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<br />10800
<br />
<br />wise he shall be deemed to have waived
<br />such oral argwnent.
<br />(c) Within the same periods of time.
<br />either party may file with the hearing
<br />clerk a brief statement in writing con-
<br />cerning each of the objections taken to
<br />the action of the administrative law
<br />judge at the hearing, as set out in
<br />~ 12.10-5 (b). upon which the party
<br />wishes to rely. referring, where relevant,
<br />to the pages of the transcript.
<br />
<br />{; 12.10-8 Admilli.~tralh.e law judge'"
<br />illili81 decil!iion.
<br />
<br />(a) The administrative law judge,
<br />within a reasonable time after the ter-
<br />mination of the period allowed to the
<br />parties for the filing of proposed find-
<br />ings of fact, conclusions. and order, and
<br />briefs In support thereof, or in case oral
<br />argument is held, after such oral argu-
<br />ment, shall prepare on the basis of the
<br />record and shall file with the hearing
<br />clerk, his initial decision containing his
<br />findings of fact, conclusions, and order.
<br />A copy of such initial decision shall be
<br />served by the hearing: clerk upon each
<br />of the parties.
<br />(b) Such initial decision shall become
<br />final without further proceedings 30 days
<br />after service thereof W11ess there is an
<br />appeal to the secretary by a party to the
<br />proceeding: Provided, however, That no
<br />decision shall be final for purposes of
<br />judictal review except a final decision of
<br />the secretary upon appeal.
<br />
<br />~ 12.10-9 Appeal of inilial decision.
<br />
<br />Within 30 days after receipt of the
<br />administrative law judge's initial de-
<br />cision. any party to the proceeding may
<br />file an appeal in the lUanneI' described
<br />in ~ 12.14.
<br />
<br />t; 12.11 Motions .and requcsts.
<br />
<br />~ 12.l1-1 GCI1f:'ral.
<br />
<br />All motions and requests shall be filed
<br />with the hearing clerk, and shall be
<br />served upon all the parties, except those
<br />made dUling the course of an oral hear~
<br />ing may be filed with the administrative
<br />law judge or may be stated orally and
<br />made a part of the tran.script. The ad-
<br />ministrative law judge is authorized to
<br />rule upon all motions and requests filed
<br />or made prior to the filing of the initial
<br />decision with the hearing clerk as herein-
<br />before provided. The secretary will rule
<br />on any motions and requests filed after
<br />that time.
<br />
<br />~ 12.11-2 Motions cnlerlaincd.
<br />
<br />Any motion will be entertained except
<br />a motion to dismiss on the pleadings. All
<br />motions and requests concerning the suf-
<br />ficiency of the complaint must be made
<br />within the t1rne allowed for filing an
<br />answer.
<br />
<br />~ 12.11-3 Contcnls.
<br />
<br />All written motions and requests shall
<br />state the particular order. ruling, or ac-
<br />tion desired and the grounds therefor.
<br />
<br />~ 12.11-4 Reponse to mOlions tmd re~
<br />quests.
<br />
<br />Within 1& days after serv1ce ot any
<br />written motion or request, or within such
<br />
<br />RULES AND REGULATIONS
<br />
<br />other period fixed by the secretary or the
<br />administrative law judge. t~ opposing
<br />party shall file a response to the motion
<br />or request. If the opposing party does
<br />not file a timely response. he shall be
<br />.deemed to have no. objection to the
<br />granting of the relief asked for in .the
<br />motion or request. Unless permitted by
<br />the administrative law judge, or by the
<br />secretary, the movlng party shall have
<br />no right to reply to the answer.
<br />
<br />ti 12.11-5 Cerlificalioll to sccrelar,'.
<br />
<br />The submission or certification of any
<br />motion. request, objection, or other ques~
<br />tion to the secretary prior to the time
<br />when the administrative law judge's ini-
<br />tial decision is filed with the hearing
<br />clerk shall be by and in the discretion
<br />of the administrative law judge. The ad-
<br />ministrative law judge may either rule
<br />upon or certify the motion. request, ob-
<br />jection, or other question. but not both.
<br />
<br />~ 12.12 Prchcaring conrerences.
<br />
<br />When it appears' that such procedure
<br />will expedite the proceeding, the admin-
<br />istrative law judge. at any time prior to
<br />the commencement of the oral hearing,
<br />may request the parUes or their cOW1sel
<br />to appear at a' conference before him
<br />to consider: (a) The simplification of
<br />issues: (b) the necessity or desirability
<br />of amendments to pleadings; (c) the
<br />possibility of obtaining stipulations of
<br />fact and of documents which will avoid
<br />Wlnecessary proof: ld) the limitation of
<br />the nwnber of experts or other witnesses;
<br />and (e) such other matters as may ex-
<br />pedite and aid in the disposition of the
<br />proceeding. No transcript of such con-
<br />ference shall be made, but the admtnis~
<br />trative law judge shall prepare and file
<br />for the record e. written summary of the
<br />action taken at the conference, which
<br />shall incorporate any written stipula-
<br />tions 01' agreements made by the parties
<br />at the conference or as a result of the
<br />conference. If the circumstances are such
<br />that a conference is impracticable, the
<br />administrative law judge may request the
<br />parties to correspond with him for the
<br />purpose of accomplishing any of the ob-
<br />jects set forth in this section. The ad-
<br />ministi..ative law 1udge shall forward
<br />copies of letters and docwnents to the
<br />parties as the circumstances require.
<br />Correspondence in such negotiations
<br />shall not be a part of the record. but the
<br />administrative law judge shall submit a
<br />written summary for the record if any
<br />action is taken.
<br />
<br />~ 12.13 Adrninislrative law judge.
<br />
<br />ti 12.13-1 AS!lignmcnl.
<br />
<br />No administrative law judge shall be
<br />assigned to serve in any proceeding who:
<br />(a) Has any pecuniary interest in any
<br />matter or business involved in the pro-
<br />ceeding, (b) is related within the third
<br />degree by blood or marrIage to any party
<br />to the proceeding; or (c) has partici-
<br />pated in the investigation preceding the
<br />institution of the proceeding or in the
<br />determination that it should be insti-
<br />tuted or in the preparation of the com-
<br />plaint or in the development of the ev:l-
<br />dence to be introduced therein.
<br />
<br />6 12.13-2 Di~quulificntion or :adll1ini~-
<br />lruth'e low judge.
<br />
<br />(a) Any party to the proceeding may.
<br />by motion made to the administrative
<br />law judge. request that the administra-
<br />tive law judge disqualify himself and
<br />withdraw from the proceeding. The ad-
<br />. ministrative law judge may then either
<br />rule upon or certify the motion to the
<br />secretary. but not both.
<br />(b) An administrative law judge shall
<br />withdraw from any proceeding in which
<br />he deems himself disqualified for any
<br />reason.
<br />
<br />~12.13-3 Conducl.
<br />
<br />At no stage of the proceeding between
<br />its institution and the issuance of the
<br />tinal decision shall the secretary or the
<br />administrative law judge discuss ex parte
<br />the merits of the proceeding with any
<br />person who is connected with the pro-
<br />ceeding in an advocative or In an inves-
<br />tigative capacity. or with any representa~
<br />tive of such pel'son: Provided. That the
<br />secretary or administrative law judge
<br />may discuss the merits of the case with
<br />such a person if all parties to the pro-
<br />ceeding, or their representatives, have
<br />been given an opportunity to be present.
<br />Any memorandwn or other commWlica-
<br />tion addressed to the secretary or an
<br />administratiVe law judge. during the
<br />pendency of the proceeding, and relating
<br />to the merits thereof, by or on behalf of.
<br />any party shall be regarded as argument
<br />made in the proceeding and shall be filed
<br />with the hearing clerk, who shall serve
<br />a copy thereof upon the opposite party
<br />to the proceeding. and oppohunity will
<br />be given the opposite party to file a reply
<br />thereto.
<br />
<br />~ 12.13-4 POYlC'rs.
<br />
<br />Subject to review by the secretary as
<br />provided elsewhere in this part, the ad~
<br />ministrative law judge, in any proceed-
<br />ing assigned to him, shall have power
<br />10:
<br />(a) Rule upon motions and requests:
<br />(b) Set the time and place of prehear-
<br />Ing conferences, hearing, adjourn. the
<br />hearing from time to time, and change
<br />the time and place of hearing:
<br />(c) Administer oaths and affirmations
<br />and t.ake affidavIts;
<br />(d) Examine witnesses and receive
<br />evidence:
<br />(e) Admit or exclude evidence;
<br />(0 Hear oral argument on facts or
<br />law, or both; and
<br />(g) Do all acts and take all measures
<br />necessary for the maintenance of order
<br />at the hearing and for the efficient, fair,
<br />and impartial conduct of the proceeding.
<br />
<br />~ 12.13-5 Who may oct in Ihe absence
<br />of Ihe adminislralh'e low judge.
<br />
<br />In case of the absence of the admin-
<br />istrative law judge or his ina.bility to act.
<br />the powers and duties to be performed
<br />by him under this part in connection with
<br />a proceeding assigned to him may, with-
<br />out abatement of the proceeding unless
<br />otherwise directed by the secretary, be
<br />assigned to any other administrative law
<br />Judge.
<br />
<br />.
<br />
<br />.
<br />
<br />.
<br />
<br />.
<br />
<br />FEDERAL REGISTER, VOL. 38, NO. 84-WEDNESDAY, MAY 2, 1973
<br />
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