closure of facts referred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing.

(f) Depositions. Upon such terms as the administrative law judge determines to be just, and for the convenience of the parties or of the Department, the administrative law judge may authorize or direct the testimony of any witness to be taken by deposition.

(g) Admissions as to facts and documents. Not later than 15 days before the scheduled date of the hearing except for good cause shown, or such earlier date as the administrative law judge 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 ten days after service thereof, or within such further time as the administrative law judge 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 in the proceeding, and shall not constitute an admission by him or her for any other purposes or be used against him or her in any other proceeding or action.

(h) Evidence. Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded.

(i) Cross-examination. A witness may be cross-examined on any matter material to the proceeding.

(j) 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.

(k) Objections. Objections to evidence shall be timely and briefly state the ground relied upon.

(1) Exceptions to rulings of administrative law judge unnecessary. Exceptions to rulings of the administrative law judge are unnecessary. It is sufficient that a party, at the time the ruling of the administrative law judge is sought, makes known the action which he or she desires the administrative law judge to take, or his or her objection to an action taken, and his or her grounds therefor.

(m) 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.

(n) 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 Governmentowned 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.

(0) Offer of proof. An offer of proof made in connection with an objection taken to any ruling of the administrative law judge rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in documentary or written

form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.

(p) Appeals from ruling of administrative law judge. Rulings of the administrative law judge may not be appealed to the Secretary before consideration of the entire proceeding, except with the consent of the administrative law judge and where he or she certifies on the record or in writing that the allowance of an interlocutory appeal is clearly necessary to prevent exceptional delay, expenses, or prejudice to any party, or substantial detriment to the public interest. If an appeal is allowed, any party may file a brief with the Secretary within such period as the administrative law judge directs. No oral argument will be heard unless the Secretary directs otherwise. At any time before submission of the proceeding for decision, the Secretary may direct the administrative law judge to certify any question or the entire record to him or her for decision. Where the entire record is certified, the administrative law judge shall recommend a decision.

[53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988]

§ 8.68 The record.

(a) Official transcript. The Department will designate the official reporter for all hearings. The official transcripts of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith shall be filed with the Department. Transcripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not to exceed the maximum rates fixed by the contract between the Department and the reporter. Upon notice to all parties, the administrative law judge may authorize corrections to the transcript which involve matters of substance.

(b) Record for decision. The transcript of testimony, exhibits, and all papers and requests filed in the proceedings, except the correspondence section of the docket, including rulings and any recommended or initial deci

sion shall constitute the exclusive record for decision.

§ 8.69 Posthearing procedures, decisions.

(a) Posthearing briefs: Proposed findings and conclusions. (1) The administrative law judge shall fix the time for filing posthearing briefs, which may contain proposed findings of fact and conclusions of law and, if permitted, reply briefs.

(2) Briefs should include a summary of the evidence relied upon, together with references to exhibit numbers and pages of the transcript, with citations of the authorities relied upon.

(b) Decisions following hearing. When the time for submission of posthearing briefs has expired, the administrative law judge shall certify the entire record, including recommended findings and proposed decision, to the Secretary or, if so authorized, shall make an initial decision. A copy of the recommended findings and proposed decision, or of the initial decision, shall be served upon all parties, and amici, if any.

(c) Exceptions to initial or recommended decisions. Within 30 days after the mailing of an initial or recommended decision, any party may file exceptions to the decision, stating reasons therefor, with the Secretary. Any other party may file a response thereto within 45 days after the mailing of the decision. Upon the filing of such exceptions, the Secretary shall review the decision and issue a decision thereon.

(d) Final decisions. (1) The Secretary shall make the final decision in all proceedings under this part after expiration of all applicable time limits provided in paragraph (a) or (c) of this section.

(2) Where the hearing is conducted by an administrative law judge who makes an initial decision, if no exceptions thereto are filed within the 30day period specificed in paragraph (c) of this section, such initial decision shall become the final decision of the Secretary upon his or her approval thereof and shall constitute "final agency action" within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedure Act),

subject to the provisions of paragraph (d)(3) of this section.

(3) The final decision of the Secretary is an "order" within the meaning of 5 U.S.C. 551(6) (formerly section 2(d) of the Administrative Procedure Act).

(4) All final decisions shall be promptly served on all parties, and amici, if any.

(e) Oral argument. (1) If any party desires to argue a case orally on exceptions or replies to exceptions to an initial or recommended decision, or upon review on initiative of the Secretary, he or she shall make such request in writing. The Secretary may grant or deny such requests in his or her discretion. If granted, notice of oral argument will be served on all parties. The Notice will set forth the order of presentation, the amount of time allotted, and the time and place for argument. The names of persons who will argue should be filed with the Civil Rights docket clerk not later than seven days before the date set for oral argument.

(2) The purpose of oral argument is to emphasize and clarify the written argument in the briefs. Reading at length from the brief or other texts is not favored. Participants should confine their arguments to points of controlling importance and to points upon which exceptions have been filed. Consolidation of appearances at oral argument by parties taking the same side will permit the parties' interests to be presented more effectively in the time allotted.

(3) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the Civil Rights docket clerk at least seven days before the argument.

(f) Service on amici curiae. All briefs, exceptions, memoranda, requests, and decisions referred to in 8.69 shall be served upon amici curiae at the same time and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under § 8.67(a) shall be served on amici.

§ 8.70 Judicial standards of practice.

(a) Conduct. Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in all proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party whether or not a lawyer shall observe the traditional responsibilities of lawyers as officers of the court and use his or her best effort to restrain his or her client from improprieties in connection with a proceeding.

(b) Improper conduct. With respect to any proceeding it is improper for any interested person to attempt to sway the judgment of the administrative law judge or Secretary by undertaking to bring pressure or influence to bear upon any officer having a responsibility for a decision in the proceeding, or his or her staff. It is improper that such interested persons or any members of the Department's staff or the administrative law judge give statements to communications media, by paid advertisement or otherwise, designed to influence the judgment of any officer having responsibility for a decision in the proceeding, or his or her staff. It is improper for any person to solicit communications to any such officer, or his/her staff, other than proper communications by parties or amici curiae.

(c) Ex parte communications. Only persons employed by or assigned to work with the administrative law judge or Secretary who perform no investigative or prosecuting function in connection with a proceeding shall communicate ex parte with the administrative law judge, the Secretary, or any employee or person involved in the decision process in such proceedings with respect to the merits of that or a factually related proceeding. The administrative law judge, the Secretary or any employee or person involved in the decisional process of a proceeding shall communicate ex parte with respect to the merits of that or a factually related proceeding only with persons who are employed by or assigned to work with them and

who perform no investigative or prosecuting function in connection with the proceeding.

(d) Expeditious treatment. Requests for expeditious treatment of matters pending before the administrative law judge are deemed communications on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications should be in the form of a motion.

(e) Matter not prohibited. A request for information which merely inquires about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Such requests should be directed to the Civil Rights docket clerk. Communications with respect to minor procedural matters or inquiries or emergency requests for extensions of time are not deemed ex parte communications prohibited by paragraph (c) of this section. Where feasible, however, such communications should be by letter with copies to all parties. Ex parte communications between a respondent and the administrative law judge or the Secretary with respect to securing such respondent's voluntary compliance under § 8.56 of this part are not prohibited.

(f) Filing of ex parte communications. A prohibited communication in writing received by the Secretary, or by the administrative law judge shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in such memorandum may file a comment for inclusion in the docket if he or she considers the memorandum to be incorrect.

[53 FR 20233, June 2, 1988; 53 FR 28115, July 26, 1988]

§ 8.71 Post-termination proceedings.

(a) An applicant or recipient adversely affected by the order terminating, discontinuing, or refusing Federal financial assistance in consequence of proceedings under this part may re

quest the Secretary for an order authorizing payment, or permitting resumption, of Federal financial assistance. Such requests shall be in writing and shall affirmatively show that, since entry of the order, it has brought its program or activity into compliance with the requirements of this part, and shall set forth specifically, and in detail, the steps which it has taken to achieve such compliance. If the Secretary denies such request, the applicant or recipient shall be given an expeditious hearing if it so requests in writing and specifies why it believes the Secretary to have been in error. The request for such a hearing shall be addressed to the Secretary and shall be made within 30 days after the applicant or recipient is informed that the Secretary has refused to authorize payment or permit resumption of Federal financial assistance.

(b) In the event that a hearing shall be requested under paragraph (a) of this section, the hearing procedures established by this subpart shall be applicable to the proceedings, except as otherwise provided in this section.

APPENDIX A TO PART 8-FEDERAL FI

NANCIAL ASSISTANCE FROM THE DE-
PARTMENT OF HOUSING AND URBAN
DEVELOPMENT TO WHICH THIS PART
APPLIES

(The number in parenthesis following each program description is the program number found in the Catalogue of Federal Financial Assistance.)

Community Planning and Development Programs

Community development block grant entitlement program. Title I of the Housing and Community Development Act of 1974, as amended; 42 U.S.C. 5301, (14.218)

Community development block grants/ small cities program. Title I of the Housing and Community Development Act of 1974, 42 U.S.C. 5301. (14.219)

Community development block grants/ state program. Title I of the Housing and Community Development Act of 1974, as amended 42 U.S.C. 5301. (14.228)

Community development block grants/ Secretary' discretionary fund. Section 107 of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. 5307. (14.225; 14.227)

Section 108 loan guarantees. Section 108 of the Housing and Community Development Act of 1974, as amended. 42 U.S.C. $308.

Rental rehabilitation grants. Section 17, United States Housing Act of 1937, as amended, 42 U.S.C. 1437(o). (14.230)

Rehabilitation loan program. Section 312, Housing Act of 1964, 42 U.S.C. 1452b. (14.220)

Urban Homesteading. Section 810 of the Housing and Community Development Act of 1974, 12 U.S.C. 1706e. (14.222)

Supportive Housing Demonstration. Pub. L. 100-77, 101 Stat. 482.

Emergency Shelter Grants. Pub. L. 10077, 101 Stat. 482.

Supplemental Assistance Grants. Pub. L. 100-77, 101 Stat. 482.

Urban Development Action Grants. Section 119 of the Housing and Community Development Act of 1977, 42 U.S.C. 5318. (14.221)

Grants for new community development programs, (excluding assistance in the form of guarantees). Title VII, Housing and Urban Development Act of 1970, 42 U.S.C. 4511.

Housing Programs

Lower-income housing assistance payments program. (Section 8.) Section 8, United States Housing Act of 1937, as amended, 42 U.S.C. 1437f. (14.156)

Housing Voucher program. Section 8(0), United States Housing Act of 1937, as amended, 42 U.S.C. 1437f(o). (14.156)

Housing development grants. Section 17, United States Housing Act of 1937, as amended, 42 U.S.C. 1437(o). (14.174)

Lower-income public housing (including operating subsidies and modernization) and Indian housing. United States Housing Act of 1937, 42 U.S.C. 1437. (14.850)

Public housing-Comprehensive Improvement Assistance Program (Public Housing Modernization). United States Housing Act of 1937, as amended, 42 U.S.C. 14371. (14.852)

Operating assistance for troubled multifamily housing project (Troubled Projects Program (Flexible Subsidy)). Housing and Community Development Amendment of 1978, 12 U.S.C. 17152-1. (14.164)

Technical assistance to contractors or subcontractors. Section 911(b), Housing and Urban Development Act of 1970, 15 U.S.C. 694(a). Note.

Nonprofit sponsor assistance program. Section 106(b) of the Housing and Urban Development Act of 1968.

Homeownership for lower income families, with assistance. Section 235(1), National Housing Act, 12 U.S.C. 17152.

Homes released from rehabilitation project mortgage, with assistance, section

235(j) National Housing Act, 12 U.S.C. 1715z.

Rental and cooperative housing for lower income families. Section 236, National Housing Act, 12 U.S.C. 17152-1.

Direct loans for housing for the elderly or handicapped. Section 202, Housing Act of 1959, 12 U.S.C. 1701g. (14.157)

Assistance for Housing in Alaska, section 1004 Demonstration Cities and Metropolitan Development Act of 1966, 42 U.S.C. 3371.

Technical assistance and interest subsidies to State housing finance and development agencies (Section 802). Section 802, Housing and Community Development Act of 1974, 42 U.S.C. 1440.

Emergency mortgage relief loan program. Section 106 of the Emergency Homeowner's Relief Act, 12 U.S.C. 705.

Rent supplements. Section 101, Housing and Urban Development Act of 1965, 12 U.S.C. 1701s. (14.149)

Counseling for homebuyers, homeowners and tenants. Section 106, Housing and Urban Development Act of 1968, as amended by section 903(a), Housing and Urban Development Act of 1970, 12 U.S.C. 1701x. (14.169)

Lower-income housing-homeownership opportunities for lower-income families (Turnkey III housing administered by PHAS and IHAs and Mutual Help housing administered by IHAs). United States Housing Act of 1937, 42 U.S.C. 1437.

Community services for tenants. Section 3, U.S. Housing Act of 1937, 42 U.S.C. 14378. Congregate Housing Services Program, title IV. Housing and Community Development Act of 1978, 42 U.S.C. 8001-8009. (14.170)

Surplus land for low and moderate income housing. Section 414 of the Housing and Urban Development Act of 1969, 40 U.S.C. 484b.

GNMA

Management and Liquidating. Sections 305 and 313, National Housing Act, 12 U.S.C. 1720, 1723e.

Policy Development and Research Research and technology, (excluding contracts for procurement). Title V, Housing and Urban Development Act of 1970, 42 U.S.C. 17012-1 [including the following current programs: Modular Integrated Utility System (MIUS), Tenant Management Program, Urban Observatory, and Urban Reinvestment Task Force]. (14.506)

Solar heating and cooling demonstration program. Solar Heating and Cooling Act of 1974, 42 U.S.C. 5501. (14.550)