witness is dead; or if the witness is at 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 witness 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.

§ 8.54 Interrogatories to parties.

(a) Any party may serve upon any other party written interrogatories after the notice of hearing has been filed.

(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 section 26(a)(1) with respect to any objection to or other failure to answer an interrogatory.

(c) Interrogatories may relate to any matter not privileged which is relevant to the subject matter of the hearing.

§ 8.55 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 permit the party, or someone acting

on his behalf, to inspect and copy any designated documents, phonorecords, or 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 latter party 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 reason for each objection shall be stated. The party submitting the request may move for an order under section 26(a)(1) with respect to any objection or other failure to respond.

§ 8.56 Sanctions.

(a) A party, upon reasonable notice to other parties, may move for an order as follows:

(1) If a deponent fails to answer a question propounded or submitted under section 22(c) or a corporation or other entity fails to make a designation under section 22(b)(3), or a party fails to answer an interrogatory submitted under section 24, or if a party, under section 25, 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 hearing examiner 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 interrogatories submitted under section 24, or (3) to serve a written response to a request for inspection, submitted under section 25, the hearing examiner on motion may make such orders as are just, including those authorized under paragraphs (b) (1) and (2) of this section.

§ 8.57 Ex parte communications.

(a) Written or oral communications involving any substantive or procedural issue in a matter subject to these rules, directed to the hearing examiner, the Director; the Director, Office of Federal Contract Compliance; or the Assistant Administrator for Enforcement and General Counsel, shall be deemed ex parte communications and are not to be considered part of any record or the basis for any official decision, unless the communication is made by motion pursuant to these rules.

(b) The hearing examiner shall not consult any person, or party, on any fact in issue or on the merits of any matter before him except upon notice and opportunity for all parties to participate.

(c) 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 the recommended or final decision, except as witness or counsel in the proceeding.

PREHEARING

§ 8.58 Prehearing conferences.

(a) Within 15 days after the answer has been filed, the hearing examiner will establish a prehearing conference date for all parties including persons whose petition requesting party status has not been ruled upon. Written notice of the prehearing conference shall be sent by the hearing examiner.

(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 hearing examiner, upon his own motion or the motion of a party.

HEARING

§ 8.59 Appearances.

In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall either present all his evidence or shall present such portion thereof as is sufficient to make a prima facie case before the hearing examiner. Failure to appear at a hearing shall be deemed to be a waiver of the right to be served with a copy of the hearing examiner's proposed decision and to file exceptions to it.

§ 8.60 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 in order to determine whether Respondent has failed to comply with one or more applicable requirements of the Executive Order, and rules, regulations, and orders thereunder. 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 §§ 8.68-8.73.

§ 8.61 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.

§ 8.62 Official notice.

Whenever a party offers a 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 document item by specifying the document or relevant part thereof. Official notice may also be taken of other matters, at the discretion of the hearing examiner.

§ 8.63 Testimony.

Testimony shall be given under oath by witnesses at the hearing. All witnesses shall be subject to cross-examination, and at the discretion of the hearing examiner, may be cross-examined without regard to the scope of direct examination as to any matter which is material to the proceeding.

§ 8.64 Objections.

Objections to evidence shall be timely, and the party making them shall briefly state the ground relied upon.

§ 8.65 Exceptions.

Exceptions to rulings of the hearing examiner are unnecessary. It is sufficient that a party, at the time the ruling of the hearing examiner is sought, makes known the action which he desires the hearing examiner to take, or his objection to an action taken, and his ground therefor.

§ 8.66 Offer of proof.

An offer of proof made in connection with an objection taken to any ruling of the hearing examiner 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.

§ 8.67 Official transcript.

An official reporter will be designated for all hearings. The official transcripts taken of testimony and argument, together with exhibits, briefs, or memoranda of law filed therewith, shall be filed with the hearing examiner. Transcripts may be obtained by the parties and the public from the official at rates not to exceed the applicable rates fixed by the contract with the reporter. Upon notice to all parties, the hearing examiner may authorize such corrections to the transcript as are necessary to accurately reflect the testimony.

POSTHEARING PROCEDURES

§ 8.68 Proposed findings of fact and conclusions of law.

Within 30 days after the close of the hearing each party may file, or the hearing examiner 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.

§ 8.69 Record for decision.

The hearing examiner will make his recommended findings, conclusions, and recommended decision upon the basis of the record before him. The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings except the correspondence section of the docket, shall constitute the record.

8 8.70 Recommended determination.

The hearing examiner shall, in an expeditious manner, rule on proposed findings and conclusions submitted by the parties and shall make recommended findings, conclusions, and de

cision. These rulings and recommendations shall be certified, together with the record for decision, to the Assistant Administrator for Enforcement and General Counsel for his decision. The rulings, recommended findings, conclusions and decision of the hearing examiner shall be served on all parties and amici curiae to the proceedings.

§ 8.71 Exceptions to recommended determination.

Within 30 days after receipt of the recommended determination, all parties to the proceeding may file with the Assistant Administrator for Enforcement and General Counsel, exceptions to the recommended findings, conclusions and decision of the hearing examiner, together with supporting briefs. Service of such exceptions and briefs shall be made on all parties and amici. Such briefs may be responded to within 15 days of their receipt. Responses shall be filed with the Assistant Administrator for Enforcement and General Counsel, and served on all parties and amici.

§ 8.72 Record.

After expiration of the time for filing briefs and exceptions, the Assistant Administrator for Enforcement and General Counsel shall make a decision on the basis of the record before him. The record includes the record before the hearing examiner, the rulings, the recommended findings, conclusions and decision of the hearing examiner, and the exceptions and briefs filed subsequent to the hearing examiner's decision.

§ 8.73 Final decision.

The Assistant Administrator for Enforcement and General Counsel may affirm, modify, or set aside in whole or in part the recommended findings, conclusions, and decision of the hearing examiner. The decision of the Assistant Administrator for Enforcement and General Counsel shall not be final without the approval of the Director.

for damage to or loss of property, for personal injury, or for death, alleged to have occurred by reason of the incident. A claim which should have been presented to EPA, but which was mistakenly addressed to or filed with another Federal agency, shall be deemed to be presented to EPA as of the date that the claim is received by EPA. A claim mistakenly addressed to or filed with EPA shall forthwith be transferred to the appropriate Federal agency, if ascertainable, or returned to the claimant.

(b) A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to final action by the Administrator, or his designee, or prior to the exercise of the claimant's option to bring suit under 28 U.S.C. 2675(a). Amendments shall be submitted in writing and signed by the claimant or his duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, EPA shall have 6 months in which to make a final disposition of the claim as amended and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of an amendment.

(c) Forms may be obtained and claims may be filed with the office, local, regional, or headquarters, of the constituent organization having jurisdiction over the employee involved in the accident or incident, or with the EPA Claims Officer, Waterside Mall Building, 401 M Street SW., Washington, D.C. 20460.

§ 10.3 Administrative claims; who may file.

(a) A claim for injury to or loss of property may be presented by the owner of the property interest which is the subject of the claim, his duly authorized agent, or his legal representative.

(b) A claim for personal injury may be presented by the injured person, his duly authorized agent, or his legal representative.

(c) A claim based on death may be presented by the executor or administrator of the decedent's estate or by any other person legally entitled to

assert such a claim under applicable State law.

(d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the insurer or the insured individually as their respective interests appear, or jointly. Whenever an insurer presents a claim asserting the rights of a subrogee, he shall present with his claim appropriate evidence that he has the rights of a subrogee.

(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

§ 10.4 Evidence to be submitted.

(a) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information:

(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent.

(2) Decedent's employment or occupation at time of death, including his monthly or yearly salary or earnings (if any), and the duration of his last employment or occupation.

(3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of his death.

(4) Degree of support afforded by the decendent to each survivor dependent upon him for support at the time of his death.

(5) Decedent's general physical and mental condition before death.

(6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payments for such expenses.