« ForrigeFortsett »
closure of facts referred to in such as- (1) Unsponsored written material sertions. Notwithstanding any objec- Letters expressing views or urging tion, however, affidavits may be con- action and other unsponsored written sidered in the case of any respondent material regarding matters in issue in who waives a hearing.
a hearing will be placed in the corre(f) Depositions. Upon such terms as spondence section of the docket of the the administrative law judge deter- proceeding. These data are not mines to be just, and for the conven- deemed part of the evidence or record ience of the parties or of the Depart
in the hearing. ment, the administrative law judge (k) Objections. Objections to evimay authorize or direct the testimony
dence shall be timely and briefly state of any witness to be taken by deposi
the ground relied upon. tion.
(1) Exceptions to rulings of adminis(g) Admissions as to facts and docu
trative law judge unnecessary. Excepments. Not later than 15 days before
tions to rulings of the administrative the scheduled date of the hearing
law judge are unnecessary. It is suffi. except for good cause shown, or such
cient that a party, at the time the earlier date as the administrative law
ruling of the administrative law judge judge may order, any party may serve
is sought, makes known the action
which he or she desires the adminisupon an opposing party a written re
trative law judge to take, or his or her quest for the admission of the genuineness and authenticity of any rele
objection to an action taken, and his vant documents described in and ex
or her grounds therefor.
(m) Official notice. Where official hibited with the request, or for the ad
notice is taken or is to be taken of a mission of the truth of any relevant matters of fact stated in the request.
material fact not appearing in the evi
dence of record, any party, on timely Each of the matters of which an ad
request, shall be afforded an opportumission is requested shall be deemed
nity to show the contrary. admitted unless within a period desig
(n) Public document items. Whennated in the request (not less than ten
ever there is offered (in whole or in days after service thereof, or within
part) a public document, such as an ofsuch further time as the administra
ficial report, decision, opinion, or pubtive law judge may allow upon motion
lished scientific or economic statistical and notice) the party to whom the re
data issued by any of the executive dequest is directed serves upon the re
partments (or their subdivisions), leg. questing party a sworn statement
islative agencies or committees, or adeither denying specifically the matters
ministrative agencies of the Federal of which an admission is requested or
Government (including Governmentsetting forth in detail the reasons why
owned corporations), or a similar docuhe cannot truthfully either admit or
ment issued by a State or its agencies, deny such matters. Copies of requests
and such document (or part thereof) for admission and answers thereto
has been shown by the offeror to be shall be served on all parties. Any ad
reasonably available to the public, mission made by a party to such re
such document need not be produced quest is only for the purposes of the or marked for identification, but may pending proceeding, or any proceeding be offered for official notice, as a or action instituted for the enforce
public document item by specifying ment of any order entered in the pro
the document or relevant part thereof. ceeding, and shall not constitute an
(0) Offer of proof. An offer of proof admission by him or her for any other
made in connection with an objection purposes or be used against him or her
taken to any ruling of the administrain any other proceeding or action.
tive law judge rejecting or excluding (h) Evidence. Irrelevant, immaterial, proffered oral testimony shall consist unreliable, and unduly repetitious evi- of a statement of the substance of the dence will be excluded.
evidence which counsel contends (i) Cross-examination. A witness would be adduced by such testimony; may be cross-examined on any matter and, if the excluded evidence consists material to the proceeding.
of evidence in documentary or written form or of reference to documents or sion shall constitute the exclusive records, a copy of such evidence shall record for decision. be marked for identification and shall accompany the record as the offer of 8 8.69 Posthearing procedures, decisions. proof.
(a) Posthearing briefs: Proposed (p) Appeals from ruling of adminis- findings and conclusions. (1) The adtrative law judge. Rulings of the ad- ministrative law judge shall fix the ministrative law judge may not be ap- time for filing posthearing briefs, pealed to the Secretary before consid- which may contain proposed findings eration of the entire proceeding, of fact and conclusions of law and, if except with the consent of the admin- permitted, reply briefs. istrative law judge and where he or (2) Briefs should include a summary she certifies on the record or in writ- of the evidence relied upon, together ing that the allowance of an interlocu
with references to exhibit numbers tory appeal is clearly necessary to pre
and pages of the transcript, with citavent exceptional delay, expenses, or tions of the authorities relied upon. prejudice to any party, or substantial
(b) Decisions following hearing. detriment to the public interest. If an
When the time for submission of appeal is allowed, any party may file a
posthearing briefs has expired, the adbrief with the Secretary within such
ministrative law judge shall certify the period as the administrative law judge directs. No oral argument will be
entire record, including recommended
findings and proposed decision, to the heard unless the Secretary directs oth
Secretary or, if so authorized, shall erwise. At any time before submission
make an initial decision. A copy of the of the proceeding for decision, the Sec
recommended findings and proposed retary may direct the administrative
decision, or of the initial decision, law judge to certify any question or
shall be served upon all parties, and the entire record to him or her for de
amici, if any. cision. Where the entire record is certified, the administrative law judge
(c) Exceptions to initial or recom
mended decisions. Within 30 days shall recommend a decision.
after the mailing of an initial or rec(53 FR 20233, June 2, 1988; 53 FR 28115, ommended decision, any party may July 26, 1988)
file exceptions to the decision, stating
reasons therefor, with the Secretary. $ 8.68 The record.
Any other party may file a response (a) Official transcript. The Depart- thereto within 45 days after the mail. ment will designate the official report- ing of the decision. Upon the filing of er for all hearings. The official tran- such exceptions, the Secretary shall scripts of testimony taken, together review the decision and issue a deci. with any exhibits, briefs, or memoran- sion thereon. da of law filed therewith shall be filed (d) Final decisions. (1) The Secrewith the Department. Transcripts of tary shall make the final decision in testimony in hearings may be obtained all proceedings under this part after from the official reporter by the par- expiration of all applicable time limits ties and the public at rates not to provided in paragraph (a) or (c) of this exceed the maximum rates fixed by section. the contract between the Department (2) Where the hearing is conducted and the reporter. Upon notice to all by an administrative law judge who parties, the administrative law judge makes an initial decision, if no excepmay authorize corrections to the tran
tions thereto are filed within the 30script which involve matters of sub- day period specificed in paragraph (c) stance.
of this section, such initial decision (b) Record for decision. The tran. shall become the final decision of the script of testimony, exhibits, and all Secretary upon his or her approval papers and requests filed in the pro- thereof and shall constitute "final ceedings, except the correspondence agency action" within the meaning of section of the docket, including rulings 5 U.S.C. 704 (formerly section 10(c) of and any recommended or initial deci. the Administrative Procedure Act), subject to the provisions of paragraph 88.70 Judicial standards of practice. (dX3) of this section.
(a) Conduct. Parties and their repre(3) The final decision of the Secre
sentatives are expected to conduct tary is an "order" within the meaning
themselves with honor and dignity of 5 U.S.C. 551(6) (formerly section and observe judicial standards of prac2(d) of the Administrative Procedure tice and ethics in all proceedings. Act).
They should not indulge in offensive (4) All final decisions shall be
personalities, unseemly wrangling, or promptly served on all parties, and intemperate accusations or characteramici, if any.
izations. A representative of any party (e) Oral argument. (1) If any party whether or not a lawyer shall observe desires to argue a case orally on excep- the traditional responsibilities of lawtions or replies to exceptions to an ini. yers as officers of the court and use tial or recommended decision, or upon his or her best effort to restrain his or review on initiative of the Secretary, her client from improprieties in conhe or she shall make such request in nection with a proceeding. writing. The Secretary may grant or (b) Improper conduct. With respect deny such requests in his or her dis- to any proceeding it is improper for cretion. If granted, notice of oral argu- any interested person to attempt to ment will be served on all parties. The sway the judgment of the administraNotice will set forth the order of pres- tive law judge or Secretary by underentation, the amount of time allotted, taking to bring pressure or influence and the time and place for argument. to bear upon any officer having a reThe names of persons who will argue
sponsibility for a decision in the proshould be filed with the Civil Rights
ceeding, or his or her staff. It is imdocket clerk not later than seven days
proper that such interested persons or before the date set for oral argument.
any members of the Department's (2) The purpose of oral argument is
staff or the administrative law judge to emphasize and clarify the written
give statements to communications argument in the briefs. Reading at
media, by paid advertisement or otherlength from the brief or other texts is
wise, designed to influence the judg. not favored. Participants should con
ment of any officer having responsibil. fine their arguments to points of con
ity for a decision in the proceeding, or
his or her staff. It is improper for any trolling importance and to points upon
person to solicit communications to which exceptions have been filed. Con
any such officer, or his/her staff, solidation of appearances at oral argument by parties taking the same side
other than proper communications by
parties or amici curiae. will permit the parties' interests to be presented more effectively in the time
(c) Ex parte communications. Only allotted.
persons employed by or assigned to
work with the administrative law (3) Pamphlets, charts, and other
judge or Secretary who perform no inwritten material may be presented at
vestigative or prosecuting function in oral argument only if such material is
connection with a proceeding shall limited to facts already in the record
communicate ex parte with the adminand is served on all parties and filed
istrative law judge, the Secretary, or with the Civil Rights docket clerk at
any employee or person involved in least seven days before the argument.
the decision process in such proceed(f) Service on amici curiae. All
ings with respect to the merits of that briefs, exceptions, memoranda, re- or a factually related proceeding. The quests, and decisions referred to in
administrative law judge, the Secre18.69 shall be served upon amici tary or any employee or person incuriae at the same time and in the volved in the decisional process of a same manner required for service on
proceeding shall communicate
ex parties. Any written statements of po- parte with respect to the merits of sition and trial briefs required of par. that or a factually related proceeding ties under $8.67(a) shall be served on only with persons who are employed amici.
by or assigned to work with them and who perform no investigative or pros- quest the Secretary for an order auecuting function in connection with thorizing payment, or permitting rethe proceeding.
sumption, of Federal financial assist(d) Expeditious treatment Requests ance. Such requests shall be in writing for expeditious treatment of matters and shall affirmatively show that, pending before the administrative law since entry of the order, it has judge are deemed communications on brought its program or activity into the merits, and are improper except compliance with the requirements of when forwarded from parties to a pro- this part, and shall set forth specifical. ceeding and served upon all other par- ly, and in detail, the steps which it has ties thereto. Such communications taken to achieve such compliance. If should be in the form of a motion.
the Secretary denies such request, the (e) Matter not prohibited. A request applicant or recipient shall be given an for information which merely inquires expeditious hearing if it so requests in about the status of a proceeding with writing and specifies why it believes out discussing issues or expressing
the Secretary to have been in error. points of view is not deemed an ex
The request for such a hearing shall parte communication. Such requests
be addressed to the Secretary and should be directed to the Civil Rights
shall be made within 30 days after the docket clerk. Communications with respect to minor procedural matters or
applicant or recipient is informed that
the Secretary has refused to authorize inquiries or emergency requests for extensions of time are not deemed ex
payment or permit resumption of Fed
eral financial assistance. parte communications prohibited by
(b) In the event that a hearing shall paragraph (c) of this section. Where feasible, however, such communica
be requested under paragraph (a) of tions should be by letter with copies to
this section, the hearing procedures all parties. Ex parte communications
established by this subpart shall be between a respondent and the admin applicable to the proceedings, except istrative law judge or the Secretary as otherwise provided in this section. with respect to securing such respondent's voluntary compliance under $ 8.56 of this part are not prohibited.
APPENDIX A TO PART 8-FEDERAL FI(f) Filing of ex parte communica
NANCIAL ASSISTANCE FROM THE DEtions. A prohibited communication in
PARTMENT OF HOUSING AND URBAN writing received by the Secretary, or
DEVELOPMENT TO WHICH THIS PART by the administrative law judge shall
APPLIES be made public by placing it in the cor
(The number in parenthesis following each respondence file of the docket in the program description is the program number case and will not be considered as part found in the Catalogue of Federal Financial of the record for decision. If the pro- Assistance.) hibited communication is received orally, a memorandum setting forth
Community Planning and Development
Programs its substance shall be made and filed in the correspondence section of the Community development block grant entidocket in the case. A person referred tlement program. Title I of the Housing and to in such memorandum may file a
Community Development Act of 1974, as comment for inclusion in the docket if
amended; 42 U.S.C. 5301. (14.218) he or she considers the memorandum
Community development block grants/
small cities program. Title I of the Housing to be incorrect.
and Community Development Act of 1974, (53 FR 20233, June 2, 1988; 53 FR 28115, 42 U.S.C. 5301. (14.219) July 26, 1988)
Community development block grants/
state program. Title I of the Housing and 88.71 Post-termination proceedings. Community Development Act of 1974, as
amended 42 U.S.C. 5301. (14.228) (a) An applicant or recipient ad
Community development block grants/ versely affected by the order terminat
Secretary' discretionary fund. Section 107 of ing, discontinuing, or refusing Federal the Housing and Community Development financial assistance in consequence of Act of 1974, as amended, 42 U.S.C. 5307. proceedings under this part may re- (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. 5308.
Rental rehabilitation grants. Section 17, United States Housing Act of 1937, as amended, 42 U.S.C. 1437(0). (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 pay. ments 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(0). (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(i), National Housing Act, 12 U.S.C. 17152.
Bomes 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. 17018. (14.149)
Counseling for homebuyers, homeowners and tenants. Section 106, Housing and Urban Development Act of 1968, as amend. ed 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 admin. istered 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.
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)