Page images

answer shall be filed within 15 days af- must be filed within 15 days after seryter service of the more definite statement ice of the denial. of allegations.

(2) If the motion is granted, in whole (b) If a notice of proceedings is or in part, the more definite statement amended, the respondent shall have 15 of allegations shall be filed after service days after service of the amended notice of the order granting the motion and the of proceedings within which to file an request for hearing accompanied by the answer thereto.

answer shall be filed within 15 days after § 1720.145 Content of answer.

service of the more definite statement of

allegations. An answer to a suspension notice or (b) When a hearing is requested pura notice of proceedings shall contain: suant to paragraph (a) of this section,

(a) A brief statement of the facts con- such hearing shall be held within 20 days stituting each defense; and

of receipt of the request. The time and (b) Specific admission, denial or ex- place for hearing shall be fixed with due planation of each fact alleged in the no- regard for the public interest and the tice, or if the respondent is without convenience and necessity of the parties knowledge thereof a statement to that or their representatives. effect. Allegations not answered in this (c) A request for hearing filed pursumatter shall be deemed to have been ant to paragraph (a) of this section shall admitted.

not interrupt or annul the effectiveness § 1720.150 Settlements.

of the suspension notice, and suspension

of the effective date of the statement or Parties may propose in writing, at any

amendment shall continue until vacated time during the course of a proceeding,

by order of the Secretary. Except in cases offers of settlement which shall be sub

in which the developer shall waive or mitted to and considered by the Secre

withdraw his request for such hearing, tary or his designee. If determined to

or shall fail to pursue the same by approbe appropriate, the party making the

priate appearance at a hearing duly offer may be given an opportunity to scheduled, noticed and convened, the make an oral presentation in support

suspended filing shall be reinstated in of such offer. If an offer of settlement

the event of failure of the Secretary or is rejected, the party making the offer

his designee to schedule, give notice of shall be so notified and the offer shall

or hold a duly-requested hearing within be deemed withdrawn and shall not con

the time specified in paragraph (b) of stitute a part of the record in the pro- this section, or in the event of a finding ceeding. Final acceptance by the Secre

that the Secretary has failed to support tary or his designee of any offer of settle

at such hearing the propriety of the susment will automatically terminate any pension with respect to the material proceeding related thereto.

issues of law and fact raised by the $ 1720.155 Hearings suspension

answer. Such reinstatement shall be ef

notice pursuant to § 1710.45(a) of this

fective on the date on which the filing chapter.

would have become effective had no no

tice of suspension been issued with re(a) A developer, upon receipt of a

spect to it. suspension notice issued pursuant to $ 1710.45(a) of this chapter, may obtain

8 1720.160 Hearings—notice of proa hearing by filing a written request in ceedings pursuant to 8 1710.45 accordance with the instructions regard

(b) (1) of this chapter. ing such request contained in the sus- (a) A developer, upon receipt of a pension notice. Such request must be notice of proceedings issued pursuant to filed within 15 days of receipt of the sus- $ 1710.45(b) (1) of this chapter, may obpension notice and must be accompanied tain a hearing by filing a written request by an answer and 3 copies thereof in accordance with the instructions resigned by the respondent or his attorney garding such request contained in the conforming to the requirements of notice of proceedings. Such a request $ 1720.145. Filing of a motion for a more must be filed within 15 days of receipt definite statement pursuant to $ 1720.135 of the notice of proceedings or in the case shall alter the period of time to request of a request for a more definite statea hearing as follows:

ment within 15 days after receipt of (1) If the motion is denied, the request either the more definite statement or the for hearing accompanied by the answer denial thereof. The request must be ac

companied by an answer conforming to (b) The Secretary or his designee shall the requirements of 1720.145.

determine the propriety of such inter(b) When a hearing is requested pur- vention and the extent to which such suant to paragraph (a) of this section, intervener may participate, basing such a date for such hearing shall be sched- determination upon applicable law, the uled within 20 days of receipt of the re- directness and substantiality of the petiquest. The time and place for hearing tioner's interest in the proceeding and shall be fixed with due regard for the the effect upon the proceeding of allowpublic interest and the convenience and ing such participation. necessity of the parties or their repre

§ 1720.175 Consolidation. sentatives.

(c) Failure to answer within the time When more than one proceeding inallowed by § 1720.140 or failure of a de- volves a common question of law or fact, veloper to appear at a hearing duly

the Secretary or his designee may order scheduled shall result in an appropriate a joint hearing of any or all of the matorder under $ 1710.45(b) (1) of this chap

ters in issue in the proceedings and may ter suspending the statement of record. make such orders concerning the proSuch order shall be effective as of the ceedings as may tend to avoid unnecesdate of issuance.

sary costs or delay. & 1720.165 Hearings—suspension order 8 1720.190 Administrative law judge,

issued pursuant to § 1710.45(b)(2) powers and duties. of this chapter.

(a) Hearings in adjudicative proceed(a) A developer, upon receipt of a ings shall be presided over by a duly suspension order issued pursuant to sub- qualified administrative law judge who paragraph (2) of $ 1710.45(b) of this shall be designated by the Secretary in chapter, may obtain a hearing by filing a notice to the parties in the proceeding. a written request in accordance with the (b) Administrative law judges shall instructions regarding such request con- have the duty to conduct fair and impartained in the suspension order. Such re- tial hearings, to take all necessary action quest must be filed within 15 days of to avoid delay in the disposition of proreceipt of the suspension order and must ceedings and to maintain order. They be accompanied by an answer conform- shall have all powers necessary to those ing to the requirements of § 1720.145. ends including all powers granted under

(b) When a hearing is requested pur- 5 U.S.C. 556(c), and also including but suant to paragraph (a) of this section, not limited to the following: a date for such hearing shall be sched- (1) To administer oaths and afirmauled within 20 days of receipt of the re- tions. quest. The time and place for hearing (2) To issue subpoenas and orders reshall be fixed with due regard for the quiring access. public interest and the convenience and (3) To take or to cause depositions to necessity of the parties or their repre- be taken. sentatives.

(4) To rule upon offers of proof and

receive evidence. $ 1720.170 Intervention by interested

(5) To regulate the course of the persons.

hearings and the conduct of the parties (a) Upon timely application, the Sec- and their counsel. retary or his designee upon petition in (6) To hold conferences for simplifi. writing and for good cause shown, and cation and clarification of the issues or if deemed to be in the public interest, any other purpose. may permit any person to participate by (7) To consider and rule upon, as jusintervention in the proceeding. The peti- tice may require, all procedural and other tion shall contain (1) the petitioner's re- motions appropriate in an adjudicative lationship to and interest in the matters proceeding, including motions to open contained in the proceeding; (2) a con- defaults. cise statement of his position with re- (8) To make and file initial decisions. spect to each specific issue upon which (9) To certify questions to an appeals he proposes to intervene, and of the facts officer on the Interstate Land Sales which he proposes to adduce in support Board for his determination. of each such position; and (3) an assent (10) To take any action authorized by to exercise of jurisdiction by the De- the rules in this part or other appropripartment with respect to the petitioner. ate action.


§ 1720.195 Prehearing conferences. spects as if they had been raised in the (a) In any proceeding in which it ap

pleadings; and such amendments of the pears that such procedure will expedite

pleadings as may be necessary to make

them conform to the evidence and to the proceeding, the administrative law

raise such issues shall be allowed at any judge may direct or allow the parties or

time. their representatives to appear before him for a conference to consider: (1)

(c) Supplemental pleadings.—The ad

ministrative law judge may, upon reaSimplification and clarification of the

sonable notice and such terms as are just, issues; (2) necessity or desirability of amendments to the pleadings; (3) stipu

permit service of a supplemental plead

ing setting forth transactions or events lations and admissions of fact and the

which have occurred since the date of contents and authenticity of documents; (4) expedition in the discovery and pres

the pleading sought to be supplemented entation of evidence; (5) matters of

and which are relevant to any of the

issues involved. which official or judicial notice will be taken; and (6) such other matters as 8 1720.210 Policy. may aid in the orderly and expeditious

(a) All hearings in adjudicative prodisposition of the proceeding, including

ceedings shall be public. disclosure of the names of witnesses and

(b) Hearings shall proceed with all of documents or other exhibits which

reasonable speed; and, insofar as pracwill be introduced in evidence in the

ticable, shall be held at one place and course of the proceeding. Prior to the

shall continue without recess or suspenconference, the administrative law judge

sion until concluded. The administrative may direct or allow the parties or their

law judge shall have the authority to representatives to file memorandums

order brief intervals of the sort normally specifying the issues of law and fact to

involved in judicial proceedings and, in be considered.

unusual and exceptional circumstances (b) If the circumstances are such that

for good cause stated on the record, he a conference is impracticable, the ad

shall have the authority to order hearministrative law judge may request the

ings at more than one place and to order parties to correspond with him for the

brief intervals to permit discovery necespurpose of accomplishing any of the ob

sarily deferred during the prehearing jectives set forth in this section.

procedures. f 1720.200 Reporting-prehearing con

§ 1720.215 Ex parte communications. ferences.

(a) No person shall communicate with Prehearing conferences shall


any administrative law judge or any apstenographically mechanically


peals officer on the Interstate Land Sales ported; and the administrative law judge

Board either directly or indirectly conshall prepare and file for the record a

cerning any pending proceeding unless written summary of the action taken at

prior to or simultaneously with such comthe conference, which shall incorporate

munication its contents are disclosed in any written agreements or stipulations

detail to all persons interested in the made by the parties at the conference or

proceeding; nor shall any administraas a result of the conference.

tive law judge or appeals officer request 1720.205 Amendments and supple- or consider any such unauthorized ex mental pleadings.

parte communication. This prohibition (a) Amendments. The administra

shall not apply to a simple request for tive law judge may, upon such conditions

information respecting the status of the as are necessary to avoid prejudicing the

proceeding, nor to any ex parte compublic interest and the rights of the par

munication expressly authorized by these ties, allow appropriate amendments to

rules. pleadings whenever determination of a

(b) Any administrative law judge or controversy on the merits will be facili- appeals officer, who receives an ex parte tated thereby.

communication which he knows or has (b) Variances of proof.-When issues reason to believe is unauthorized, shall not raised by the pleadings but reason- promptly place the communication, or ably within the scope of the suspension its substance, in the public file and shall notice or notice of proceedings are tried inform all persons interested in the proby express or implied consent of the ceeding of its existence and general conparties, they shall be treated in all re- tents. Facts or arguments so communi


cated shall not be taken into account a copy of each motion shall be served on in deciding any matter in issue unless the other party or parties. Such motions such facts or arguments shall be brought shall be signed, addressed to and filed properly before the administrative law with the administrative law judge and judge.

shall be ruled upon by him. The provi(c) Opportunity to answer allegations sions of this section need not apply to or contentions contained in an unau- motio made during the course of a thorized ex parte communication may hearing. be afforded any interested person upon

$ 1720.235 Answers to motions. his motion for leave to do so, wherever such leave will operate to assure a fair

Within 7 days after service of any hearing or decision.

written motion, an opposing party shall

answer or shall be deemed to consent to 8 1720.220 Disqualification of adminis

the granting of the relief asked for in trative law judge.

the motion. The moving party shall have (a) When an administrative law judge no right to reply except as permitted by deems himself disqualified to preside in a the administrative law judge or the desparticular proceeding, he shall withdraw ignated officer on the Interstate Land therefrom by notice on the record and Sales Board. shall notify the Secretary of such withdrawal.

$ 1720.240 Motions for extension. (b) Whenever any party believes that As a matter of discretion, the adminthe administrative law judge should be istrative law judge or the designated ofdisqualified to preside, or to continue to ficer on the Interstate Land Sales Board preside, in a particular proceeding, such may waive the requirements of $ 1720.235 party may file with the administrative as to motions for extensions of time, and law judge a motion that the administra- may rule upon such motions ex parte. tive law judge disqualify and remove Extentions of time or continuances in himself. Such motion shall be supported any proceeding may be ordered for suffby affidavits setting forth the alleged cient cause in the discretion of the adgrounds for disqualification. If the ad- ministrative law judge on his own moministrative law judge does not dis- tion, or on the motion of either party; qualify himself, he shall proceed with the but the policy of the Secretary under hearing and the question of fair hearing

81720.210 shall be observed and enforced. and due process may be raised on appeal § 1720.245 Rulings on motions for disto the appeals officer on the Interstate missal. Land Sales Board who shall determine

(a) When a motion is granted with the the matter as a part of the record and

result that the proceeding before the addecision.

ministrative law judge is terminated, the 8 1720.225 Failure to comply with ad

administrative law judge shall file an ministrative law judge's directions.

initial decision in accordance with the Any party who refuses or fails to com

provisions of $ 1720.345. If such a motion ply with a lawfully issued order or di

is not granted as to all allegations and rection of an administrative law judge

as to all respondents, the administrative may be considered to be in contempt of

law judge shall enter his ruling on the the Secretary. The circumstances of any

record and take it into account in his

initial decision. When a motion to dissuch neglect, refusal or failure, together with a recommendation for appropriate

miss, based upon alleged failure to estabaction, shall be promptly certified by the

lish a prima facie case, is made at the administrative law judge to the Secre

close of the evidence offered in support

of the notice of proceedings or suspentary or his designee who may make such orders in regard thereto as the circum

sion notice, the administrative law judge stances may warrant.

may defer ruling thereon until the close

of the case for the reception of evidence. 8 1720.230 Motions—filing require

(b) A motion to dismiss may be made ments.

by any party within 5 days after the During the time a proceeding is be- close of the case for the reception of fore an administrative law judge, all mo- evidence. The administrative law judge tions therein shall be in writing; and, shall enter his ruling on the record and except as otherwise provided in this part, take it into account in his initial decision.

8 1720.250 Interlocutory review of ad

ministrative law judge's rulings. The designated appeals officer on the Interstate Land Sales Board will not review a ruling of an administrative law judge prior to his consideration of the entire proceeding in the absence of extraordinary circumstances. Except as provided in 8 1720.190 an administrative law judge shall not certify a ruling for interlocutory review to an appeals officer unless a party so requests and the administrative law judge finds, either on the record or in writing, that in his opinion (a) a subsequent reversal of his ruling would cause unusual delay or expense, taking into consideration the probability of such reversal, or (b) substantial rights are at stake and the final decision might be materially affected. The certification by the administrative law judge shall be in writing and shall specify the material relevant to the ruling involved. The appeals oficer may decline to consider the ruling certified if he determines that interlocutory review is not warranted or appropriate under the circumstances. If the administrative law judge does not certify a matter, a party who had requested certification may apply to the appeals officer for review. An application for review shall be in writing and shall briefly state the grounds relied on and shall be filed within 2 days after notice of the ruling complained of. Review will not be granted unless the appeals officer concludes that the administrative law judge erred in failing to certify the matter. Unless otherwise ordered by the administrative law judge, the hearing shall continue whether or not such certification or application is made. Failure to request certification or to make such application will not waive the right to seek review of the ruling of the administrative law judge after the close of the hearing. § 1720.255 Presentation and admission

of evidence. (a) All witnesses at a hearing for the purpose of taking evidence shall testify under oath or affirmation which shall be administered by the administrative law judge. Every party shall have the right to present such oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The administrative law judge shall receive relevant

and material evidence, rule upon offers of proof and exclude all irrelevant, immaterial or unduly repetitious evidence.

(b) Evidence shall not be excluded merely by application of technical rules governing its admissibility, competency, weight or foundation in the record; but evidence lacking any significant probative value, or substantially tending merely to confuse or extend the record, shall be excluded.

(c) When offered evidence is excluded, the party offering the same shall be permitted to state on the record an offer of proof with respect thereto and rejected exhibits, adequately marked, shall on request of the party offering the same be retained in the record for purposes of review. Evidence may be received subject to deferred ruling on objections to its admissibility.

(d) Objections to evidence shall be interposed timely and shall specify the particular ground of objection without argument except as argument may be expressly required by the administrative law judge. Formal exception to an adverse ruling is unnecessary. 8 1720.260 Production


witnesses' statements. After a witness called by the attorney for the Office of Interstate Land Sales Registration has given direct testimony in a hearing, any other party may request and obtain the production of any statement, or part thereof, of such witness pertaining to his direct testimony in the possession of the Office of Interstate Land Sales Registration, subject, however, to the limitations applicable to the production of witnesses' statements under the Jencks Act, 18 U.S.C. 3500. § 1720.265 Depositions and discovery.

(a) At any time during the course of a proceeding, the administrative law judge, in his discretion, may order the taking of a deposition and the production of documents by the deponent. Such order may be entered upon a showing that the deposition is necessary for the purpose of discovery and that such discovery could not be accomplished by voluntary methods. Such order may also be entered in extraordinary circumstances to preserve relevant evidence upon a showing that there is substantial reason to believe that such evidence could not be presented through a witness at the hearing. Insofar as consistent with con

« PreviousContinue »