is acquired by the Department or by a State agency as a direct result of a program or project receiving financial assistance from the Department, the owner of such real property shall be paid as just compensation therefor by the Department, or, to the greatest extent practicable under State law, by such a State agency, not less than the approved appraisal of its fair market value in accordance with § 15.61, even if the property is not acquired by eminent domain proceeding.

§ 15.61 Negotiations for the acquisition of real property.

(a) Before negotiations are initiated for the acquisition of real property, the acquiring agency shall have the real property appraised in terms of its fair market value, and the owner thereof or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property.

(b) When negotiations are initiated for the acquisition of real property, the owner thereof shall be furnished a written statement concerning the proposed acquisition. Such a statement shall contain, as a minimum, the following:

(1) An identification of the real property, including the buildings, structures, and other improvements on the land, as well as fixtures, consid

ered to be a part of the real property, and the estate or interest therein to be acquired.

(2) The amount of the estimated just compensation for the property to be acquired, which shall not be less than the agency's approved appraisal of the fair market value of the property to be acquired, and a summary of the basis for determining the amount of such just compensation. Any decrease or increase in the fair market value of the real property prior to the date of its valuation caused by the public improvement for which the real property is being acquired, or by the likelihood that the real property would be acquired for such an improvement, other than a decrease due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. In the case of a partial taking, the damages, if any, to the remaining real property shall be separately stated.

(3) Appraisals shall be conducted as nearly as practicable pursuant to the Uniform Appraisal Standards for Federal Land Acquisition published in 1972 by the Interagency Land Acquisition Conference (G.P.O. 1972).

(c) The acquiring agency shall promptly either make an offer to purchase the property at the full amount of the just compensation therefor as SO determined or initiate eminent domain or other proceeding that may be required to avoid a cloud on title to the property.

§ 15.62 Notices to tenants and owners.

(a) Tenants of real property to be acquired shall be promptly notified of the initiation of negotiations for the acquisition of that real property.

(b) To the greatest extent practicable, an owner or tenant lawfully occupying real property shall not be required to move from a dwelling, or to move his business or farm operation, without at least 90 days' written notice of the date by which such a move is required. Such a notice shall be served personally or by certified (or registered) first-class mail.

§ 15.63 Payment of certain expenses.

(a) The owner of real property acquired shall be reimbursed for expenses incidental to the transfer of title to the real property, and litigation expenses incurred when real property is not acquired, as provided for in sections 303 and 304 of the Act.

(b) State agencies receiving financial assistance from the Department for a program or project involving the acquisition of real property shall otherwise be guided by the land acquisition policies enunciated in sections 301 and 302 of the Act to the greatest extent practicable under State law.

Subpart J-Relocation Assistance Payments as Income

§ 15.67 Relocation payments and assistance as income or resources for purpose of other laws.

Section 216 of the Act provides that payments received under title II of the Act in relation to relocation assistance shall not be considered as income for the purposes of the Internal Revenue Code of 1954 or for the purposes of determining the eligibility or the extent of eligibility or any person for assistance under the Social Security Act or any other Federal law. For the treatment of such payments, particularly in relation to resources, in connection with assistance under the Social Security Act, see § 233.20 of this title (37 FR 19371, September 20, 1972).

(a) The dispute must arise under a program which uses the Board for dispute resolution, and must meet any special conditions established for that program. An explanation is contained in Appendix A.

(b) The appellant must have received a final written decision, and must appeal that decision within 30 days after receiving it. Details of how final decisions are developed and issued, and what must be in them, are contained in 45 CFR 74.304.

(c) The appellant must have exhausted any preliminary appeal process required by regulation. For example, see 42 CFR Part 50 (Subpart D) for Public Health Service programs and Part 75 of this title for rate determinations and cost allocation plans. In such cases, the "final written decision" required for the Board's review is the decision resulting from the preliminiary review or appeal process. Appendix A contains further details.

§ 16.4 Summary of procedures below.

The Board's basic process is review of a written record (which both parties are given ample opportunity to devel op), consisting of relevant documents and statements submitted by both parties (see § 16.8). In addition, the Board may hold an informal conference (see § 16.10). The informal conference primarily involves questioning of the participants by a presiding Board member. Conferences may be conducted by telephone conference call. The written record review also may be supplemented by a hearing involving an opportunity for examining evidence and witnesses, cross-examination, and oral argument (see § 16.11). A hearing is more expensive and time-consuming than a determination on the written record alone or with an informal con ference. Generally, therefore, Board will schedule a hearing only if the Board determines that there are complex issues or material facts in dis pute, or that the Board's review would otherwise be significantly enhanced by a hearing. Where the amount in dis pute is $25,000 or less, there are spe cial expedited procedures (see § 16.12 of this part). In all cases, the Board has the flexibility to modify proce

the

dures to ensure fairness, to avoid delay, and to accommodate the peculiar needs of a given case. The Board makes maximum feasible use of preIliminary informal steps to refine

issues and to encourage resolution by the parties. The Board also has the capability to provide mediation services (see § 16.18).

$16.5 How the Board operates.

(a) The Board's professional staff consists of a Chair (who is also a Board member) and full- and parttime Board members, all appointed by the Secretary; and a staff of employees and consultants who are attorneys or persons from other relevant disciplines, such as accounting.

(b) The Chair will assign a Board member to have lead responsibility for each case (the "presiding Board member"). The presiding Board member will conduct the conference or hearing, if one is held. Each decision of the Board is issued by the presiding Board member and two other Board members.

(c) The Board staff assists the presiding Board member, and may request information from the parties; conduct telephone conference calls to request information, to clarify issues, or to schedule events; and assist in developing decisions and other documents in a case.

(d) The Chair will assure that no Board or staff member will participate in a case where his or her impartiality could reasonably be questioned.

(e) The Board's powers and responsibilities are set forth in § 16.13.

§ 16.6 Who represents the parties.

The appellant's notice of appeal, or = the first subsequent submission to the - Board, should specify the name, address and telephone number of the appellant's representative. In its first submission to the Board and the appellant, the respondent (i.e., the federal party to the appeal) should specify the name, address and telephone number of the respondent's representative.

§ 16.7 The first steps in the appeal process: the notice of appeal and the Board's response.

(a) As explained in 45 CFR 74.304, a prospective appellant must submit a notice of appeal to the Board within 30 days after receiving the final decision. The notice of appeal must include a copy of the final decision, a statement of the amount in dispute in the appeal, and a brief statement of why the decision is wrong.

(b) Within ten days after receiving the notice of appeal, the Board will send an acknowledgment, enclose a copy of these procedures, and advise the appellant of the next steps. The Board will also send a copy of the notice of appeal, its attachments, and the Board's acknowledgment to the respondent. If the Board Chair has determined that the appeal does not meet the conditions of § 16.3 or if further information is needed to make this determination, the Board will notify the parties at this point.

§ 16.8 The next step in the appeal process: preparation of an appeal file and written argument.

Except in expedited cases (generally those of $25,000 or less; see § 16.12 for details), the appellant and the respondent each participate in developing an appeal file for the Board to review. Each also submits written argument in support of its position. The responsibilities of each are as follows:

(a) The appellant's responsibility. Within 30 days after receiving the acknowledgment of the appeal, the appellant shall submit the following to the Board (with a copy to the respondent):

(1) An appeal file containing the documents supporting the claim, tabbed and organized chronologically and accompanied by an indexed list identifying each document. The appellant should include only those documents which are important to the Board's decision on the issues in the case.

(2) A written statement of the appellant's argument concerning why the respondent's final decision is wrong (appellant's brief).

(b) The respondent's responsibility. Within 30 days after receiving the appellant's submission under paragraph (a) of this section, the respondent shall submit the following to the Board (with a copy to the appellant):

(1) A supplement to the appeal file containing any additional documents supporting the respondent's position, organized and indexed as indicated under paragraph (a) of this section. The respondent should avoid submitting duplicates of documents submitted by the appellant.

(2) A written statement (respondent's brief) responding to the appellant's brief.

(c) The appellant's reply. Within 15 days after receiving the respondent's submission, the appellant may submit a short reply. The appellant should avoid repeating arguments already made.

(d) Cooperative efforts. Whenever possible, the parties should try to develop a joint appeal file, agree to preparation of the file by one of them, agree to facts to eliminate the need for some documents, or agree that one party will submit documents identified by the other.

(e) Voluminous documentation. Where submission of all relevant documents would lead to a voluminous appeal file (for example where review of a disputed audit finding of inadequate documentation might involve thousands of receipts), the Board will consult with the parties about how to reduce the size of the file.

§ 16.9 How the Board will promote development of the record.

The Board may, at the time it acknowledges an appeal or at any appropriate later point, request additional documents or information; request briefing on issues in the case; issue orders to show cause why a proposed finding or decision of the Board should not become final; hold preliminary conferences (generally by telephone) to establish schedules and refine issues; and take such other steps as the Board determines appropriate to develop a prompt, sound deciion.

§ 16.10 Using a conference.

(a) Once the Board has reviewed the appeal file, the Board may, on its own or in response to a party's request. schedule an informal conference. The conference will be conducted by the presiding Board member. The purposes of the conference are to give the parties an opportunity to make an oral presentation and the Board an opportunity to clarify issues and question both parties about matters which the Board may not yet fully understand from the record.

(b) If the Board has decided to hold a conference, the Board will consult or correspond with the parties to schedule the conference, identify issues, and discuss procedures. The Board wil identify the persons who will be allowed to participate, along with the parties' representatives, in the conference. The parties can submit with their briefs under § 16.8 a list of persons who might participate with them. indicating how each person is involved in the matter. If the parties wish, they may also suggest questions or areas of inquiry which the Board may wish to pursue with each participant.

(c) Unless the parties and the Board otherwise agree, the following procedures apply:

(1) Conferences will be recorded at Department expense. On request, a party will be sent one copy of the tran script. The presiding Board member will insure an orderly transcript by controlling the sequence and identif cation of speakers.

(2) Only in exceptional circumstances will documents be received at s conference. Inquiry will focus on material in the appeal file. If a party finds that further documents should be in the record for the conference. the party should supplement the appeal file, submitting a supplementa ry index and copies of the documents to the Board and the other party not less than ten days prior to the confer

ence.

(3) Each party's representative may make an oral presentation. Generally, the only oral communications of othe: participants will consist of statements requested by the Board or responses to the Board's questions. The Board