Title 24
SECTION 3282.152
3282.152 Procedures to present views and evidence.
§ 3282.152 Procedures to present views and evidence.(a) Policy. All Formal and Informal Presentations of Views under this subpart shall be public, unless, for good cause, the Secretary determines it is in the public interest that a particular proceeding should be closed. If the Secretary determines that a proceeding should be closed, the Secretary shall state and make publicly available the basis for that determination.
(b) Request. Upon receipt of a request to present views and evidence under the Act, the Secretary shall determine whether the proceeding will be a Formal or an Informal Presentation of Views, and shall issue a notice under paragraph (c) of this section.
(c) Notice. When the Secretary decides to conduct a Formal or an Informal Presentation of Views under this section, the Secretary shall provide notice as follows:
(1) Except where the need for swift resolution of the question involved prohibits it, notice of a proceeding hereunder shall be published in the Federal Register at least 10 days prior to the date of the proceeding. In any case, notice shall be provided to interested persons to the maximum extent practicable. Direct notice shall be sent by certified mail to the parties involved in the hearing.
(2) The notice, whether published or mailed, shall include a statement of the time, place and nature of the proceeding; reference to the authority under which the proceeding will be held; a statement of the subject matter of the proceeding, the parties and issues involved; and a statement of the manner in which interested persons shall be afforded the opportunity to participate in the hearing.
(3) The notice shall designate the official who shall be the presiding officer for the proceedings and to whom all inquiries should be directed concerning such proceedings.
(4) The notice shall state whether the proceeding shall be held in accordance with the provisions of paragraph (f) - (Informal Presentation of Views) or paragraph (g) - (Formal Presentation of Views) of this section, except that when the Secretary makes the determinations provided for in sections 623 (d) and (f) of the Act, the requirements of paragraph (g) of this section shall apply. In determining whether the requirements of paragraph (f) or those of paragraph (g) of this section shall apply the Secretary shall consider the following:
(i) The necessity for expeditious action;
(ii) The risk of injury to affected members of the public;
(iii) The economic consequences of the decisions to be rendered; and
(iv) Such other factors as the Secretary determines are appropriate.
(d) Department representative. If the Department is to be represented by Counsel, such representation shall be by a Department hearing attorney designated by the General Counsel.
(e) Reporting and transcription. Oral proceedings shall be stenographically or mechanically reported and transcribed under the supervision of the presiding officer, unless the presiding officer and the parties otherwise agree, in which case a summary approved by the presiding officer shall be kept. The original transcript or summary shall be a part of the record and the sole official transcript, or summary. A copy of the transcript or summary shall be available to any person at a fee established by the Secretary, which fee the Secretary may waive in the public interest. Any information contained in the transcript or summary which would be exempt from required disclosure under § 3282.54 of these regulations may be protected from disclosure if appropriate under that section upon a request for such protection under § 3282.54(c).
(f) Informal presentation of views. (1) An Informal Presentation of Views may be written or oral, and may include an opportunity for an oral presentation, whether requested or not, whenever the Secretary concludes that an oral presentation would be in the public interest, and so states in the notice. A presiding officer shall preside over all oral presentations held under this subsection. The purpose of any such presentation shall be to gather information to allow fully informed decision making. Informal Presentations of Views shall not be adversary proceedings. Oral presentations shall be conducted in an informal but orderly manner. The presiding officer shall have the duty and authority to conduct a fair proceeding, to take all necessary action to avoid delay, and to maintain order. In the absence of extraordinary circumstances, the presiding officer at an oral Informal Presentation of Views shall not require that testimony be given under an oath or affirmation, and shall not permit either cross-examination of witnesses by other witnesses or their representatives, or the presentation of rebuttal testimony by persons who have already testified. The rules of evidence prevailing in courts of law or equity shall not control the conduct of oral Informal Presentations of Views.
(2) Within 10 days after an Informal Presentation of Views, the presiding officer shall refer to the Secretary all documentary evidence submitted, the transcript, if any, a summary of the issues involved and information presented in the Informal Presentation of Views and the presiding official's recommendations, with the rationale therefor. The presiding officer shall make any appropriate statements concerning the apparent veracity of witnesses or the validity of factual assertions which may be within the competence of the presiding officer. The Secretary shall issue a Final Determination concerning the matters at issue within 30 days of receipt of the presiding officer's summary. The Final Determination shall include:
(i) A statement of findings, with specific references to principal supporting items of evidence in the record and conclusions, as well as the reasons or bases therefor, upon all of the material issues of fact, law, or discretion as presented on the record, and
(ii) An appropriate order. Notice of the Final Determination shall be given in writing and transmitted by certified mail, return receipt requested, to all participants in the presentation of views. The Final Determination shall be conclusive, with respect to persons whose interests were represented.
(g) Formal presentation of views. (1) A Formal Presentation of Views is an adversary proceeding and includes an opportunity for the oral presentation of evidence. All witnesses shall testify under oath or affirmation, which shall be administered by the presiding officer. Participants shall have the right to present such oral or documentary evidence and to conduct such cross-examination as the presiding officer determines is required for a full and true disclosure of facts. The presiding officer shall receive relevant and material evidence, rule upon offers of proof and exclude all irrelevant, immaterial or unduly repetitious evidence. However, the technicalities of the rules of evidence prevailing in courts of law or equity shall not control the conduct of a Formal Presentation of Views. The presiding officer shall take all necessary action to regulate the course of the Formal Presentation of Views to avoid delay and to maintain order. The presiding officer may exclude the attorney or witness from further participation in the particular Formal Presentation of Views and may render a decision adverse to the interests of the excluded party in his absence.
(2) Decision. The presiding officer shall make and file an initial written decision on the matter in question. The decision shall be filed within 10 days after completion of the oral presentation. The decision shall include:
(i) A statement of findings of fact, with specific references to principal supporting items of evidence in the record and conclusions, as well as the reasons or bases therefor, upon all of the material issues of law or discretion presented on the record, and
(ii) An appropriate order.
The presiding officer's decision shall be final and shall constitute the Final Determination of the Secretary unless reversed or modified within 30 days by the Secretary. Notice of the Final Determination shall be given in writing, and transmitted by registered or certified mail, return receipt requested, to all participants in the proceeding. The Final Determination shall be conclusive with respect to persons whose interests were represented. [41 FR 19852, May 13, 1976, as amended at 51 FR 34467, Sept. 29, 1986]