Page images

amended only by leave of the presiding officer. A respondent shall file his answer to an amended notice within the time remaining for filing the answer to the original notice or within 10 days after service of the amended notice, whichever period may be the longer, unless the presiding officer otherwise orders. $ 81.54 Request for hearing.

Within 20 days after service of a notice of opportunity for hearing which does not fix a date for hearing the respondent, either in his answer or in a separate document, may request a hearing. Failure of the respondent to request a hearing shall be deemed a waiver of the right to a hearing and to constitute his consent to the making of a decision on the basis of such information as is available. $ 81.55 Consolidation.

The responsible Department official 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 proceeding consolidated subsequently to service of the notice of hearing or opportunity for hearing shall be promptly served with notice of such consolidation. $ 81.56 Motions,

Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged. If made before or after the hearing, these matters shall be in writing. If made at the hearing, they may be stated orally; but the presiding officer may require that they be reduced to writing and filed and served on all parties in the same manner as a formal motion. Motions, answers, and replies shall be addressed to the presiding officer, if the case is neding before him. A repetitious motion will not be entertained. $ 81.57 Responses to motions and peti

tions. Within 8 days after a written motion or petition is served, or such other period as the reviewing authority or the presiding officer may fix, any party may file a response thereto. An immediate oral response may be made to an oral motion. $ 81.58 Disposition of motions and pe

titions. The reviewing authority or the presiding officer may not sustain or grant a

written motion or petition 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. Motions and petitions submitted to the reviewing authority or the presiding officer, respectively, and not disposed of in separate rulings or in their respective decisions will be deemed denied. Oral arguments shall not be held on written motions or petitions unless the presiding officer in his discretion expressly so orders. Subpart G-Responsibilities and

Duties of Presiding Officer $ 81.61 Who presides.

A hearing examiner assigned under 5 U.S.C. 3105 or 3344 (formerly sec. 11 of the Administrative Procedure Act) shall preside over the taking of evidence in any hearing to which these rules of procedure apply. $ 81.62 Designation of hearing exam

iner. The designation of the hearing examiner as presiding officer shall be in writing, and shall specify whether the examiner is to make an initial decision or to certify the entire record including his recommended findings and proposed decision to the reviewing authority, and may also fix the time and place of hearing. A copy of such order shall be served on all parties. After service of an order designating a hearing examiner to preside, and until such examiner makes his decision, motions and petitions shall be submitted to him. In the case of the death, illness, disqualification or unavailability of the designated hearing examiner, another hearing examiner may be designated to take his place. § 81.63 Authority of presiding officer.

The presiding officer shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order. He shall have all powers necessary to these ends, including (but not limited to) the power to:

(a) Arrange and issue notice of the date, time, and place of hearings, or, upon due notice to the parties, to change the date, time, and place of hearings previously set.

(b) Hold conferences to settle, simpli- admissions or stipulations in the record, fy, or fix the issues in a proceeding, or that there are no matters of material to consider other matters that may aid fact in dispute, the reviewing authority in the expeditious disposition of the or presiding officer may enter an order proceeding.

so finding, vacating the hearing date if (c) Require parties and amici curiae one has been set, and fixing the time for to state their position with respect to the filing briefs under $ 81.101. Thereafter various issues in the proceeding.

the proceedings shall go to conclusion in (d) Administer oaths and affirma- accordance with Subpart J of this part. tions.

The presiding officer may allow an appeal (e) Rule on motions, and other pro- from such order in accordance with cedural items on matters pending before $ 81.86. him. (f) Regulate the course of the hearing

8 81.73 Testimony. and conduct of counsel therein.

Testimony shall be given orally under (g) Examine witnesses and direct oath or affirmation by witnesses at the witnesses to testify.

hearing; but the presiding officer, in his (h) Receive, rule on, exclude or limit discretion, may require or permit that evidence.

the direct testimony of any witness be (1) Fix the time for filing motions, pe- prepared in writing and served on all titions, briefs, or other items in matters parties in advance of the hearing. Such pending before him.

testimony may be adopted by the witness (j) Issue initial or recommended de- at the hearing, and filed as part of the cisions.

record thereof. Unless authorized by the (k) Take any action authorized by the presiding officer, witnesses will not be rules in this part or in conformance with permitted to read prepared testimony the provisions of 5 U.S.C. 551-559 (the Into the record. Except as provided in Administrative Procedure Act).

$$ 81.75 and 81.76, witnesses shall be

available at the hearing for crossSubpart H—Hearing Procedures

examination. $ 81.71 Statement of position and trial § 81.74 Exhibits. briefs.

Proposed exhibits shall be exchanged The presiding officer may require par- at the prehearing conference, or otherties and amici curiae to file written

wise prior to the hearing if the presiding statements of position prior to the be

officer so requires. Proposed exhibits not ginning of a hearing. The presiding of

so exchanged may be denied admission as ficer may also requre the parties to sub- evidence. The authenticity of all promit trial briefs.

posed exhibits exchanged prior to hearing $ 81.72 Evidentiary purpose.

will be deemed admitted unless written

objection thereto is filed prior to the (a) The hearing is directed to receiv

hearing or unless good cause is shown at ing factual evidence and expert opinion

the hearing for failure to file such written testimony related to the issues in the pro

objection. ceeding. Argument will not be received in evidence; rather it should be presented $81.75 Affidavits. in statements, memoranda, or briefs, as An affidavit is not inadmissible as such. determined by the presiding officer. Brief Unless the presiding officer fixes other opening statements, which shall be lim- time periods affidavits shall be filed and ited to statement of the party's position served on the parties not later than 15 and what he intends to prove, may be days prior to the hearing; and not less made at hearings.

than 7 days prior to hearing a party may (b) Hearings for the reception of evi- file and serve written objection to any dence will be held only in cases where is- affidavit on the ground that he believes sues of fact must be resolved in order to

it necessary to test the truth of assertions determine whether the respondent has therein at hearing. In such event the failed to comply with one or more appli- assertions objected to will not be recable requirements of Part 80 of this ceived in evidence unless the affiant is title. In any case where it appears from made available for cross-examination, or the respondent's answer to the notice of the presiding officer determines that hearing or opportunity for hearing, from cross-examination is not necessary for his failure timely to answer, or from his the full and true disclosure of facts re

ferred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing. $ 81.76 Depositions.

Upon such terms as may be just, for the convenience of the parties or of the Department, the presiding officer may authorize or direct the testimony of any witness to be taken by deposition. $ 81.77 Admissions as to facts and docu

ments. Not later than 15 days prior to the scheduled date of the hearing except for good cause shown, or prior to such earlier date as the presiding officer may order, 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 of which an admission is requested shall be deemed admitted, unless within a period designated in the request (not less than 10 days after service thereof, or within such further time as the presiding officer or the reviewing authority if no presiding officer has yet been designated may allow upon motion and notice) the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny such matters. Copies of requests for admission and answers thereto shall be served on all parties. Any admission made by a party to such request is only for the purposes of the pending proceeding, or any proceeding or action instituted for the enforcement of any order entered therein, and shall not constitute an admission by him for any other purpose or be used against him in any other proceeding or action. $ 81.78 Evidence.

Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded. $ 81.79 Cross-examination.

A witness may be cross-examined on any matter material to the proceeding

without regard to the scope of his direct examination. § 81.80

Unsponsored written material. Letters expressing views or urging action and other unsponsored written material regarding matters in issue in a hearing will be placed in the correspondence section of the docket of the proceeding. These data are not deemed part of the evidence or record in the hearing. & 81.81 Objections.

Objections to evidence shall be times and briefly state the ground relied upon $ 81.82 Exceptions to rulings of presid.

ing officer unnecessary. Exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is sought, makes known the action which he desires the presiding officer to take, or his objection to an action taken, and his grounds therefor. $ 81.83 Official notice.

Where official notice is taken or is to be taken of a material fact not appearing in the evidence of record, any party, on timely request, shall be afforded an opportunity to show the contrary. $ 81.84 Public document items.

Whenever there is offered (in whole or in part) a 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. $ 81.85 Offer of proof.

An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the

evidence which counsel contends would shall constitute the exclusive record for be adduced by such testimony; and, if decision. the excluded evidence consists of evidence in documentary or written form

Subpart 1—Posthearing Procedures, or of reference to documents or records,

Decisions a copy of such evidence shall be marked

8 81.101 Posthearing briefs: proposed for identification and shall accompany findings and conclusions. the record as the offer of proof.

(a) The presiding officer shall fix the $ 81.86 Appeals from ruling of presid- time for filing posthearing briefs, which ing officer.

may contain proposed findings of fact Rulings of the presiding officer may and conclusions of law, and, if permitted, not be appealed to the reviewing authori- reply briefs. ty prior to his consideration of the en

(b) Briefs should include a summary tire proceeding except with the consent of the evidence relied upon together with of the presiding officer and where he cer- references to exhibit numbers and pages tifies on the record or in writing that of the transcript, with citations of the the allowance of an interlocutory appeal

authorities relied upon. is clearly necessary to prevent excep- $ 81.102 Decisions following hearing. tional delay, expense, or prejudice to any party, or substantial detriment to the

When the time for submission of postpublic interest. If an appeal is allowed,

hearing briefs has expired, the presiding any party may file a brief with the re

officer shall certify the entire record, inviewing authority within such period as

cluding his recommended findings and the presiding officer directs. No oral proposed decision, to the responsible Deargument will be heard unless the re- partment official; or if so authorized he viewing authority directs otherwise. At

shall make an initial decision. A copy of any time prior to submission of the pro- the recommended findings and proposed ceeding to it for decision, the reviewing

decision, or of the initial decision, shall authority may direct the presiding officer

be served upon all parties, and amici, if to certify any question or the entire rec

any. ord to it for decision. Where the entire & 81.103 Exceptions to initial or recomrecord is so certified, the presiding officer mended decisions. shall recommend a decision.

Within 20 days after the mailing of Subpart 1-The Record

an initial or recommended decision, any $ 81.91 Official transcript.

party may file exceptions to the decision,

stating reasons therefor, with the reviewThe Department will designate the of- ing authority. Any other party may file ficial reporter for all hearings. The of- a response thereto within 30 days after ficial transcripts of testimony taken, to- the mailing of the decision. Upon the gether with any exhibits, briefs, or filing of such exceptions, the reviewing memoranda of law filed therewith shall authority shall review the decision and be filed with the Department. Transcripts issue its own decision thereon. of testimony in hearings may be obtained from the official reporter by the parties

$ 81.104 Final decisions. and the public at rates not to exceed (a) Where the hearing is conducted the maximum rates fixed by the contract by a hearing examiner who makes an between the Department and the re- initial decision, if no exceptions thereto porter. Upon notice to all parties, the are filed within the 20-day period specipresiding officer may authorize correc

fied in § 81.103, such decision shall betions to the transcript which involve mat

come the final decision of the Departters of substance.

ment, and shall constitute "final agency

action" within the meaning of 5 U.S.C. $ 81.92 Record for decision.

704 (formerly section 10(c) of the AdThe transcript of testimony, exhibits, ministrative Procedure Act), subject to and all papers and requests filed in the the provisions of $ 81.106. proceedings, except the correspondence (b) Where the hearing is conducted section of the docket, including rulings by a hearing examiner who makes a recand any recommended or initial decision ommended decision, or upon the filing


of exceptions to a hearing examiner's own motion. If the Secretary grants the initial decision, the reviewing authority requested review, or if he serves notice shall review the recommended or initial of intent to review upon his own motion, decision and shall issue its own decision each party to the decision shall have thereon, which shall become the final de. 20 days following notice of the Secrecision of the Department, and shall con- tary's proposed action within which to stitute "final agency action” within the file exceptions to the decision and supmeaning of 5 U.S.C. 704 (formerly section porting briefs an memoranda, or briefs 10(c) of the Administrative Procedure and memoranda in support of the deciAct), subject to the provisions of $ 81.106. sion. Failure of a party to request review

(c) All final decisions shall under this paragraph shall not be promptly served on all parties, and amici, deemed a failure to exhaust adminif any.

istrative remedies for the purpose of $ 81.105 Oral argument to the review.

obtaining judicial review. ing authority.

$ 81.107 Service on amici curiae. (a) If any party desires to argue a All briefs, exceptions, memoranda, recase orally on exceptions or replies to quests, and decisions referred to in this exceptions to an initial or recommended subpart J shall be served upon amici decision, he shall make such request in curiae at the same times and in the same writing. The reviewing authority may manner required for service on parties. grant or deny such requests in its dis- Any written statements of position and cretion. If granted, it will serve notice trial briefs required of parties under of oral argument on all parties. The $ 81.71 shall be served on amici. notice will set forth the order of presentation, the amount of time allotted,

Subpart K-Judicial Standards of and the time and place for argument.

Practice The names of persons who will argue $ 81.111 Conduct. should be filed with the Department hearing clerk not later than 7 days be

Parties and their representatives are fore the date set for oral argument.

expected to conduct themselves with (b) The purpose of oral argument is

honor and dignity and observe judicial to emphasize and clarify the written ar

standards of practice and ethics in all gument in the briefs. Reading at length

proceedings. They should not indulge in from the brief or other texts is not

offensive personalities, unseemly wranfavored. Participants should confine

gling, or intemperate accusations or their arguments to points of controlling

characterizations. A representative of importance and to points upon which

any party whether or not a lawyer shall exceptions have been filed. Consolida

observe the traditional responsibilities of tions of appearances at oral argument

lawyers as officers of the court and use by parties taking the same side will per

his best efforts to restrain his client from mit the parties' interests to be presented

improprieties in connection with a more effectively in the time allotted.

proceeding. (c) Pamphlets, charts, and other $ 81.112 Improper conduct. written material may be presented at With respect to any proceeding it is oral argument only if such material is

improper for any interested person to atlimited to facts already in the record

tempt to sway the judgment of the reand is served on all parties and filed with

viewing authority by undertaking to the Department hearing clerk at least

bring pressure or influence to bear upon 7 days before the argument.

any officer having a responsibility for a $ 81.106 Review by the Secretary.

decision in the proceeding, or his deci

sional staff. It is improper that such inWithin 20 days after an initial decision becomes a final decision pursuant to

terested persons or any members of the

Department's staff or the presiding off$ 81.104(a) or within 20 days of the mail

cer give statements to communications ing of a final decision referred to in media, by paid advertisement or other$ 81.104(b), as the case may be, a party wise, designed to influence the judgment may request the Secretary to review the of any officer having a responsibility for final decision. The Secretary may grant a decision in the proceeding, or his deor deny such request, in whole or in part, cisional staff. It is improper for any peror serve notice of his intent to review son to solicit communications to any the decision in whole or in part upon his

such officer, or his decisional staff, other

« PreviousContinue »