| 43 CFR 4.800
TITLE 43--PUBLIC LANDS: INTERIOR
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents
Subpart I--Special Procedural Rules Applicable to Practice and
Procedure for Hearings, Decisions, and Administrative Review
Under Part 17 of This Title--Nondiscrimination in Federally
Assisted Programs of the Department of the Interior--Effectuation
of Title VI of the Civil Rights Act of 1964
Authority: 43 CFR 17.8 and 5 U.S.C. 301.
Source: 38 FR 21162, Aug. 6, 1973, unless otherwise noted.
Cross Reference: See subpart A for the organization, authority and
jurisdiction of the Office of Hearings and Appeals, including its
Hearings Division. To the extent they are not inconsistent with these
special rules, the general rules applicable to all types of proceedings
before the Hearings Division and the several Appeals Boards of the
Office of Hearings and Appeals, contained in subpart B of this part, are
applicable also to proceedings under these regulations.
General
Sec. 4.800 Scope and construction of rules.
(a) The rules of procedure in this subpart I supplement part 17 of
this title and are applicable to the practice and procedure for
hearings, decisions, and administrative review conducted by the
Department of the Interior, pursuant to title VI of the Civil Rights Act
of 1964 (section 602, 42 U.S.C. 2000d-1) and part 17 of this title,
concerning nondiscrimination in Federally-assisted programs in
connection with which Federal financial assistance is extended under
laws administered in whole or in part by the Department of the Interior.
(b) These regulations shall be liberally construed to secure the
just, prompt, and inexpensive determination of all proceedings
consistent with adequate consideration of the issues involved and full
protection of the rights
[[Page 112]]
of all interested parties including the Government.
Sec. 4.801 Suspension of rules.
Upon notice to all parties, the responsible Department official or
the administrative law judge, with respect to matters pending before
him, may modify or waive any rule in this part upon his determination
that no party will be unduly prejudiced and the ends of justice will
thereby be served.
Sec. 4.802 Definitions.
(a) The definitions set forth in Sec. 17.12 of this title apply also
to this subpart.
(b) Director means the Director, Office for Equal Opportunity,
Department of the Interior.
(c) Administrative law judge means an administrative law judge
designated by the Office of Hearings and Appeals, Office of the
Secretary, in accordance with 5 U.S.C. 3105 and 3344.
(d) Notice means a notice of hearing in a proceeding instituted
under Part 17 of this title and these regulations.
(e) Party means a recipient or applicant; the Director; and any
person or organization participating in a proceeding pursuant to
Sec. 4.808.
Sec. 4.803 Computation of time.
Except as otherwise provided by law, in computing any period of time
under these rules or in any order issued hereunder, the time begins with
the day following the act or event, and includes the last day of the
period, unless it is a Saturday, Sunday, or Federal legal holiday, or
other nonbusiness day, in which event it includes the next following day
which is not a Saturday, Sunday, Federal legal holiday, or other
nonbusiness day. When the period of time prescribed or allowed is 7 days
or less, intermediate Saturdays, Sundays, Federal legal holidays and
other nonbusiness days shall be excluded in the computation.
Sec. 4.804 Extensions of time.
A request for extension of time should be made to the designated
administrative law judge or other appropriate Departmental official with
respect to matters pending before him. Such request shall be served on
all parties and set forth the reasons for the request. Extensions may be
granted upon a showing of good cause by the applicant. Answers to such
requests are permitted if made promptly.
Sec. 4.805 Reduction of time to file documents.
For good cause, the responsible Departmental official or the
administrative law judge, with respect to matters pending before him,
may reduce any time limit prescribed by the rules in this part, except
as provided by law or in part 17 of this title.
Designation and Responsibilities of Administrative Law Judge
Sec. 4.806 Designation.
Hearings shall be held before an administrative law judge designated
by the Office of Hearings and Appeals.
Sec. 4.807 Authority and responsibilities.
The administrative law judge shall have all powers necessary to
preside over the parties and the proceedings, conduct the hearing, and
make decisions in accordance with 5 U.S.C. 554 through 557. His powers
shall include, but not be limited to, the power to:
(a) Hold conferences to settle, simplify, or fix the issues in a
proceeding, or to consider other matters that may aid in the expeditious
disposition of the proceeding.
(b) Require parties to state their position with respect to the
various issues in the proceedings.
(c) Establish rules for media coverage of the proceedings.
(d) Rule on motions and other procedural items in matters before
him.
(e) Regulate the course of the hearing, the conduct of counsel,
parties, witnesses, and other participants.
(f) Administer oaths, call witnesses on his own motion, examine
witnesses, and direct witnesses to testify.
(g) Receive, rule on, exclude, or limit evidence.
(h) Fix time limits for submission of written documents in matters
before him.
(i) Take any action authorized by these regulations, by 5 U.S.C.
556, or by other pertinent law.
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Appearance and Practice
Sec. 4.808 Participation by a party.
Subject to the provisions contained in part 1 of this subtitle, a
party may appear in person, by representative, or by counsel, and
participate fully in any proceeding held pursuant to part 17 of this
title and these regulations. A State agency or any instrumentality
thereof, a political subdivision of the State or instrumentality
thereof, or a corporation may appear by any of its officers or employees
duly authorized to appear on its behalf.
Sec. 4.809 Determination of parties.
(a) The affected applicant or recipient to whom a notice of hearing
or a notice of an opportunity for hearing has been mailed in accordance
with part 17 of this title and Sec. 4.815, and the Director, are the
initial parties to the proceeding.
(b) Other persons or organizations shall have the right to
participate as parties if the final decision could directly and
adversely affect them or the class they represent, and if they may
contribute materially to the disposition of the proceedings.
(c) A person or organization wishing to participate as a party under
this section shall submit a petition to the administrative law judge
within 15 days after the notice has been served. The petition should be
filed with the administrative law judge and served on the affected
applicant or recipient, on the Director, and on any other person or
organization who has been made a party at the time of filing. Such
petition shall concisely state: (1) Petitioner's interest in the
proceeding, (2) how his participation as a party will contribute
materially to the disposition of the proceeding, (3) who will appear for
petitioner, (4) the issues on which petitioner wishes to participate,
and (5) whether petitioner intends to present witnesses.
(d) The administrative law judge shall promptly ascertain whether
there are objections to the petition. He shall then determine whether
petitioners have the requisite interest to be a party in the
proceedings, as defined in paragraphs (a) and (b) of this section, and
shall permit or deny participation accordingly. Where petitions to
participate as parties are made by individuals or groups with common
interests, the administrative law judge may request all such petitioners
to designate a single representative, or he may recognize one or more of
such petitioners to represent all such petitioners. The administrative
law judge shall give each such petitioner written notice of the decision
on his petition. If the petition is denied, he shall briefly state the
grounds for denial and shall then treat the petition as a request for
participation as amicus curiae. The administrative law judge shall give
written notice to each party of each petition granted.
(e) Persons or organizations whose petition for party participation
is denied may appeal the decision to the Director, Office of Hearings
and Appeals, within 7 days of receipt of denial. The Director, Office of
Hearings and Appeals, will make the final decision for the Department to
grant or deny the petition.
Sec. 4.810 Complainants not parties.
A person submitting a complaint pursuant to Sec. 17.6 of this title
is not a party to the proceedings governed by part 17 of this title and
these regulations, but may petition, after proceedings are initiated, to
become an amicus curiae. In any event a complainant shall be advised of
the time and place of the hearing.
Sec. 4.811 Determination and participation of amici.
(a) Any interested person or organization wishing to participate as
amicus curiae in the proceeding shall file a petition before the
commencement of the hearing. Such petition shall concisely state the
petitioner's interest in the hearing and who will represent petitioner.
(b) The administrative law judge will grant the petition if he finds
that the petitioner has an interest in the proceedings and may
contribute materially to the disposition of the proceedings. The
administrative law judge shall give the petitioner written notice of the
decision on his petition.
(c) An amicus curiae is not a party and may not introduce evidence
at a hearing but may only participate as
[[Page 114]]
provided in paragraph (d) of this section.
(d) An amicus curiae may submit a written statement of position to
the administrative law judge at any time prior to the beginning of a
hearing, and shall serve a copy on each party. He may also file a brief
or written statement on each occasion a decision is to be made or a
prior decision is subject to review. His brief or written statement
shall be filed and served on each party within the time limits
applicable to the party whose position he deems himself to support; or
if he does not deem himself to support the position of any party, within
the longest time limit applicable to any party at that particular stage
of the proceedings.
(e) When all parties have completed their initial examination of a
witness, any amicus curiae may request the administrative law judge to
propound specific questions to the witness. The administrative law
judge, in his discretion, may grant any such request if he believes the
proposed additional testimony may assist materially in elucidating
factual matters at issue between the parties and will not expand the
issues.
Form and Filing of Documents
Sec. 4.812 Form.
Documents filed pursuant to a proceeding herein shall show the
docket description and title of the proceeding, the party or amicus
submitting the document, the dates signed, and the title, if any, and
address of the signatory. The original will be signed in ink by the
party representing the party or amicus. Copies need not be signed, but
the name of the person signing the original shall be reproduced.
Sec. 4.813 Filing and service.
(a) All documents submitted in a proceeding shall be served on all
parties. The original and two copies of each document shall be submitted
for filing. Filings shall be made with the administrative law judge or
other appropriate Departmental official before whom the proceeding is
pending. With respect to exhibits and transcripts of testimony, only
originals need be filed.
(b) Service upon a party or amicus shall be made by delivering one
copy of each document requiring service in person or by certified mail,
return receipt requested, properly addressed with postage prepaid, to
the party or amicus or his attorney, or designated representative.
Filing will be made in person or by certified mail, return receipt
requested, to the administrative law judge or other appropriate
Departmental official before whom the proceeding is pending.
(c) The date of filing or of service shall be the day when the
matter is deposited in the U.S. mail or is delivered in person.
Sec. 4.814 Certificate of service.
The original of every document filed and required to be served upon
parties shall be endorsed with a certificate of service signed by the
party or amicus curiae making service or by his attorney or
representative, stating that such service has been made, the date of
service, and the manner of service.
Procedures
Sec. 4.815 How proceedings are commenced.
Proceedings are commenced by the Director by mailing to an applicant
or recipient a notice of alleged noncompliance with the Act and the
regulations thereunder. The notice shall include either a notice of
hearing fixing a date therefor or a notice of an opportunity for a
hearing as provided in Sec. 17.8 of this title. The notice shall advise
the applicant or recipient of the action proposed to be taken, the
specific provisions of part 17 of this title under which the proposed
action is to be taken, and the matters of fact or law asserted as the
basis of the action.
Sec. 4.816 Notice of hearing and response thereto.
A notice of hearing shall fix a date not less than 30 days from the
date of service of the notice of a hearing on matters alleged in the
notice. If the applicant recipient does not desire a hearing, he should
so state in writing, in which case the applicant or recipient
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shall have the right to further participate in the proceeding. Failure
to appear at the time set for a hearing, without good cause, shall be
deemed a waiver of the right to a hearing under section 602 of the Act
and the regulations thereunder and consent to the making of a decision
on such information as is available which may be presented for the
record.
Sec. 4.817 Notice of opportunity to request a hearing and response
thereto.
A notice of opportunity to request a hearing shall set a date not
less than 20 days from service of said notice within which the applicant
or recipient may file a request for a hearing, or may waive a hearing
and submit written information and argument for the record, in which
case, the applicant or recipient shall have the right to further
participate in the proceeding. When the applicant or recipient elects to
file a request for a hearing, a time shall be set for the hearing at a
date not less than 20 days from the date applicant or recipient is
notified of the date set for the hearing. Failure of the applicant or
recipient to request a hearing or to appear at the date set shall be
deemed a waiver of the right to a hearing, under section 602 of the Act
and the regulations thereunder and consent to the making of a decision
on such information as is available which may be presented for the
record.
Sec. 4.818 Answer.
In any case covered by Sec. 4.816 or Sec. 4.817, the applicant or
recipient shall file an answer. Said answer shall admit or deny each
allegation of the notice, unless the applicant or recipient is without
knowledge, in which case the answer shall so state, and the statement
will be considered a denial. Failure to file an answer shall be deemed
an admission of all allegations of fact in the notice. Allegations of
fact in the notice not denied or controverted by answer shall be deemed
admitted. Matters alleged in the answer as affirmative defenses shall be
separately stated and numbered. The answer under Sec. 4.816 shall be
filed within 20 days from the date of service of the notice of hearing.
The answer under Sec. 4.817 shall be filed within 20 days of service of
the notice of opportunity to request a hearing.
Sec. 4.819 Amendment of notice or answer.
The Director may amend the notice of hearing or opportunity for
hearing once as a matter of course before an answer is filed, and each
respondent may amend his answer once as a matter of course not later
than 10 days before the date fixed for hearing but in no event later
than 20 days from the date of service of his original answer. Other
amendments of the notice or of the answer to the notice shall be made
only by leave of the administrative law judge. An amended notice shall
be answered within 10 days of its service, or within the time for filing
an answer to the original notice, whichever period is longer.
Sec. 4.820 Consolidated or joint hearings.
As provided in Sec. 17.8(e) of this title, the Secretary may provide
for proceedings in the Department to be joined or consolidated for
hearing with proceedings in other Federal departments or agencies, by
agreement with such other departments or agencies. All parties to any
proceedings consolidated subsequently to service of the notice of
hearing or opportunity for hearing shall be promptly served with notice
of such consolidation.
Sec. 4.821 Motions.
Motions and petitions shall state the relief sought, the basis for
relief and the authority relied upon. If made before or after the
hearing itself, these matters shall be in writing. If made at the
hearing, they may be stated orally; but the administrative law judge may
require that they be reduced to writing and filed and served on all
parties. Within 8 days after a written motion or petition is served, any
party may file a response to a motion or petition. An immediate oral
response may be made to an oral motion. Oral argument on motions will be
at the discretion of the administrative law judge.
Sec. 4.822 Disposition of motions.
The administrative law judge may not grant a written motion or
petition
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prior to expiration of the time for filing responses thereto, but may
overrule or deny such motion or petition without awaiting response:
Provided, however, That prehearing conferences, hearings, and decisions
need not be delayed pending disposition of motions or petitions. Oral
motions and petitions may be ruled on immediately.
Sec. 4.823 Interlocutory appeals.
Except as provided in Sec. 4.809(e), a ruling of the administrative
law judge may not be appealed to the Director, Office of Hearings and
Appeals, prior to consideration of the entire proceeding by the
administrative law judge unless permission is first obtained from the
Director, Office of Hearings and Appeals, and the administrative law
judge has certified the interlocutory ruling on the record or abused his
discretion in refusing a request to so certify. Permission will not be
granted except upon a showing that the ruling complained of involves a
controlling question of law and that an immediate appeal therefrom may
materially advance the final decision. An interlocutory appeal shall not
operate to suspend the hearing unless otherwise ordered by the Director,
Office of Hearings and Appeals. If an appeal is allowed, any party may
file a brief within such period as the Director, Office of Hearings and
Appeals, directs. Upon affirmance, reversal, or modification of the
administrative law judge's interlocutory ruling or order, by the
Director, Office of Hearings and Appeals, the case will be remanded
promptly to the administrative law judge for further proceedings.
Sec. 4.824 Exhibits.
Proposed exhibits shall be exchanged at the prehearing conference,
or otherwise prior to the hearing, if the administrative law judge so
directs. Proposed exhibits not so exchanged in accordance with the
administrative law judge's order may be denied admission as evidence.
The authenticity of all exhibits submitted prior to the hearing, under
direction of the administrative law judge, will be deemed admitted
unless written objection thereto is filed and served on all parties, or
unless good cause is shown for failure to file such written objection.
Sec. 4.825 Admissions as to facts and documents.
Not later than 15 days prior to the date of the hearing any party
may serve upon an opposing party a written request for the admission of
the genuineness and authenticity of any relevant documents described in,
and exhibited with, the request, or for the admission of the truth of
any relevant matters of fact stated in the request. Each of the matters
as to which an admission is requested shall be deemed admitted, unless
within a period of 10 days, the party to whom the request is directed
serves upon the requesting party a statement either (a) denying
specifically the matters as to which an admission is requested, or (b)
setting forth in detail the reasons why he cannot truthfully either
admit or deny such matters.
Sec. 4.826 Discovery.
(a) Methods. Parties may obtain discovery as provided in these rules
by depositions, written interrogatories, production of documents, or
other items; or by permission to enter property, for inspection and
other purposes.
(b) Scope. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the
hearing.
(c) Protective orders. Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, the administrative
law judge may make any order which justice requires to limit or
condition discovery in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.
(d) Sequence and timing. Methods of discovery may be used in any
sequence. The fact that a party is conducting discovery shall not
operate to delay any other party's discovery.
(e) Time limit. Discovery by all parties will be completed within
such time as the administrative law judge directs, from the date the
notice of hearing is served on the applicant or recipient.
[[Page 117]]
Sec. 4.827 Depositions.
(a) A party may take the testimony of any person, including a party,
by deposition upon oral examination. This may be done by stipulation or
by notice, as set forth in paragraph (b) of this section. On motion of
any party or other person upon whom the notice is served, the
administrative law judge may for cause shown enlarge or shorten the time
for the deposition, change the place of the deposition, limit the scope
of the deposition or quash the notice. Depositions of persons other than
parties or their representatives shall be upon consent of the deponent.
(b)(1) The party will give reasonable notice in writing to every
other party of the time and place for taking depositions, the name and
address of each person to be examined, if known, or a general
description sufficient to identify him or the particular class or group
to which he belongs.
(2) The notice to a deponent may be accompanied by a request for the
production of documents and tangible things at the taking of the
deposition.
(3) A party may name as the deponent a corporation, partnership,
association, or governmental agency and may designate a particular
person within the organization whose testimony is desired and the
matters on which examination is requested. If no particular person is
named, the organization shall designate one or more agents to testify on
its behalf, and may set forth the matters on which each will testify.
The persons so designated shall testify as to matters known or
reasonably available to the organization.
(c) Examination and cross-examination of witnesses may proceed as
permitted at the hearing. The witness shall be placed under oath by a
disinterested person qualified to administer oaths by the laws of the
United States or of the place where the examination is held, and the
testimony taken by such person shall be recorded verbatim.
(d) During the taking of a deposition a party or deponent may
request suspension of the deposition on grounds of bad faith in the
conduct of the examination, annoyance, embarrassment, oppression of a
deponent or party or improper questions propounded. The deposition will
then be adjourned. However, the objecting party or deponent must
immediately move the administrative law judge for a ruling on his
objections to the deposition conduct or proceedings. The administrative
law judge may then limit the scope or manner of the taking of the
deposition.
(e) The officer shall certify the deposition and promptly file it
with the administrative law judge. Documents or true copies of documents
and other items produced for inspection during the examination of the
witness shall, upon the request of a party, be marked for identification
and annexed to the deposition.
(f) The party taking the deposition shall give prompt notice of its
filing to all other parties.
Sec. 4.828 Use of depositions at hearing.
(a) Any part or all of a deposition so far as admissible under
Sec. 4.835 applied as though the witness were then present and
testifying, may be used against any party who was present or represented
at the taking of the deposition or who had reasonable notice thereof as
follows:
(1) Any deposition may be used for contradiction or impeachment of
the deponent as a witness.
(2) The deposition of a party, or of an agent designated to testify
on behalf of a party, may be used by an adverse party for any purpose.
(3) The deposition of any witness may be used for any purpose if the
party offering the deposition has been unable to procure the attendance
of the witness because he is dead; or if the witness is at a greater
distance than 100 miles from the place of hearing, or is out of the
United States, unless it appears that the absence of the witness was
procured by the party offering the deposition; or if the witness is
unable to attend or testify because of age, illness, infirmity, or
imprisonment; or, upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice
and with due regard to the importance of presenting the testimony of
witnesses orally in open hearing, to allow the deposition to be used.
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(b) If only part of a deposition is offered in evidence, the
remainder becomes subject to introduction by any party.
(c) Objection may be made at the hearing to receiving in evidence
any deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and
testifying.
Sec. 4.829 Interrogatories to parties.
(a) Any party may serve upon any other party written interrogatories
after the notice of hearing has been filed. If the party served is a
corporation, partnership, association, or governmental agency, an agent
shall furnish such information as is available to the party.
(b) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the
objection shall be stated in lieu of an answer. The answers are to be
signed by the person making them, and the objections signed by the
attorney or other representative making them. Answers and objections
shall be made within 30 days after the service of the interrogatories.
The party submitting the interrogatories may move for an order under
Sec. 4.831 with respect to any objection to or other failure to answer
an interrogatory.
(c) Interrogatories shall relate to any matter not privileged which
is relevant to the subject matter of the hearing.
Sec. 4.830 Production of documents and things and entry upon land for
inspection and other purposes.
(a) After the notice of hearing has been filed, any party may serve
on any other party a request to produce and/or permit the party, or
someone acting on his behalf, to inspect and copy any designated
documents, phonorecords, and other data compilations from which
information can be obtained and which are in the possession, custody, or
control of the party upon whom the request is served. If necessary,
translation of data compilations shall be done by the party furnishing
the information.
(b) After the notice of hearing has been filed, any party may serve
on any other party a request to permit entry upon designated property in
the possession or control of the party upon whom the request is served
for the purpose of inspection, measuring, surveying or photographing,
testing, or sampling the property or any designated object.
(c) Each request shall set forth with reasonable particularity the
items to be inspected and shall specify a reasonable time, place, and
manner of making the inspection and performing the related acts.
(d) The party upon whom the request is served shall respond within
15 days after the service of the request. The response shall state, with
respect to each item, that inspection and related activities will be
permitted as requested, unless there are objections in which case the
reasons for each objection shall be stated. The party submitting the
request may move for an order under Sec. 4.831 with respect to any
objection to or other failure to respond.
Sec. 4.831 Sanctions.
(a) A party, upon reasonable notice to other parties and all persons
affected thereby, may move for an order as follows:
(1) If a deponent fails to answer a question propounded or submitted
under Sec. 4.827(c), or a corporation or other entity fails to make a
designation under Sec. 4.827(b)(3), or a party fails to answer an
interrogatory submitted under Sec. 4.829, or if a party, under
Sec. 4.830 fails to respond that inspection will be permitted or fails
to permit inspection, the discovering party may move for an order
compelling an answer, a designation, or inspection.
(2) An evasive or incomplete answer is to be treated as a failure to
answer.
(b) If a party or an agent designated to testify fails to obey an
order to permit discovery, the administrative law judge may make such
orders as are just, including:
(1) That the matters regarding which the order was made or any other
designated facts shall be established in accordance with the claim of
the party obtaining the order;
(2) Refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting him from introducing
designated matters in evidence.
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(c) If a party or an agent designated to testify fails after proper
service (1) to appear for his deposition, (2) to serve answers or
objections to interrogatories submitted under Sec. 4.829 or (3) to serve
a written response to a request for inspection, submitted under
Sec. 4.830, the administrative law judge on motion may make such orders
as are just, including those authorized under paragraphs (b) (1) and (2)
of this section.
Sec. 4.832 Consultation and advice.
(a) The administrative law judge shall not consult any person, or
party, on any fact in issue or on the merits of the matter before him
unless upon notice and opportunity for all parties to participate.
(b) No employee or agent of the Federal Government engaged in the
investigation and prosecution of a proceeding governed by these rules
shall participate or advise in the rendering of any recommended or final
decision, except as witness or counsel in the proceeding.
[38 FR 21162, Aug. 6, 1973, as amended at 50 FR 43706, Oct. 29, 1985]
Prehearing
Sec. 4.833 Prehearing conferences.
(a) Within 15 days after the answer has been filed, the
administrative law judge will establish a prehearing conference date for
all parties including persons or organizations whose petition requesting
party status has not been ruled upon. Written notice of the prehearing
conference shall be sent by the administrative law judge.
(b) At the prehearing conference the following matters, among
others, shall be considered: (1) Simplification and delineation of the
issues to be heard; (2) stipulations; (3) limitation of number of
witnesses; and exchange of witness lists; (4) procedure applicable to
the proceeding; (5) offers of settlement; and (6) scheduling of the
dates for exchange of exhibits. Additional prehearing conferences may be
scheduled at the discretion of the administrative law judge, upon his
own motion or the motion of a party.
Hearing
Sec. 4.834 Purpose.
(a) The hearing is directed primarily to receiving factual evidence
and expert opinion testimony related to the issues in the proceeding. A
hearing will be held only in cases where issues of fact must be resolved
in order to determine whether the applicant or recipient has failed to
comply with one or more applicable requirements of title VI of the Civil
Rights Act of 1964 (sec. 602, 42 U.S.C. 2000d-1) and part 17 of this
title. However, this shall not prevent the parties from entering into a
stipulation of the facts.
(b) If all facts are stipulated, the proceedings shall go to
conclusion in accordance with part 17 of this title and the rules in
this subpart.
(c) In any case where it appears from the answer of the applicant or
recipient to the notice of hearing or notice of opportunity to request a
hearing, from his failure timely to answer, or from his admissions or
stipulations in the record that there are no matters of material fact in
dispute, the administrative law judge may enter an order so finding,
vacating the hearing date if one has been set, and fixing the time for
the submission of evidence by the Government for the record. Thereafter,
the proceedings shall go to conclusion in accordance with part 17 of
this title and the rules in this subpart. An appeal from such order may
be allowed in accordance with the rules for interlocutory appeal in
Sec. 4.823.
Sec. 4.835 Evidence.
Formal rules of evidence will not apply to the proceeding.
Irrelevant, immaterial, unreliable, and unduly repetitious evidence will
be excluded from the record of a hearing. Hearsay evidence shall not be
inadmissible as such.
Sec. 4.836 Official notice.
Whenever a party offers a public document, or part thereof, in
evidence, and such document, or part thereof, has been shown by the
offeror to be reasonably available to the public, such document need not
be produced or marked for identification, but may be offered for
official notice as a public
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document item by specifying the document or relevant part thereof.
Official notice may also be taken of other matters, at the discretion of
the administrative law judge.
Sec. 4.837 Testimony.
Testimony shall be given under oath by witnesses at the hearing. A
witness shall be available for cross-examination, and, at the discretion
of the administrative law judge, may be cross-examined without regard to
the scope of direct examination as to any matter which is material to
the proceeding.
Sec. 4.838 Objections.
Objections to evidence shall be timely, and the party making them
shall briefly state the ground relied upon.
Sec. 4.839 Exceptions.
Exceptions to rulings of the administrative law judge are
unnecessary. It is sufficient that a party, at the time the ruling of
the administrative law judge is sought, makes known the action which he
desires the administrative law judge to take, or his objection to an
action taken, and his ground therefor.
Sec. 4.840 Offer of proof.
An offer of proof made in connection with an objection taken to any
ruling of the administrative law judge excluding proffered oral
testimony shall consist of a statement of the substance of the evidence
which counsel contends would be adduced by such testimony. If the
excluded evidence consists of evidence in written form or consists of
reference to documents, a copy of such evidence shall be marked for
identification and shall accompany the record as the offer of proof.
Sec. 4.841 Official transcript.
An official reporter will be designated for all hearings. The
official transcripts of testimony and argument taken, together with any
exhibits, briefs, or memoranda of law filed therewith, shall be filed
with the administrative law judge. Transcripts may be obtained by the
parties and the public from the official reporter at rates not to exceed
the applicable rates fixed by the contract with the reporter. Upon
notice to all parties, the administrative law judge may authorize such
corrections to the transcript as are necessary to accurately reflect the
testimony.
Posthearing Procedures
Sec. 4.842 Proposed findings of fact and conclusions of law.
Within 30 days after the close of the hearing each party may file,
or the administrative law judge may request, proposed findings of fact
and conclusions of law together with supporting briefs. Such proposals
and briefs shall be served on all parties and amici. Reply briefs may be
submitted within 15 days after receipt of the initial proposals and
briefs. Reply briefs should be filed and served on all parties and
amici.
Sec. 4.843 Record for decision.
The administrative law judge will make his decision upon the basis
of the record before him. The transcript of testimony, exhibits, and all
papers, documents, and requests filed in the proceedings, shall
constitute the record for decision and may be inspected and copied.
Sec. 4.844 Notification of right to file exceptions.
The provisions of Sec. 17.9 of this title govern the making of
decisions by administrative law judges, the Director, Office of Hearings
and Appeals, and the Secretary. An administrative law judge shall, in
any initial decision made by him, specifically inform the applicant or
recipient of his right under Sec. 17.9 of this title to file exceptions
with the Director, Office of Hearings and Appeals. In instances in which
the record is certified to the Director, Office of Hearings and Appeals,
or he reviews the decision of an administrative law judge, he shall give
the applicant or recipient a notice of certification or notice of review
which specifically informs the applicant or recipient that, within a
stated period, which shall not be less than 30 days after service of the
notice, he may file briefs or other written statements of his
contentions.
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Sec. 4.845 Final review by Secretary.
Paragraph (f) of Sec. 17.9 of this title requires that any final
decision of an administrative law judge or of the Director, Office of
Hearings and Appeals, which provides for the suspension or termination
of, or the refusal to grant or continue Federal financial assistance, or
the imposition of any other sanction available under part 17 of this
title or the Act, shall be transmitted to the Secretary. The applicant
or recipient shall have 20 days following service upon him of such
notice to submit to the Secretary exceptions to the decision and
supporting briefs or memoranda suggesting remission or mitigation of the
sanctions proposed. The Director shall have 10 days after the filing of
the exceptions and briefs in which to reply.
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