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duction 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. $ 4.828 Use of depositions at hearing.
(a) Any part or all of a deposition so far as admissible under $ 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.
(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.
§ 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 ting the request may move for an order under $ 4.831 with respect to any objection to or other failure to respond.
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 $ 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.
§ 4.830 Production of documents and
things and entry upon land for inspec
tion 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 rea. sonable 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 objec. tion shall be stated. The party submit
8 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 $ 4.827(c), or a corporation or other entity fails to make a designation under $ 4.827(b)(3), or a party fails to answer an interrogatory submitted under $ 4.829, or if a party, under $ 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.
(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 inter-, rogatories submitted under $ 4.829 or (3) to serve a written response to a re
§ 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 of this section.
$ 4.832 Ex parte communications.
(a) Written or oral communications involving any substantive or procedural issue in a matter subject to these proceedings, directed to the adminis
trative law judge, the Director, or the termine whether the applicant or reDirector, Office of Hearings and Ap- cipient has failed to comply with one peals, shall be deemed ex parte com- or more applicable requirements of munications and are not to be consid Title VI of the Civil Rights Act of 1964 ered part of any record or the basis for (sec. 602, 42 U.S.C. 2000d-1) and Part any official decision, unless the com- 17 of this title. However, this shall not munication is made by motion pursu- prevent the parties from entering into ant to these rules.
a stipulation of the facts. (b) The administrative law judge
(b) If all facts are stipulated, the shall not consult any person, or party,
proceedings shall go to conclusion in on any fact in issue or on the merits of
accordance with Part 17 of this title the matter before him unless upon
and the rules in this subpart. notice and opportunity for all parties to participate.
(c) In any case where it appears (c) No employee or agent of the Fed
from the answer of the applicant or
recipient to the notice of hearing or eral Government engaged in the investigation and prosecution of a proceed
notice of opportunity to request a ing governed by these rules shall par
hearing, from his failure timely to ticipate or advise in the rendering of answer, or from his admissions or stipany recommended or final decision, ulations in the record that there are except as witness or counsel in the no matters of material fact in dispute, proceeding.
the administrative law judge may
enter an order so finding, vacating the PREHEARING
hearing date if one has been set, and
fixing the time for the submission of $ 4.833 Prehearing conferences.
evidence by the Government for the (a) Within 15 days after the answer
record. Thereafter, the proceedings has been filed, the administrative law shall go to conclusion in accordance judge will establish a prehearing con
with Part 17 of this title and the rules ference date for all parties including
in this subpart. An appeal from such persons or organizations whose peti
order may be allowed in accordance tion requesting party status has not
with the rules for interlocutory appeal been ruled upon. Written notice of the
in $ 4.823. prehearing conference shall be sent by the administrative law judge.
4.835 Evidence. (b) At the prehearing conference the following matters, among others, shall Formal rules of evidence will not be considered: (1) Simplification and apply to the proceeding. Irrelevant, delineation of the issues to be heard; immaterial, unreliable, and unduly (2) stipulations; (3) limitation of repetitious evidence will be excluded number of witnesses; and exchange of from the record of a hearing. Hearsay witness lists; (4) procedure applicable evidence shall not be inadmissible as to the proceeding; (5) offers of settle such. ment; and (6) scheduling of the dates for exchange of exhibits. Additional & 4.836 Official notice. prehearing conferences may be sched
Whenever a party offers a public uled at the discretion of the adminis
document, or part thereof, in evidence, trative law judge, upon his own
and such document, or part thereof, motion or the motion of a party.
has been shown by the offeror to be HEARING
reasonably available to the public,
such document need not be produced $ 4.834 Purpose.
or marked for identification, but may (a) The hearing is directed primarily
be offered for official notice as a to receiving factual evidence and
public document item by specifying expert opinion testimony related to
the document or relevant part thereof. the issues in the proceeding. A hearing
Official notice may also be taken of will be held only in cases where issues other matters, at the discretion of the of fact must be resolved in order to de- administrative law judge.
$ 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.
§ 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 tran
8 4.844 Notification of right to file excep
tions. The provisions of $ 17.9 of this title govern the making of decisions by ad. ministrative 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 $ 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.
§ 4.845 Final review by Secretary.
ed within the State of Alaska. The Paragraph (f) of $ 17.9 of this title Alaska Native Claims Appeal Board requires that any final decision of an
has its headquarters within the State administrative law judge or of the Di. of Alaska. The mailing address of the rector, Office of Hearings and Ap Board is: U.S. Department of the Intepeals, which provides for the suspen rior, Alaska Native Claims Appeal sion or termination of, or the refusal Board, P.O. Box 2433, Anchorage, to grant or continue Federal financial
tinue Federal financial Alaska 99510. assistance, or the imposition of any (c) Where the Alaska Native Claims other sanction available under Part 17 Appeal Board determines that one or of this title or the Act, shall be trans- more issues raised on an appeal fall mitted to the Secretary. The applicant within the jurisdiction of another Apor recipient shall have 20 days follow- peals Board of the Department, it ing service upon him of such notice to shall certify the record or a part submit to the Secretary exceptions to thereof to the Board having jurisdicthe decision and supporting briefs or tion, or to the Secretary, for determimemoranda suggesting remission or nation. When an appeal is taken to anmitigation of the sanctions proposed. other Appeals Board of the DepartThe Director shall have 10 days after ment and such other Board deterthe filing of the exceptions and briefs mines that one or more issues raised in which to reply.
on appeal fall within the jurisdiction
of the Alaska Native Claims Appeal Subpart J—Special Rules Applicable Board, such other Board shall certify
to the Alaska Native Claims Settle the record or a part thereof to the ment Act Hearings and Appeals
Alaska Native Claims Appeal Board, or
to the Secretary, for determination. SOURCE: 40 FR 33172, Aug. 6, 1975, unless
When one Appeals Board certifies a
record to another Board of the Deotherwise amended.
partment, or to the Secretary, the $ 4.900 References.
appeal to such other Board or the SecGeneral appeals procedures are con
retary shall be deemed timely filed if tained in Subparts A and B of this
the appeal was properly filed in acpart.
cordance with the law and regulations
applicable to appeals to the Board in $ 4.901 Appeals; general.
which the appeal was originally filed. (a) Unless otherwise provided, ap
Where issues on appeal have been sey
ered and referred to a second Board of peals to the Secretary under the Act
the Department, each Board may prorelating to land selection shall be to the Alaska Native Claims Appeal
ceed with its appeal and issue separate Board. The Alaska Native Claims
decisions, or upon completion of con
sideration of the questions referred Appeal Board shall be personally appointed by the Secretary. At least one
from the Board in which the appeal
was first filed, the record and determimember of the Board shall be familiar with Native village life. Among those
nation of such other Board or the Secotherwise qualified to serve on the
retary may be certified to the Board in Board, preference will be given to
which the appeal was first filed. those familiar with Native village life.
$ 4.902 Who may appeal. The Board is authorized to decide finally for the Secretary appeals under Any party who claims a property inthe Act, except, the Board shall not terest in land affected by a determinaconsider appeals relating to enroll- tion from which an appeal to the ment of Alaska Natives, and appeals Alaska Native Claims Appeal Board is from decisions on village eligibility allowed, or an agency of the Federal shall be personally approved by the Government, may appeal as provided Secretary.
in this subpart. However, a regional (b) All hearings held in connection corporation shall have the right of with appeals to the Alaska Native appeal in any case involving land selecClaims Appeal Board shall be conduct- tions.