<br />t.
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<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
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<br />RULES AND REGULATIONS
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<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-
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<br />10799
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<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
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