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<br />t. <br />, <br />. <br /> <br />~ 12.10 Procedure for heuring. <br /> <br />~ 12.10-1 Time and place or hearing. <br /> <br />If and when the proceeding has <br />reached the state where a hearing is to <br />be held, the date for hearing shall be as- <br />signed by the administrative law judge <br />not less than 10 days after service on all <br />parties of a. motion by any of the parties, <br />jointly or individually. requesting assign- <br />ment of a date and stating that the mat- <br />tar is at issue and is ready for hearing. <br />The administrative law judge, after care- <br />ful consideration of the convenience of <br />the parties, also shall set a place of hear- <br />ing and shall file with the hearing clerk <br />a notice stating the time and place of <br />hearing, which shall be served upon the <br />parties. If any change in the time or <br />place of the hearing is made. the admin- <br />istrative law judge shall flle with the <br />hearing clerk a notice of such change, <br />which notice shall be served upon the <br />parties, unless it is made during the <br />course of the hearing and made a part of <br />the transcript. <br /> <br />fi 12.10-2 Appearances. <br /> <br />The parties may appear in person or by <br />colUlsel or other representative. Persons <br />who appear as coWlsel or in a representa- <br />tive capacity must conform to the stand- <br />ards of ethical conduct required of prac- <br />tit.1oners before the courts of the United <br />States. Whenever the secretary finds, <br />after notice and opportunity for hearing, <br />that 0. person, who is acting or has acted <br />as counselor representative for another <br />person in any proceeding before the <br />secretary, Is unfit to act as such repre- <br />sentative or counsel, he will order that <br />such person be precluded from acting as <br />cOlUlsel or representative in ar.y proceed- <br />ing under the act. The procedure in such <br />case will be governed by the applicable <br />provisions of this part as if the matter <br />involves a violation of the act: Provided, <br />That the complaint may be issued by the <br />administrator, the administrative law <br />judge, or the secretary. <br /> <br />ti ]2.]0-3 Failure 10 appear. <br /> <br />If any. party to the proceeding, after <br />being duly notified, fails to appear at the <br />hearing, he shan be deemed to have <br />waived the right to a hearing in the pro~ <br />ceeding. In the event that a party appears <br />at the hearing and no party appears for <br />the opposing side, the party who is pres- <br />ent shall have an election whether to <br />fjresent his evidence, in whole or in part, <br />'-in the form of affidavits or by oral testi~ <br />mony before the administrative law <br />judge. Failure to appear at a hearing <br />shall not be deemed to be a waiver of the <br />right to be served with a copy of the inl~ <br />tial decision of the administrative law <br />j~dge and to ,6l>;qeal as hereinafter pro- <br />VIded. ~~, <br /> <br />~ ]2.]~ Order or proceeding. <br /> <br />Except as may be detennlned other- <br />wise by the administrative law judge, the <br />adminIstrator shall proceed first at the <br />hearing. <br /> <br />~ ]2.]0-5 E,'idencc. <br /> <br />(a.) General.-The testimony of wit~ <br />nesses at the hearing shall be upon oath <br /> <br />100 <br /> <br />[ <br /> <br />I <br />\" <br /> <br />RULES AND REGULATIONS <br /> <br />or affirmation and subject to cross-exam- <br />ination. Any witness may, in the discre- <br />tion of the administrative law judge, be <br />examined separately and apart tram all <br />other witnesses except those who may be <br />parties to the proceeding. The adminis- <br />trative law judge shall determine and <br />rule upon the admissibility of evidence <br />and shall admit all relevant and material <br />evidence, except evidence which is un- <br />duly repetitious. <br />(b) Obiections.-If a party objects to <br />the admission or exclusion of any evI- <br />dence or to the limitation of the scope of <br />any examination or cross-examination, <br />or to any other ruling of the administra- <br />tive law judge, he shall briefly state the <br />grounds for such objection, whereupon <br />an automatic exception will follow <br />which may be pursued in an appeal pur- <br />suant to ~ 12.14 hereof by the party ad- <br />versely affected by the ruling of the ad- <br />ministrative law Judge. The transcript <br />need not 1nclude argument or debate <br />thereon except as may be ordered by the <br />administrative law judge. The ruling of <br />the administrative law judge on any ob- <br />jection shall be a part of the transcript. <br />Only objections made before the ..ad- <br />ministrative law judge may subsequently <br />be relied upon in the proceeding. <br />(c) Records 01 the Department.-A <br />true copy of every written entry in the <br />records of the Department, made by a.n <br />offi.cer or employee thereof in the course <br />of his official duty and relevant and <br />material to the issues 1nvolved in the <br />hearing, shall be admissible as prima <br />facie evidence of the facts stated therein, <br />without the production of such officer <br />or employee. <br />(d) Exhibits.-Except where the ad- <br />ministrative law judge :finds that the <br />furnishing of copies is impractIcable, <br />sufficient copies of each exhibit in addi- <br />tion to the orIginal and two copies, shall <br />be flIed with the administrative law <br />judge, for the use of each of the other <br />parties to the proceeding. A true copy of <br />an exhibit may be substituted for the <br />original. <br />(e) Officfal notice.-Official . notice <br />may be taken of official publications of <br />the Department and other Federal agen- <br />cies, of such matters as are judicially <br />noticed by the courts of the Untted <br />States, and of any other matter of tech- <br />nIcal or scientific fact of established <br />character: Provided, That the parties <br />shall be given adequate notice, at the <br />hearing or by reference in the admin- <br />istrative law judge's tnitial decision or <br />otherwise, of matters so noticed, and <br />shall be given adequate opportunity to <br />show that such facts are erroneously <br />nottced. <br />(n OOer 01 proo!.-Whenever evidence <br />is en:luc:led from the record, the party <br />o1Ie~ such evidence may make an <br />offer of proof, which shan be included <br />in the transcript. The.offer of proof shall <br />consist of a brief statement describing <br />the evidence excluded. It the evIdence <br />consists of a brief oral statement or of <br />an exhibit, it shall be inserted into the <br />transcript in toto. In such event, It shall <br />be considered a part of the transcrIpt <br />and record If the secretary, upon ap- <br /> <br />10799 <br /> <br />peal, decides the administrative law <br />judge's ruling excluding the evidence was <br />erroneous and prejudicial. The admin- <br />istrative law judge shan not allow the <br />insertion of such excluded evidence in <br />toto if the taking of such evidence w1Il <br />consume considerable time at the hear- <br />ing. In this latter event, if the secreta.ry <br />decides the administrative law judge's <br />ruling excluding the evidence was both <br />erroneous and prejudicial. the hearing <br />may be reopened to permit the taking <br />of such evidence. <br /> <br />~ ]2.10-6 Trunscripls. <br /> <br />(a) Filing and certijication.-Oral <br />hearings shall be stenographically re- <br />ported and transcribed. As soon as prac- <br />ticable after the close of the hearing, <br />and within the tIme prOVided by the re- <br />porting contract, the reporter shall <br />transmit to the hearing clerk the origi..- <br />nal of the transcript of testimony and <br />the original and copies ot exhibits in- <br />troduced or offered In evidence at the <br />hearing, and as many copies of the tran- <br />script as required and officially requested. <br />Upon receipt of the original and .copies <br />of the transcrIpt and exhibits, the hear- <br />ing clerk shall send to the aclmtnlstrative <br />law judge the original transcript and ex- <br />hibits. Within a reasonable time after re- <br />ceipt of the transcript and exhibits from <br />the hearing clerk, the administrative law <br />judge shalI attach to the original tran- <br />script of the evidence a certificate stat~ <br />ing that the transcript Is a true <br />transcript of the testtmony offered or <br />received at the hearing, except 1n such <br />particulars as he shall specify, and that <br />the exhibits transmitted are all the ex- <br />hibits offered or introduced at the bear- <br />ing. with such exceptions as he shall <br />specify. A copy of such certificate shall <br />be thereafter attached by the hearing <br />clerk to each of the copies of the tran- <br />script of evidence In his possession. <br />(b) Ordering copies.-Parties to the <br />proceedIng or other persons who desire <br />8 copy of the transcript of the hearing <br />may place orders at the hear~ng with <br />the reporter who will furnish and de- <br />liver such copies directly to the pur- <br />chaser upon payment therefor at the <br />rate per page provided by the contract <br />between the reporter and the purchaser. <br /> <br />~ ]2.10-7 Proposed findings of fact, <br />eonclusions9 and order; e.''LcCplionEl, <br />oral argumenl. <br /> <br />(a) With1n such time as the admin~ <br />istrative law judge may prescribe each <br />party may file willi the hearing clerk <br />proposed findings of fact, coneI usions. <br />and order, based solely on the record, and <br />a brief in support thereof. A copy of each <br />such docwnent filed by a party shall be <br />served upon the other party by the hear- <br />ing clerk. , <br />(b) Within 20 days aiter service of the <br />proposed findings of fact, conclusions, <br />and order, the opposing party may file a <br />reply in writing with the hearing clerk, <br />referri~g to the relevant pages of the <br />transcnpt, and suggesting corrected tlnd- <br />1ngS of fact, conclusions, or order, and <br />shall state in writing whether he desIres <br />to make oral argument thereon, other- <br /> <br />FEDERAL REGISTER, VOL. 38, NO. 84-WEDNESDAY, MAY 2, 1973 <br /> <br />OB~6' <br />