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(d) Exhibits. Proposed exhibits shall less than ten days after service thereof, be exchanged at the pre-hearing con- or within such further time as the adference, or otherwise before the hear- ministrative law judge may allow upon ing if the administrative law judge so motion and notice) the party to whom requires. Proposed exhibits not the request is directed serves upon the changed may be denied admission as requesting party a sworn statement eievidence. The authenticity of all pro- ther denying specifically the matters posed exhibits exchanged before hear- of which an admission is requested or ing will be deemed admitted unless setting forth in detail the reasons why written objection is filed before the he cannot truthfully either admit or hearing, or unless good cause is shown deny such matters. Copies of requests at the hearing for failure to file such for admission and answers thereto written objection.

shall be served on all parties. Any ad(e) Affidavits. An affidavit is not inad- mission made by a party to such remissible as such. Unless the adminis- quest is only for the purposes of the trative law judge fixes other time peri- pending proceeding, or any proceeding ods, affidavits shall be filed and served or action instituted for the enforceon the parties not later than 15 days ment of any order entered in the probefore the hearing. Not less than seven ceeding, and shall not constitute an addays before the hearing, a party may mission by him or her for any other file and serve written objection to any purposes or be used against him or her affidavit on the ground that it is nec- in any other proceeding or action. essary to test the truth of assertions (h) Evidence. Irrelevant, immaterial, therein at hearing. In this event the as- unreliable, and unduly repetitious evisertions objected to will not be re- dence will be excluded. ceived in evidence unless the affiant is (i) Cross-examination. A witness may made available for cross-examination, be cross-examined on any matter mateor the administrative law judge deter- rial to the proceeding. mines that cross-examination is not (j) Unsponsored written material. Letnecessary for the full and true disclo- ters expressing views or urging action sure of facts referred to in such asser- and other unsponsored written matetions. Notwithstanding any objection, rial regarding matters in issue in a however, affidavits may be considered hearing will be placed in the corin the case of any respondent who respondence section of the docket of waives a hearing.

the proceeding. These data are not (1) Depositions. Upon such terms as deemed part of the evidence or record the administrative law judge deter- in the hearing. mines to be just, and for the conven- (k) Objections. Objections to evidence ience of the parties or of the Depart- shall be timely and briefly state the ment, the administrative law judge ground relied upon. may authorize or direct the testimony (1) Exceptions to rulings of administraof any witness to be taken by deposi- tive law judge unnecessary. Exceptions tion.

to rulings of the administrative law (g) Admissions as to facts and docu- judge are unnecessary. It is sufficient ments. Not later than 15 days before the that a party, at the time the ruling of scheduled date of the hearing except the administrative law judge is sought, for good cause shown, or such earlier makes known the action which he or date as the administrative law judge she desires the administrative law may order, any party may serve upon judge to take, or his or her objection to an opposing party a written request for an action taken, and his or her grounds the admission of the genuineness and therefor. authenticity of any relevant docu- (m) Official notice. Where official noments described in and exhibited with tice is taken or is to be taken of a mathe request, or for the admission of the terial fact not appearing in the evitruth of any relevant matters of fact dence of record, any party, on timely stated in the request. Each of the mat- request, shall be afforded an opporters of which an admission is requested tunity to show the contrary. shall be deemed admitted unless within (n) Public document items. Whenever a period designated in the request (not there is offered (in whole or in part) a

the administrative law judge shall recommend a decision.

(53 FR 20233, June 2, 1988; 53 FR 28115. July 26, 1988)

public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations), or a similar document issued by a State or its agencies, 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 document item by specifying the document or relevant part thereof.

(0) Offer of proof. An offer of proof made in connection with an objection taken to any ruling of the administrative law judge rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.

(p) Appeals from ruling of administrative law judge. Rulings of the administrative law judge may not be appealed to the Secretary before consideration of the entire proceeding, except with the consent of the administrative law judge and where he or she certifies on the record or in writing that the allowance of an interlocutory appeal is clearly necessary to prevent exceptional delay, expenses, or prejudice to any party, or substantial detriment to the public interest. If an appeal is allowed, any party may file a brief with the Secretary within such period as the administrative law judge directs. No oral argument will be heard unless the Secretary directs otherwise. At any time before submission of the proceeding for decision, the Secretary may direct the administrative law judge to certify any question or the entire record to him or her for decision. Where the entire record is certified,

$8.68 The record.

(a) Official transcript. The Department will designate the official reporter for all hearings. The official transcripts of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith shall be filed with the Department. Transcripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not to exceed the maximum rates fixed by the contract between the Department and the reporter. Upon notice to all parties, the administrative law judge may authorize corrections to the transcript which involve matters of substance.

(b) Record for decision. The transcript of testimony, exhibits, and all papers and requests filed in the proceedings, except the correspondence section of the docket, including rulings and any recommended or initial decision shall constitute the exclusive record for decision.


88.69 Posthearing procedures, deci

sions. (a) Posthearing briefs: Proposed findings and conclusions. (1) The administrative law judge shall fix the time for filing posthearing briefs, which may contain proposed findings of fact and conclusions of law and, if permitted, reply briefs.

(2) Briefs should include a summary of the evidence relied upon, together with references to exhibit numbers and pages of the transcript, with citations of the authorities relied upon.

(b) Decisions following hearing. When the time for submission of posthearing briefs has expired, the administrative law judge shall certify the entire record, including recommended findings and proposed decision, to the Secretary or, if so authorized, shall make an initial decision. A copy of the recommended findings and proposed decision, or of the initial decision, shall be served upon all parties, and amici, if any.

from the brief or other texts is not favored.

Participants should confine their arguments to points of controlling importance and to points upon which exceptions have been filed. Consolidation of appearances at oral argument by parties taking the same side will permit the parties' interests to be presented more effectively in the time allotted.

(3) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the Civil Rights docket clerk at least seven days before the argument.

(f) Service on amici curiae. All briefs, exceptions, memoranda, requests, and decisions referred to in $8.69 shall be served upon amici curiae at the same time and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under $8.67(a) shall be served on amici.

(c) Exceptions to initial or recommended decisions. Within 30 days after the mailing of an initial or recommended decision, any party may file exceptions to the decision, stating reasons therefor, with the Secretary. Any other party may file a response thereto within 45 days after the mailing of the decision. Upon the filing of such exceptions, the Secretary shall review the decision and issue a decision thereon.

(d) Final decisions. (1) The Secretary shall make the final decision in all proceedings under this part after expiration of all applicable time limits provided in paragraph (a) or (c) of this section.

(2) Where the hearing is conducted by an administrative law judge who makes an initial decision, if no excep tions thereto are filed within the 30day period specificed in paragraph (c) of this section, such initial decision shall become the final decision of the Secretary upon his or her approval thereof and shall constitute “final agency action” within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedure Act), subject to the provisions of paragraph (d)(3) of this section.

(3) The final decision of the Secretary is an "order" within the meaning of 5 U.S.C. 551(6) (formerly section 2(d) of the Administrative Procedure Act). (4) All final decisions shall

be promptly served on all parties, and amici, if any.

(e) Oral argument. (1) If any party desires to argue a case orally on exceptions or replies to exceptions to an initial or recommended decision, or upon review on initiative of the Secretary, he or she shall make such request in writing. The Secretary may grant or deny such requests in his or her discretion. If granted, notice of oral argument will be served on all parties. The Notice will set forth the order of presentation, the amount of time allotted, and the time and place for argument. The names of persons who will argue should be filed with the Civil Rights docket clerk not later than seven days before the date set for oral argument.

(2) The purpose of oral argument is to emphasize and clarify the written argument in the briefs. Reading at length

88.70 Judicial standards of practice.

(a) Conduct. Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in all proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party whether or not a lawyer shall observe the traditional responsibilities of lawyers as officers of the court and use his or her best effort to restrain his or her client from improprieties in connection with a proceeding.

(b) Improper conduct. With respect to any proceeding it is improper for any interested person to attempt to sway the judgment of the administrative law judge or Secretary by undertaking to bring pressure or influence to bear upon any officer having a responsibility for a decision in the proceeding, or his or her staff. It is improper that such interested persons or any members of the Department's staff or the administrative law judge give statements to communications media, by paid advertisement or otherwise, designed to influence the judgment of any officer having responsibility for a (f) Filing of ex parte communications. A prohibited communication in writing received by the Secretary, or by the administrative law judge shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in such memorandum may file a comment for inclusion in the docket if he or she considers the memorandum to be incorrect.

(53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988)

decision in the proceeding, or his or her staff. It is improper for any person to solicit communications to any such officer, or his/her staff, other than proper communications by parties or amici curiae.

(c) Ex parte communications. Only persons employed by or assigned to work with the administrative law judge or Secretary who perform no investigative or prosecuting function in connection with a proceeding shall communicate ex parte with the administrative law judge, the Secretary, or any employee or person involved in the decision process in such proceedings with respect to the merits of that or a factually related proceeding. The administrative law judge, the Secretary or any employee or person involved in the decisional process of a proceeding shall communicate ex parte with respect to the merits of that or a factually related proceeding only with persons who are employed by or assigned to work with them and who perform no investigative or prosecuting function in connection with the proceeding.

(d) Expeditious treatment. Requests for expeditious treatment of matters pending before the administrative law judge are deemed communications on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications should be in the form of a motion.

(e) Matter not prohibited. A request for information which merely inquires about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Such requests should be directed to the Civil Rights docket clerk. Communications with respect to minor procedural matters or inquiries or emergency requests for extensions of time are not deemed ex parte communications prohibited by paragraph (c) of this section. Where feasible, however, such communications should be by letter with copies to all parties. Ex parte communications between a respondent and the administrative law judge or the Secretary with respect to securing such respondent's voluntary compliance under $8.56 of this part are not prohibited.

88.71 Post-termination proceedings.

(a) An applicant or recipient adversely affected by the order terminating, discontinuing, or refusing Federal financial assistance in consequence of proceedings under this part may request the Secretary for an order authorizing payment, or permitting resumption, of Federal financial assistance. Such requests shall be in writing and shall affirmatively show that, since entry of the order, it has brought its program or activity into compliance with the requirements of this part, and shall set forth specifically, and in detail, the steps which it has taken to achieve such compliance. If the Secretary denies such request, the applicant or recipient shall be given an expeditious hearing if it so requests in writing and specifies why it believes the Secretary to have been in error. The request for such a hearing shall be addressed to the Secretary and shall be made within 30 days after the applicant or recipient is informed that the Secretary has refused to authorize payment or permit resumption of Federal financial assistance.

(b) In the event that a hearing shall be requested under paragraph (a) of this section, the hearing procedures established by this subpart shall be applicable to the proceedings, except as otherwise provided in this section.



Sec. 9.101 Purpose. 9.102 Applicability. 9.103 Definitions. 9.110 Self-evaluation. 9.111 Notice. 9.112_9.129 (Reserved) 9.130 General prohibitions against discrimi

nation. 9.131 Direct threat. 9.1329.139 (Reserved) 9.140 Employment. 9.141—9.148 (Reserved) 9.149 Program accessibility: discrimination

prohibited. 9.150 Program accessibility: existing facili

ties. 9.151 Program accessibility: new construc

tion and alterations. 9.152 Program accessibility: Alterations of

Property Disposition Program multifam

ily housing facilities. 9.153 Distribution of accessible dwelling

units. 9.154 Occupancy of accessible dwelling

units. 9.155 Housing adjustments. 9.160 Communications. 9.170 Compliance procedures.

AUTHORITY: 29 U.S.C. 794; 42 U.S.C. 3635(d).

SOURCE: 59 FR 31047, June 16, 1994, unless otherwise noted.

89.103 Definitions.

For purposes of this part:

Accessible: (1) When used with respect to the design, construction, or alteration of a facility or a portion of a facility other than an individual dwelling unit, means that the facility or portion of the facility when designed, constructed or altered, complies with applicable accessibility standards and can be approached, entered, and used by individuals with physical disabilities. The phrase "accessible to and usable by” is synonymous with accessible.

(2) When used with respect to the design, construction, or alteration of an individual dwelling unit, means that the unit is located on an accessible route and, when designed, constructed, altered or adapted, complies with applicable accessibility standards, and can be approached, entered, and used by individuals with physical disabilities. A unit that is on an accessible route and is adaptable and otherwise in compliance with the standards set forth in $9.151 is "accessible" within the meaning of this definition. When a unit in an existing facility which is being made accessible as a result of alterations is intended for use by a specific qualified individual with disabilities (e.g., a current occupant of such unit or of another unit under the control of the same agency, or an applicant on a waiting list), the unit will be deemed accessible if it meets the requirements of applicable standards that address the particular disability or impairment of such person.

Accessible route means a continuous unobstructed path connecting accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps and lifts.

ADA means the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 through 12213)

ADA Accessibility Guidelines (ADAAG) means the Accessibility Guidelines issued under the ADA, and which are codified in the Appendix to 39 CFR part 1191.

39.101 Purpose.

The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of disability in programs or activities conducted by Executive agencies or the United States Postal Service.

89.102 Applicability.

This part applies to all programs or activities conducted by the agency, except for programs or activities conducted outside the United States that do not involve individuals with disabilities in the United States.

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