After evaluating the actual operations of the State plan, or any portion thereof, for at least 1 year following publication of the certification in the FEDERAL REGISTER under §1902.34, the Assistant Secretary shall notify the State whenever he determines that the State will be eligible for an 18(e) determination. In addition, a State may request an 18(e) determination following the evaluation period noted above. In no case shall this determination of eligibility be later than 2 years following the publication of the certification of the completion of developmental steps in the FEDERAL REGISTER under §1902.34. In the case of a plan which was not developmental, the determination of eligibility shall not be sooner than 3 years following the date of commencement of operations under the plan.

After it has been determined that a State will be eligible for an 18(e) determination, the Assistant Regional Director shall prepare a final report of his evaluation of the actual operations under a State's plan or portion thereof which may be subject to the 18(e) determination. The Assistant Regional Director's report shall be transmitted to the Assistant Secretary. The Assistant Secretary shall transmit such report to the State and the State shall have an opportunity to respond to the report.

Whenever it has been determined that a State's plan, or separable portion thereof, is eligible for an 18(e) determination, the Assistant Secretary shall publish a notice in the FEDERAL REGISTER. The notice shall meet the requirements of the remaining paragraphs of this section. No later than 10 days following the publication of the notice in the FEDERAL REGISTER, the affected State agency shall publish, or cause to be published, within the State, reasonable notice containing the same information.

The notice shall indicate that the plan, or any separable portion thereof, is in issue before the Assistant Secretary for a determination as to whether the criteria in section 18(c) of the Act are being applied in actual operation, and indicate the particular substantive issues, if any, for consideration in making such determination. Where a portion of a plan is in issue for such a determination, the notice shall specify such portions of the plan as well as those portions of the plan which are not in issue for the determination.

The notice shall afford interested persons an opportunity to submit in writing, data, views, and arguments on the proposed 18(e) determination, and the affected State an opportunity to respond to such submissions.

The notice shall also state that any interested person or the affected State may request an informal hearing concerning the proposed 18(e) determination whenever particularized written objections thereto are filed within 35 days following publication of the notice in the FEDERAL REGISTER.

If the Assistant Secretary finds that substantial objections are filed which relate to the proposed 18(e) determination, the Assistant Secretary shall, and in any other case may, publish a notice of informal hearing in the FEDERAL REGISTER not later than 30 days after the last day for filing written views or comments. The notice shall include:

A statement of the time, place and nature of the proceeding;

A specification of the substantial issues which have been raised and on which an informal hearing has been requested;

The requirement for the filing of an intention to appear at the hearing, together with a statement of the position to be taken with regard to the issues specified, and of the evidence to be adduced in support of the position;

The designation of a presiding officer to conduct the hearing; and

Any other appropriate provisions with regard to the proceeding.

Not later than 10 days following the publication of the notice in the FEDERAL REGISTER, required by paragraph (g) of this section, the affected agency shall publish, or cause to be published, within the State reasonable notice containing the same information.