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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 of fered 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.
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 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 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.
8 8.55 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 permit the party, or someone acting
(b) If a party or an agent designated
PREHEARING to testify fails to obey an order to permit discovery, the hearing examin. 8 8.58 Prehearing conferences. er may make such orders as are just, (a) Within 15 days after the answer including:
has been filed, the hearing examiner (1) That the matters regarding will establish a prehearing conference which the order was made or any date for all parties including persons other designated facts shall be estab whose petition requesting party status lished in accordance with the claim of has not been ruled upon. Written the party obtaining the order;
notice of the prehearing conference (2) Refusing to allow the disobedient shall be sent by the hearing examiner. party to support or oppose designated (b) At the prehearing conference the claims or defenses, or prohibiting him following matters, among others, shall from introducing designated matters be considered: (1) Simplification and in evidence.
delineation of the issues to be heard; (c) If a party or an agent designated (2) stipulations; (3) limitation of to testify fails after proper service (1)
number of witnesses and exchange of to appear for his deposition, (2) to
witness lists; (4) procedure applicable serve answers or objections to inter
to the proceeding; (5) offers of settlerogatories submitted under section 24,
ment; and (6) scheduling of the dates or (3) to serve a written response to a
for exchange of exhibits. Additional request for inspection, submitted
prehearing conferences may be schedunder section 25, the hearing examin
uled at the discretion of the hearing
examiner, upon his own motion or the er on motion may make such orders as are just, including those authorized
motion of a party. under paragraphs (b) (1) and (2) of
HEARING this section. $ 8.57 Ex parte communications.
8 8.59 Appearances.
In the event that a party appears at (a) Written or oral communications
the hearing and no party appears for involving any substantive or procedur
the opposing side, the party who is al issue in a matter subject to these
present shall either present all his evirules, directed to the hearing examin
dence or shall present such portion er, the Director; the Director, Office
thereof as is sufficient to make a of Federal Contract Compliance; or
prima facie case before the hearing exthe Assistant Administrator for En
aminer. Failure to appear at a hearing forcement and General Counsel, shall
shall be deemed to be a waiver of the be deemed ex parte communications right to be served with a copy of the and are not to be considered part of hearing examiner's proposed decision any record or the basis for any official and to file exceptions to it. decision, unless the communication is made by motion pursuant to these 88.60 Purpose. rules.
(a) The hearing is directed primarily (b) The hearing examiner shall not to receiving factual evidence and consult any person, or party, on any expert opinion testimony related fact in issue or on the merits of any the issues in the proceeding. A hearing matter before him except upon notice will be held in order to determine and opportunity for all parties to par whether Respondent has failed to ticipate.
comply with one or more applicable (c) No employee or agent of the Fed requirements of the Executive Order, eral Government engaged in the inves- and rules, regulations, and orders tigation and prosecution of a proceed thereunder. However, this shall not ing governed by these rules shall par- prevent the parties from entering into ticipate or advise in the rendering of a stipulation of the facts. the recommended or final decision, (b) If all facts are stipulated, the except as witness or counsel in the proceedings shall go to conclusion in proceeding.
accordance with $ $ 8.68-8.73.
$ 8.61 Evidence.
If the excluded evidence consists of Formal rules of evidence will not
evidence in written form or consists of
reference to documents, a copy of such apply to the proceeding. Irrelevant, immaterial, unreliable, and unduly
evidence shall be marked for identifirepetitious evidence will be excluded
cation and shall accompany the record from the record of a hearing. Hearsay
as the offer of proof. evidence shall not be inadmissible as
$ 8.67 Official transcript. such.
An official reporter will be designat$ 8.62 Official notice.
ed for all hearings. The official tranWhenever a party offers a docu
scripts taken of testimony and argument, or part thereof, in evidence, and ment, together with exhibits, briefs, or such document, or part thereof, has memoranda of law filed therewith, been shown by the offeror to be rea
shall be filed with the hearing examinsonably available to the public, such
er. Transcripts may be obtained by the document need not be produced or
parties and the public from the offimarked for identification, but may be
cial at rates not to exceed the applicaoffered for official notice as a public
ble rates fixed by the contract with document item by specifying the docu
the reporter. Upon notice to all parment or relevant part thereof. Official ties, the hearing examiner may aunotice may also be taken of other mat thorize such corrections to the tranters, at the discretion of the hearing
script as are necessary to accurately examiner.
reflect the testimony.
8 8.63 Testimony.
POSTHEARING PROCEDURES Testimony shall be given under oath
$ 8.68 Proposed findings of fact and conby witnesses at the hearing. All wit
clusions of law. nesses shall be subject to cross-examination, and at the discretion of the
Within 30 days after the close of the hearing examiner, may be cross-exam hearing each party may file, or the ined without regard to the scope of hearing examiner may request, prodirect examination as to any matter posed findings of fact and conclusions which is material to the proceeding. of law together with supporting briefs.
Such proposals and briefs shall be 8 8.64 Objections.
served on all parties and amici. Reply Objections to evidence shall be
briefs may be submitted within 15 timely, and the party making them
days after receipt of the initial proposshall briefly state the ground relied
als and briefs. Reply briefs should be upon.
filed and served on all parties and
amici. $ 8.65 Exceptions. Exceptions to rulings of the hearing
8.69 Record for decision. examiner are unnecessary. It is suffi. The hearing examiner will make his cient that a party, at the time the recommended findings, conclusions, ruling of the hearing examiner is and recommended decision upon the sought, makes known the action which basis of the record before him. The he desires the hearing examiner to transcript of testimony, exhibits, and take, or his objection to an action all papers, documents, and requests taken, and his ground therefor.
filed in the proceedings except the
correspondence section of the docket, $ 8.66 Offer of proof.
shall constitute the record. An offer of proof made in connection with an objection taken to any
8 8.70 Recommended determination. ruling of the hearing examiner exclud. The hearing examiner shall, in an ing proffered oral testimony shall con expeditious manner, rule on proposed sist of a statement of the substance of findings and conclusions submitted by the evidence which counsel contends the parties and shall make recomwould be adduced by such testimony. mended findings, conclusions, and decision. These rulings and recommenda PART 10—ADMINISTRATIVE CLAIMS tions shall be certified, together with UNDER FEDERAL TORT CLAIMS ACT the record for decision, to the Assistant Administrator for Enforcement
Subpart A-General and General Counsel for his decision. The rulings, recommended findings,
Sec. conclusions and decision of the hear 10.1 Scope of regulations. ing examiner shall be served on all
Subpart B-Procedures parties and amici curiae to the proceedings.
10.2 Administrative claim; when presented;
place of filing. $ 8.71 Exceptions to recommended deter 10.3 Administrative claims; who may file. mination.
10.4 Evidence to be submitted.
10.5 Investigation, examination, and deterWithin 30 days after receipt of the mination of claims. recommended determination, all par 10.6 Final denial of claim. ties to the proceeding may file with 10.7 Payment of approved claim. the Assistant Administrator for En- 10.8 Release. forcement and General Counsel, ex
10.10 Limitation on Environmental Protecceptions to the recommended findings,
tion Agency's authority. conclusions and decision of the hear
10.11 Relationship to other agency regulaing examiner, together with support
tions. ing briefs. Service of such exceptions
AUTHORITY: Sec. 1, 80 Stat. 306; 28 U.S.C. and briefs shall be made on all parties
2672; 28 CFR Part 14. and amici. Such briefs may be re
SOURCE: 38 FR 16868, June 27, 1973, unless sponded to within 15 days of their re
otherwise noted. ceipt. Responses shall be filed with the Assistant Administrator for Enforcement and General Counsel, and
Subpart A-General served on all parties and amici.
§ 10.1 Scope of regulations. $ 8.72 Record.
The regulations in this part shall After expiration of the time for
apply only to claims asserted under filing briefs and exceptions, the Assist
the Federal Tort Claims Act, as ant Administrator for Enforcement
amended, 28 U.S.C. sections 2671-2680,
accruing on or after January 18, 1967, and General Counsel shall make a de
for money damages against the United cision on the basis of the record before
States for damages to or loss of prophim. The record includes the record
erty or personal injury or death, before the hearing examiner, the rul
caused by the negligent or wrongful ings, the recommended findings, con
act or omission of any employee of the clusions and decision of the hearing
Environmental Protection Agency examiner, and the exceptions and
(EPA) while acting within the scope of briefs filed subsequent to the hearing his office of employment. examiner's decision. $ 8.73 Final decision.
Subpart B-Procedures The Assistant Administrator for En- 8 10.2 Administrative claim; when presentforcement and General Counsel may ed; place of filing. affirm, modify, or set aside in whole or
(a) For purpose of the regulations in in part the recommended findings,
this part, a claim shall be deemed to conclusions, and decision of the hear
have been presented when the Enviing examiner. The decision of the As
ronmental Protection Agency receives, sistant Administrator for Enforcement
at a place designated in paragraph (c) and General Counsel shall not be final of this section, an executed Standard without the approval of the Director. Form 95 or other written notification
of an incident accompanied by a claim for money damages in a sum certain
for damage to or loss of property, for assert such a claim under applicable personal injury, or for death, alleged State law. to have occurred by reason of the inci- (d) A claim for loss wholly compendent. A claim which should have been sated by an insurer with the rights of presented to EPA, but which was mis- a subrogee may be presented by the takenly addressed to or filed with an insurer. A claim for loss partially comother Federal agency, shall be deemed pensated by an insurer with the rights to be presented to EPA as of the date of a subrogee may be presented by the that the claim is received by EPA. A insurer or the insured individually as claim mistakenly addressed to or filed their respective interests appear, or with EPA shall forthwith be trans jointly. Whenever an insurer presents ferred to the appropriate Federal a claim asserting the rights of a subroagency, if ascertainable, or returned to
gee, he shall present with his claim apthe claimant.
propriate evidence that he has the (b) A claim presented in compliance rights of a subrogee. with paragraph (a) of this section may
(e) A claim presented by an agent or be amended by the claimant at any legal representative shall be presented time prior to final action by the Ad
in the name of the claimant, be signed ministrator, or his designee, or prior to
by the agent or legal representative, the exercise of the claimant's option
show the title or legal capacity of the to bring suit under 28 U.S.C. 2675(a).
person signing, and be accompanied by Amendments shall be submitted in
evidence of his authority to present a writing and signed by the claimant or
claim on behalf of the claimant as his duly authorized agent or legal rep
agent, executor, administrator, parent, resentative. Upon the timely filing of
guardian, or other representative. an amendment to a pending claim, EPA shall have 6 months in which to & 10.4 Evidence to be submitted. make a final disposition of the claim
(a) Death. In support of a claim as amended and the claimant's option under 28 U.S.C. 2675(a) shall not
based on death, the claimant may be accrue until 6 months after the filing
required to submit the following eviof an amendment.
dence or information: (c) Forms may be obtained and
(1) An authenticated death certificlaims may be filed with the office,
cate or other competent evidence local, regional, or headquarters, of the
showing cause of death, date of death, constituent organization having juris
and age of the decedent. diction over the employee involved in
(2) Decedent's employment or occuthe accident or incident, or with the pation at time of death, including his EPA Claims Officer, Waterside Mall monthly or yearly salary or earnings Building, 401 M Street SW., Washing (if any), and the duration of his last ton, D.C. 20460.
employment or occupation.
(3) Full names, addresses, birth 10.3 Administrative claims; who may dates, kinship, and marital status of file.
the decedent's survivors, including (a) A claim for injury to or loss of
identification of those survivors who property may be presented by the
were dependent for support upon the owner of the property interest which decedent at the time of his death. is the subject of the claim, his duly au
(4) Degree of support afforded by thorized agent, or his legal representa the decendent to each survivor detive.
pendent upon him for support at the (b) A claim for personal injury may
time of his death. be presented by the injured person,
(5) Decedent's general physical and his duly authorized agent, or his legal mental condition before death. representative.
(6) Itemized bills for medical and (c) A claim based on death may be burial expenses incurred by reason of presented by the executor or adminis- the incident causing death, or itemized trator of the decedent's estate or by receipts of payments for such exany other person legally entitled to penses.