Revision of Hearing Procedures, 52112-52127 [E8-20761]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 73, Number 174 (Monday, September 8, 2008)]
[Proposed Rules]
[Pages 52112-52127]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20761]



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Part III





Department of Housing and Urban Development





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24 CFR Part 26



Revision of Hearing Procedures; Proposed Rule

Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / 
Proposed Rules

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 26

[Docket No. FR-5084-P-01]
RIN 2501-AD24


Revision of Hearing Procedures

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the hearing procedures before 
hearing officers who have the responsibility for adjudicating those 
matters that do not raise issues under the Administrative Procedure Act 
(APA). This proposed rule would also amend the hearing procedures 
before Administrative Law Judges (ALJs) who have the responsibility for 
adjudicating those matters that are subject to the requirements of the 
APA. Specifically, the proposed rule would modify pleading and motion 
requirements of the hearing procedures. It would also amend the 
discovery and deposition requirements to clarify the hearing officers' 
discovery procedures and to specifically allow for written 
interrogatories, in addition to depositions, requests for production of 
documents, and requests for admissions. A new provision allowing for 
written interrogatories would be added to the hearing procedures, and 
the proposed rule would also modify the procedures for the review of 
hearing officers' determinations. Additionally, the proposed rule would 
amend the discovery, appeal, and judicial review procedures related to 
hearings that are conducted pursuant to the APA. The proposed changes 
to the regulations would better reflect current practice and would 
conform the regulations more closely to statutory requirements.

DATES: Comment Due Date: November 7, 2008.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Regulations Division, Office of General 
Counsel, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Room 10276, Washington, DC 20410-0500. Communications must 
refer to the above docket number and title. There are two methods for 
submitting public comments. All submissions must refer to the above 
docket number and title.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, Department 
of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, 
Washington, DC 20410-0001.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make them immediately available to 
the public. Comments submitted electronically through the 
www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.

    Note: To receive consideration as public comments, comments must 
be submitted through one of the two methods specified above. Again, 
all submissions must refer to the docket number and title of the 
rule.

    No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted comments 
and communications submitted to HUD will be available for public 
inspection and copying between 8 a.m. and 5 p.m. weekdays at the above 
address. Due to security measures at the HUD Headquarters building, an 
advance appointment to review the public comments must be scheduled by 
calling the Regulations Division at 202-708-3055 (this is not a toll-
free number). Individuals with speech or hearing impairments may access 
this number via TTY by calling the Federal Information Relay Service at 
800-877-8339. Copies of all comments submitted are available for 
inspection and downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Dane Narode, Acting Associate General 
Counsel, Office of Program Enforcement, Administrative Proceedings 
Division, Department of Housing and Urban Development, 1250 Maryland 
Avenue, Suite 200, Washington, DC 20024-0500; telephone 202-708-2350 
(this is not a toll-free number); e-mail address: 
Dane.M.Narode@hud.gov. Hearing- or speech-impaired individuals may 
access the voice telephone number listed above by calling the toll-free 
Federal Information Relay Service during working hours at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    HUD's regulations implementing rules of procedure for hearings are 
located at 24 CFR part 26. Subpart A of part 26 applies to those 
hearing procedures before hearing officers who have the responsibility 
for adjudicating those matters that do not raise issues under the APA. 
HUD utilizes these rules of procedure with respect to determinations by 
the Multifamily Participation Review Committee, to: (1) Hearings 
conducted pursuant to referrals by debarring or suspending officials 
under 2 CFR part 2424; (2) hearings conducted pursuant to 24 CFR 
17.150-17.170; and (3) other administrative disputes. Subpart B of part 
26 applies to those hearing procedures before ALJs who have the 
responsibility for adjudicating those matters that are subject to the 
requirements of the APA.

II. This Proposed Rule

    This proposed rule would amend HUD's hearing procedures to reflect 
current practice and to more closely conform to applicable statutes; 
the hearing provisions of the APA; and parts 25, 28, and 30 of this 
title. Additionally, the sections would be reordered to better track 
the normal course of a hearing conducted under this part. The sections 
would be revised as follows:

------------------------------------------------------------------------
          Current part 26                      Proposed part 26
------------------------------------------------------------------------
              26.1                                 26.1
              26.2                                 26.2
              26.3                                 26.4
              26.4                                 26.3
              26.5                                 26.5
              26.6                                 26.6
              26.7                                 26.7
              26.8                                 26.8
              26.9                                26.12
             26.10                                26.13
             26.11                                26.14
             26.12                                26.15
             26.13                                26.16
             26.14                                 26.9
             26.15                                26.10
             26.16                                26.11
             26.17                                26.18
             26.18                                26.20
             26.19                                26.19
             26.20                                26.22
             26.21                                26.17
             26.22                                26.23
             26.23                                26.24
             26.24                                26.25
             26.25                                26.26
             26.26                                26.27
             26.27                                26.28
             26.28                                26.29
             26.29                                26.32
             26.30                                26.33
             26.31                                26.35
             26.32                                26.36
             26.33                                26.37

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             26.34                                26.31
             26.35                                26.30
             26.36                                26.34
             26.37                                26.38
             26.38                                26.40
             26.39                                26.41
             26.40                                26.39
             26.41                                26.42
             26.42                                26.43
             26.43                                26.44
             26.44                                26.45
             26.45                                26.46
             26.46                                26.47
             26.47                                26.49
             26.48                                26.48
             26.49                                26.50
             26.50                                26.52
             26.51                                26.53
             26.52                                26.54
             26.53                                26.55
             26.54                                26.56
------------------------------------------------------------------------

    This section of the preamble discusses the proposed regulatory 
changes.

A. Amendments to Subpart A--Hearings Before Hearing Officers

    Subpart A of part 26 contains the procedures for hearings before 
hearing officers. This proposed rule would amend subpart A to make the 
following revisions:
    In Sec.  26.1, the proposed rule would remove references to 
hearings conducted in matters arising under 24 CFR part 25, since those 
hearings would now be conducted in accordance with the provisions of 
subpart B of this part. A new paragraph (10) would be added to Sec.  
26.2 to clarify that the hearing officer shall have the authority 
necessary to carry out the duties of the hearing officer conducting 
hearings under this subpart.
    The title of the newly designated Sec.  26.4 would be changed to 
``Sanctions'' to more clearly indicate the section contents and would 
be revised to include more specific guidance on the imposition of 
sanctions. For clarity and ease of use, Sec.  26.5 would be divided 
into several paragraphs. Section 26.6 would be clarified to state that 
the attorneys within the Office of General Counsel will serve as the 
Department's representatives.
    Newly designated Sec.  26.9 would be divided into several 
paragraphs and minor changes would be made to clarify the form and 
filing requirements. Additionally, redesignated Sec.  26.10 would be 
revised to update the methods and clarify the provisions concerning 
service. Newly designated Sec.  26.11 would be revised to more closely 
track the similar provisions in subpart B.
    The newly designated Sec.  26.13 would be amended to provide the 
hearing officer with additional flexibility to designate a time period 
within which a complaint must be served and would be revised to clarify 
that the complaint must set forth both the factual and legal grounds 
for the action.
    Newly designated Sec.  26.14 would be broken into sections for 
clarity. Redesignated Sec.  26.15 would clarify that Respondents may 
amend without leave under the provisions of amendment by right in 
paragraph (a).
    The newly designated Sec.  26.16 would be amended to state that, 
whenever possible, requests for action by the hearing officer should be 
made by motion. This revised section would also revise the name of the 
response to the motion for clarity and would extend the time period for 
response to 10 days. Additionally, this revised section would more 
clearly provide for motions to extend deadlines, would allow for the 
submission of proposed orders with written motions, would clarify the 
provisions concerning extensions of time, and would specifically 
provide for motions for summary judgment.
    The discovery provisions in redesignated Sec. Sec.  26.18-26.22 
would be revised to more closely track the provisions of the Federal 
Rules of Civil Procedure, which have always been used as guidance in 
the conduct of hearings under this part. Specifically, the redesignated 
Sec.  26.18 would revise and expand the discovery provisions to allow 
the use of written interrogatories, in addition to depositions, 
requests for production of documents, and requests for admissions. The 
newly designated Sec. Sec.  26.19 and 26.20 would be revised to 
incorporate more definite requirements for requesting the production of 
documents and for depositions and objections to depositions. A new 
Sec.  26.21 would be added to allow for a limited number of 
interrogatories in discovery. The redesignated Sec.  26.22 would be 
revised to clarify the procedure for objections to admissions of facts 
and documents, and the title of that section would be changed to 
``Requests for admissions'' to more clearly indicate the section 
contents.
    The newly designated Sec.  26.24 would be revised to encourage the 
parties to enter into stipulations whenever possible. Redesignated 
Sec.  26.25 would clarify: (1) That the hearing officer's determination 
and order is final unless a party timely appeals it in accordance with 
redesignated Sec.  26.26, and (2) would require the determination to 
provide information on such review, if any. The redesignated Sec.  
26.26 would modify the provisions regarding Secretarial review of the 
determinations of hearing officers by specifically providing that the 
Debarring Official shall have authority to review determinations in 
suspension and debarment proceedings, not the Secretary, by 
incorporating more detailed requirements for the briefs both in support 
of and in opposition to the appeal and by providing for the Secretary's 
discretion to extend deadlines. Furthermore, redesignated Sec.  26.26 
would include additional provisions about evidence in the record and ex 
parte communications, and combine and expand upon provisions concerning 
the final, written determination.
    Redesignated Sec.  26.27 would be broken down into sections, for 
clarity.

B. Amendments to Subpart B--Hearings Pursuant to the Administrative 
Procedure Act

    Subpart B of part 26 contains the procedures for hearings conducted 
on the record pursuant to the APA. This proposed rule would amend 
subpart B to make the following revisions:
    The redesignated Sec.  26.29 will include a definition of 
``Respondent'' in the regulations and would modify the title of the 
docket clerk.
    A new subheading titled ``Administrative Law Judge'' would be 
inserted before the newly designated Sec.  26.32. The newly designated 
Sec.  26.32 would be revised to redesignate paragraph (n) as (o) and to 
include a new paragraph (n) clarifying the ALJ's authority to extend 
deadlines. Minor clarifications to the specific language of the section 
would be made to the new Sec. Sec.  26.34 and 26.35.
    A new subheading titled ``Parties'' would be inserted before the 
redesignated Sec.  26.36.
    Redesignated Sec.  26.38 would require the complaint to be filed 
with the Office of Administrative Law Judges upon issuance and would 
require the Respondent's response to be filed with the same office, 
with a copy served upon the Department in accordance with the 
procedures set forth in the complaint.
    Redesignated Sec.  26.40 would be revised to specifically provide 
for motions for summary judgment, would be revised to extend the time 
period for response to a motion to 10 days, and would more clearly 
provide for motions for time extensions. The newly designated Sec.  
26.42 would be amended to include more specific provisions for conduct 
of discovery under this subpart. As a result, the discovery procedures 
of subpart B will substantially conform to those of subpart A, and 
parties will be able to understand all applicable discovery procedures 
without having to reference the Federal Rules of Civil

[[Page 52114]]

Procedure. Additionally, Sec.  26.42 would provide that in discovery in 
Program Fraud Civil Remedies Act (PFCRA) actions, the defendant may 
review documents that relate to the allegations set out in the 
complaint.
    The redesignated Sec.  26.44 would be divided into additional 
paragraphs for clarity. The newly designated Sec.  26.45 would be 
amended to clarify the commencement dates and location of the hearing 
in PFCRA matters. Redesignated Sec.  26.47 would be revised to provide 
additional guidance and clarity.
    Section 26.49 would be amended to require that the hearing be 
recorded by a HUD-designated reporter and that the parties may obtain 
copies of the transcript.
    Section 26.50(a) would clarify that the initial decision of the ALJ 
does not become effective unless it becomes final agency action on its 
own under Sec.  26.50(c) or 26.52(l) or if it is incorporated into the 
final agency action by the Secretary's decision under Sec.  26.52(l). 
Redesignated Sec.  26.52 would be amended to provide that all parties 
may request Secretarial review of determinations in PFCRA matters. 
Redesignated Sec.  26.52 would also be amended to incorporate more 
detailed requirements for the briefs both in support of and in 
opposition to the appeal, to provide for the discretion to extend 
deadlines, and to combine and expand upon provisions concerning the 
final written decision.
    A new Sec.  26.51 would establish procedures for seeking 
interlocutory Secretarial review of the rulings of an ALJ by motion for 
certification or by petition to the Secretary.
    Redesignated Sec.  26.54 would be revised to eliminate the 
prohibition that the Government cannot seek judicial review of an 
adverse determination in PFCRA matters. The revision would bring the 
Government's right to review into conformity with that in non-PFCRA 
matters.

III. Small Business Concerns Related to Board Enforcement Actions

    With respect to enforcement actions undertaken pursuant to the 
procedures provided in this proposed rule, HUD is cognizant that 
section 222 of the Small Business Regulatory Enforcement Fairness Act 
of 1996 (Pub. L. 104-121) (SBREFA) requires the Small Business and 
Agriculture Regulatory Enforcement Ombudsman to ``work with each agency 
with regulatory authority over small businesses to ensure that small 
business concerns that receive or are subject to an audit, on-site 
inspection, compliance assistance effort, or other enforcement related 
communication or contact by agency personnel are provided with a means 
to comment on the enforcement activity conducted by this personnel.'' 
To implement this statutory provision, the Small Business 
Administration has requested that federal agencies include the 
following language on agency publications and notices that are provided 
to small business concerns at the time the enforcement action is 
undertaken. The language is as follows:

Your Comments Are Important

    The Small Business and Agriculture Regulatory Enforcement 
Ombudsman and 10 Regional Fairness Boards were established to 
receive comments from small businesses about federal agency 
enforcement actions. The Ombudsman will annually evaluate the 
enforcement activities and rate each agency's responsiveness to 
small business. If you wish to comment on the enforcement actions of 
[insert agency name], you will find the necessary comment forms at 
www.sba.gov/ombudsman or call 1-888-REG-FAIR (1-888-734-3247).

    In accordance with its notice describing HUD's actions on the 
implementation of SBREFA, which was published on May 21, 1998 (63 FR 
28214), HUD will include the language cited above on notices 
implementing enforcement actions, to ensure that small entities have 
the full means to comment on the enforcement activity conducted by HUD.

IV. Findings and Certifications

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule would clarify pleading, discovery, and motion 
requirements that apply to hearings before HUD hearing officers and 
ALJs, respectively, by codifying current practice and by eliminating 
the need for parties to refer to outside sources, such as the Federal 
Rules of Civil Procedure, for routine requirements. Procedures that 
apply to parties in matters adjudicated in such hearings will not 
change significantly as a result of this rule, whether or not parties 
are small entities. These revisions impose no significant economic 
impact on a substantial number of small entities. Therefore, the 
undersigned certifies that this rule will not have a significant impact 
on a substantial number of small entities.
    Notwithstanding HUD's determination that this rule will not have a 
significant economic impact on a substantial number of small entities, 
HUD specifically invites comments regarding less burdensome 
alternatives to this rule that will meet HUD's program 
responsibilities.

Environmental Impact

    This proposed rule does not direct, provide for assistance or loan 
and mortgage insurance for, or otherwise govern or regulate, real 
property acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
proposed rule is categorically excluded from environmental review under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from promulgating a 
regulation that has federalism implications and either imposes 
substantial direct compliance costs on state and local governments and 
is not required by statute, or preempts state law, unless the relevant 
requirements of Section 6 of the Executive Order are met. This rule 
does not have federalism implications and does not impose substantial 
direct compliance costs on state and local governments or preempt state 
law within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1531-1538) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on state, local, and 
tribal governments and the private sector. This proposed rule would not 
impose any federal mandates on any state, local, or tribal government 
or the private sector within the meaning of UMRA.

List of Subjects for 24 CFR Part 26

    Administrative practice and procedure.

    Accordingly, for the reasons discussed in the preamble, HUD 
proposes to revise 24 CFR part 26 to read as follows:

[[Page 52115]]

PART 26--HEARING PROCEDURES

Subpart A--Hearings Before Hearing Officers
Sec.
26.1 Purpose and scope.

Hearing Officer

26.2 Hearing officer, powers, and duties.
26.3 Ex parte communications.
26.4 Sanctions.
26.5 Disqualification of hearing officer.

Representation of the Parties

26.6 Department representative.
26.7 Respondent's representative.
26.8 Standards of practice.

Pleadings and Motions

26.9 Form and filing requirements.
26.10 Service.
26.11 Time computation.
26.12 Notice of administrative action.
26.13 Complaint.
26.14 Answer.
26.15 Amendments and supplemental pleadings.
26.16 Motions.

Discovery

26.17 Prehearing conference.
26.18 Discovery.
26.19 Request for production of documents.
26.20 Depositions.
26.21 Written interrogatories.
26.22 Requests for admissions.

Hearings

26.23 Public nature and timing of hearings; transcripts.
26.24 Rules of evidence.
26.25 Hearing officer's determination and order.

Secretarial Review

26.26 Review of determination of hearing officers.
26.27 Interlocutory rulings.
Subpart B--Hearings Pursuant to the Administrative Procedure Act
26.28 Purpose and scope.
26.29 Definitions.
26.30 Service and filing.
26.31 Time computations.

Administrative Law Judge

26.32 Powers and duties of the Administrative Law Judge (ALJ).
26.33 Ex parte communications.
26.34 Sanctions.
26.35 Disqualification of ALJ.

Parties

26.36 Parties to the hearing.
26.37 Separation of functions.

Prehearing Procedures

26.38 Commencement of action.
26.39 Prehearing conferences.
26.40 Motions.
26.41 Default.

Discovery

26.42 Discovery.
26.43 Subpoenas.
26.44 Protective orders.

Hearings

26.45 General.
26.46 Witnesses.
26.47 Evidence.
26.48 Posthearing briefs.
26.49 The record.
26.50 Initial decision.
26.51 Interlocutory rulings.
26.52 Appeal to the Secretary.
26.53 Exhaustion of administrative remedies.
26.54 Judicial review.
26.55 Collection of civil penalties and assessments.
26.56 Right to administrative offset.

    Authority: 42 U.S.C. 3535(d).

Subpart A--Hearings Before Hearing Officers


Sec.  26.1  Purpose and scope.

    This part sets forth rules of procedure in certain proceedings of 
the Department of Housing and Urban Development presided over by a 
hearing officer. These rules of procedure apply to administrative 
sanction hearings pursuant to 2 CFR part 2424 and to hearings with 
respect to determinations by the Multifamily Participation Review 
Committee pursuant to 24 CFR part 200, subpart H, to the extent that 
these regulations are not inconsistent and unless these regulations 
provide otherwise. They also apply in any other case where a hearing is 
required by statute or regulation, to the extent that rules adopted 
under such statute or regulation are not inconsistent.

Hearing Officer


Sec.  26.2  Hearing officer, powers, and duties.

    (a) Hearing officer. Proceedings conducted under these rules shall 
be presided over by a hearing officer who shall be an Administrative 
Law Judge or Office of Appeals Administrative Judge authorized by the 
Secretary or designee to conduct proceedings under this part.
    (b) Time and place of hearing. The hearing officer shall set the 
time and place of any hearing and shall give reasonable notice to the 
parties.
    (c) Powers of hearing officers. The hearing officer shall conduct a 
fair and impartial hearing and take all action necessary to avoid delay 
in the disposition of proceedings and to maintain order. The hearing 
officer shall have all powers necessary to those ends, including, but 
not limited to, the power:
    (1) To administer oaths and affirmations;
    (2) To cause subpoenas to be issued as authorized by law;
    (3) To rule upon offers of proof and receive evidence;
    (4) To order or limit discovery as the interests of justice may 
require;
    (5) To regulate the course of the hearing and the conduct of the 
parties and their counsel;
    (6) To hold conferences for the settlement or simplification of the 
issues by consent of the parties;
    (7) To consider and rule upon all procedural and other motions 
appropriate in adjudicative proceedings;
    (8) To take notice of any material fact not appearing in evidence 
in the record that is properly a matter of judicial notice;
    (9) To make and file determinations; and
    (10) To exercise such other authority as is necessary to carry out 
the responsibilities of the hearing officer under subpart A of this 
part.


Sec.  26.3  Ex parte communications.

    (a) Definition. An ex parte communication is any communication with 
a hearing officer, direct or indirect, oral or written, concerning the 
merits or procedures of any pending proceeding that is made by a party 
in the absence of any other party.
    (b) Prohibition of ex parte communications. Ex parte communications 
are prohibited except where:
    (1) The purpose and content of the communication have been 
disclosed in advance or simultaneously to all parties; or
    (2) The communication is a request for information concerning the 
status of the case.
    (c) Procedure after receipt of ex parte communication. Any hearing 
officer who receives an ex parte communication that the hearing officer 
knows or has reason to believe is unauthorized shall promptly place the 
communication, or its substance, in all files and shall furnish copies 
to all parties. Unauthorized ex parte communications shall not be taken 
into consideration in deciding any matter in issue.


Sec.  26.4  Sanctions.

    (a) The hearing officer may sanction a person, including any party 
or representative, for failing to comply with an order, rule, or 
procedure governing the proceeding; failing to prosecute or defend an 
action; or engaging in other misconduct that interferes with the 
speedy, orderly, or fair conduct of the hearing.
    (b) Any sanction, including, but not limited to, those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate 
to the severity and nature of the failure or misconduct.
    (c) If a party refuses or fails to comply with an order of the 
hearing officer,

[[Page 52116]]

including an order compelling discovery, the hearing officer may enter 
any appropriate order necessary to the disposition of the hearing 
including a determination against the noncomplying party, including but 
not limited to, the following:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, regard each matter about 
which an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with the order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; or
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with the order.
    (d) If a party fails to prosecute or defend an action brought under 
subpart A of this part, the hearing officer may dismiss the action or 
may issue an initial decision against the non-prosecuting or defending 
party.
    (e) The hearing officer may refuse to consider any motion, request, 
response, brief, or other document that is not filed in a timely 
fashion.


Sec.  26.5  Disqualification of hearing officer.

    (a) When a hearing officer believes there is a basis for 
disqualification in a particular proceeding, the hearing officer shall 
withdraw by notice on the record and shall notify the Secretary and the 
official initiating the action under appeal.
    (b) Whenever any party believes that the hearing officer should be 
disqualified from presiding in a particular proceeding, the party may 
file a motion with the hearing officer requesting the hearing officer 
to withdraw from presiding over the proceedings. This motion shall be 
supported by affidavits setting forth the alleged grounds for 
disqualification.
    (c) Upon the filing of a motion and affidavit, the hearing officer 
shall proceed no further in the case until the matter of 
disqualification is resolved.
    (d) If the hearing officer does not withdraw, a written statement 
of his or her reasons shall be incorporated in the record and the 
hearing shall proceed, unless the decision is appealed in accordance 
with the procedures set forth in Sec.  26.27.

Representation of the Parties


Sec.  26.6  Department representative.

    In each case heard before a hearing officer under this part, the 
Department shall be represented by attorneys from the Office of General 
Counsel.


Sec.  26.7  Respondent's representative.

    The party against whom the administrative action is taken may be 
represented at hearing, as follows:
    (a) Individuals may appear on their own behalf;
    (b) A member of a partnership or joint venture may appear on behalf 
of the partnership or joint venture;
    (c) A bona fide officer may appear on behalf of a corporation or 
association upon a showing of adequate authorization;
    (d) An attorney who files a notice of appearance with the hearing 
officer may represent any party. For purposes of this paragraph, an 
attorney is defined as a member of the bar of a federal court or of the 
highest court of any state or territory of the United States; or
    (e) An individual not included within paragraphs (a) through (d) of 
this section may represent the respondent upon an adequate showing, as 
determined by the hearing officer, that the individual possesses the 
legal, technical, or other qualifications necessary to advise and 
assist in the presentation of the case.


Sec.  26.8  Standards of practice.

    Attorneys shall conform to the standards of professional and 
ethical conduct required of practitioners in the courts of the United 
States and by the bars of which the attorneys are members. Any attorney 
may be prohibited by the hearing officer from representing a party if 
the attorney is not qualified under Sec.  26.7 or if such action is 
necessary to maintain order in or the integrity of the pending 
proceeding.

Pleadings and Motions


Sec.  26.9  Form and filing requirements.

    (a) Filing. Unless otherwise provided by statute, rule, or 
regulation:
    (1) Requests for hearings shall be filed with the Office of General 
Counsel's Docket Clerk, Department of Housing and Urban Development, 
451 Seventh Street, SW., Washington, DC 20410. The OGC Docket Clerk 
shall assign the docket number and forward the case to HUD's Office of 
Appeals.
    (2) All other pleadings, submissions, and documents should be filed 
directly with the appropriate hearing officer.
    (3) Filing may be made by first class mail, delivery, facsimile 
transmission, or electronic means; however, the hearing officer may 
place reasonable limits on filing by facsimile or electronic means. 
Duplicate copies are not required unless so ordered by the hearing 
officer. A document is considered timely filed if postmarked on or 
before the date due or delivered to the appropriate person by the date 
due.
    (b) Title. Documents shall show clearly the title of the action and 
the docket number assigned by the Docket Clerk.
    (c) Form. To the fullest extent possible, all documents shall be 
printed or typewritten in clear, legible form.


Sec.  26.10  Service.

    (a) Method of Service. One copy of all pleadings, motions, and 
other documents required or permitted under these rules shall be served 
upon all parties by the person filing them and shall be accompanied by 
a certificate of service stating how and when such service has been 
made. Whenever these rules require or permit service to be made upon a 
party represented by an attorney, the service shall be made upon the 
attorney, unless service upon the party is ordered by the hearing 
officer. Service shall be made by delivery, by first class mail or 
overnight delivery to that person's last known address, by facsimile 
transmission, or by electronic means; however, the hearing officer may 
place reasonable limits on service by facsimile transmission or 
electronic means. Delivery of a copy within this rule means: Handing it 
to the person to be served; or leaving it at that person's office with 
a clerk or other person in charge; or, if there is no one in charge, 
leaving it in a conspicuous place in the office; or, if the office is 
closed or the person to be served has no office, leaving it at that 
person's residence or usual place of abode with some person of suitable 
age and discretion who resides there. Service by mail, overnight 
delivery, facsimile transmission, or electronic means is complete upon 
deposit in a mail box, or upon posting, or upon electronic 
transmission.
    (b) Proof of Service. Proof of service shall not be required unless 
the fact of service is put in issue by appropriate motion or objection 
on the part of the person allegedly served. In these cases, service may 
be established by written receipt signed by or on behalf of the person 
to be served, or may be established prima facie by affidavit, 
certificate of service of mailing, or electronic receipt of sending.


Sec.  26.11  Time computation.

    (a) Generally. Computation of any period of time prescribed or 
allowed by this part shall begin with the first business day following 
the day on which the act, event, development, or default initiating the 
period of time occurred. When the last day of the period computed is a 
Saturday, Sunday, national holiday, or other day on which

[[Page 52117]]

the Department of Housing and Urban Development is closed, the period 
shall run until the end of the next following business day. When any 
prescribed or allowed period of time is 7 days or less, each of the 
Saturdays, Sundays, and national holidays shall be excluded from the 
computation of the prescribed or allowed period.
    (b) Entry of orders. In computing any time period involving the 
date of the issuance of an order or decision by a hearing officer, the 
date of the issuance is the date the order or decision is served on the 
parties by the hearing officer or Docket Clerk.
    (c) Service by mail. If a document is served by mail, 3 days shall 
be added to the time permitted for a response.
    (d) Extensions of time periods. Except where mandated by statute, 
the hearing officer (or in the case of a review under Sec. Sec.  26.26 
and 26.27, the Secretary or designee) may upon motion enlarge the time 
within which any act required by these rules must be performed where 
necessary to avoid prejudicing the public interest or the rights of the 
parties.


Sec.  26.12  Notice of administrative action.

    In every case, there shall be a notice of administrative action. 
The notice shall be in writing and inform the party of the nature of 
that administrative action. The notice shall state the reasons for the 
proposed or imposed action, except where general terms are permitted by 
2 CFR part 2424, and shall inform the party of any right to a hearing 
to challenge the administrative action, and the manner and time in 
which to request such hearing. A supplemental notice may be issued in 
the discretion of the initiating official to add to or modify the 
reasons for the action.


Sec.  26.13  Complaint.

    (a) Respondent. A complaint shall be served upon the party against 
whom an administrative action is taken, who shall be called the 
respondent.
    (b) Grounds. The complaint shall state the legal and factual 
grounds upon which the administrative action is based. The grounds set 
forth in the complaint may not contain allegations beyond the scope of 
the notice of administrative action or any amendment thereto.
    (c) Notice of administrative action as complaint. A notice of 
administrative action may serve as a complaint provided the notice 
states it is also a complaint and complies with paragraph (b) of this 
section.
    (d) Timing. When the notice does not serve as a complaint, the 
complaint shall be served on or before the 30th day after the referral 
to a hearing officer or a request for hearing is made, or within any 
other time period designated by the hearing officer.


Sec.  26.14  Answer.

    (a) Respondent shall file an answer within 30 days of receipt of 
the complaint, unless otherwise specified in this title or ordered by 
the hearing officer.
    (b) The answer shall:
    (1) Respond specifically to each factual allegation contained in 
the complaint;
    (2) Specifically plead any affirmative defense; and
    (3) Set forth any mitigating factors or extenuating circumstances.
    (c) A general denial shall not be permitted. Allegations are 
admitted when not specifically denied in respondent's answer.


Sec.  26.15  Amendments and supplemental pleadings.

    (a) Amendments. (1) By right: The Department may amend its 
complaint without leave at any time within 30 days of the date the 
complaint is filed or at any time before respondent's responsive 
pleading is filed, whichever is later. Respondent may amend its answer 
without leave at any time within 30 days of filing of its answer. A 
party shall plead in response to an amended pleading within 15 days of 
receipt of the amended pleading.
    (2) By leave: Upon conditions as are necessary to avoid prejudicing 
the public interest and the rights of the parties, the hearing officer 
may allow amendments to pleadings upon motion of any party.
    (3) Conformance to evidence: When issues not raised by the 
pleadings, but reasonably within the scope of the proceeding initiated 
by the complaint, are tried by express or implied consent to the 
parties, they shall be treated in all respects as if they had been 
raised in the pleadings, and amendments of the pleadings necessary to 
make them conform to the evidence shall be allowed at any time.
    (b) Supplemental pleadings. The hearing officer may, upon 
reasonable notice, permit service of a supplemental pleading concerning 
transactions, occurrences, or events that have happened or been 
discovered since the date of prior pleadings.


Sec.  26.16  Motions.

    (a) Motions. Requests for rulings or actions to be taken by the 
hearing officer should be made, wherever appropriate, in the form of a 
motion. All motions from the commencement of the action until the 
issuance of a decision shall be addressed to the hearing officer, and 
shall be served upon all parties to the proceeding.
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds for granting the motion. The 
parties may submit a proposed order with any motion.
    (c) Responses to motions. Within 10 days after receipt of any 
written motion, or within any other period as may be designated by the 
hearing officer, the opposing party shall respond to the motion and set 
forth any objections to the motion. Failure to file a timely response 
to the motion may constitute a party's consent to the granting of the 
motion. The moving party shall have no right to reply, except as 
permitted by the hearing officer.
    (d) Motions for extensions of time. Either party may file a motion 
for extension. At the discretion of the hearing officer, a motion for 
an extension of time may be granted for good cause at any time, 
notwithstanding an objection or any reply to the motion consistent with 
the provisions of Sec.  26.2(c)(5) and (7). The hearing officer may 
waive the requirements of this section as to motions for extensions of 
time.
    (e) Oral argument. The hearing officer may order oral argument on 
any motion.
    (f) Motions for summary judgment.
    (1) A party claiming relief or a party against whom relief is 
sought may timely move, with or without supporting affidavits, for 
summary judgment on all or part of the claim.
    (2) Objections in the consideration of summary judgment motions or 
answers thereto based upon a failure to strictly comply with the 
provisions of Rule 56 of the Federal Rules of Civil Procedure may, at 
the discretion of the hearing officer, be overruled.
    (g) Motions for dismissal. When a motion to dismiss the proceeding 
is granted, the hearing officer shall issue a determination and order 
in accordance with the provisions of Sec.  26.25.

Discovery


Sec.  26.17  Prehearing conference.

    (a) Prehearing conference. The hearing officer may, sua sponte or 
at the request of any party, direct counsel for all parties to confer 
with the hearing officer before the hearing for the purpose of 
considering:
    (1) Simplification and clarification of the issues;
    (2) Stipulations and admissions of fact and of the contents and 
authenticity of documents;

[[Page 52118]]

    (3) The disclosure of the names of witnesses;
    (4) Matters of which official notice will be taken;
    (5) Other matters as may aid in the orderly disposition of the 
proceeding, including disclosure of the documents or other physical 
exhibits that will be introduced into evidence in the course of the 
proceeding.
    (b) Recordation of prehearing conference. The prehearing conference 
shall, at the request of any party, be recorded or transcribed.
    (c) Order on prehearing conference. The hearing officer shall enter 
in the record an order that states the rulings upon matters considered 
during the conference, together with appropriate directions to the 
parties. The order shall control the subsequent course of the 
proceeding, subject to modifications upon good cause shown.


Sec.  26.18  Discovery.

    (a) General. The parties are encouraged to engage in voluntary 
discovery procedures, which may commence at any time after an answer 
has been filed. Parties may obtain discovery regarding any matter, not 
privileged, that is relevant to the claim or defense of any party, 
including the existence, description, nature, custody, condition, and 
location of any books, documents, or other tangible things and the 
identity and location of persons having knowledge of any discoverable 
matter. For good cause, the hearing officer may order discovery of any 
matter relevant to the subject matter involved in the action. To be 
relevant, information need not be admissible at the hearing, if the 
discovery appears reasonably calculated to lead to the discovery of 
admissible evidence. Each party shall bear its own expenses associated 
with discovery. Discovery may include:
    (1) Requests for production of documents as set forth in Sec.  
26.19;
    (2) Depositions as set forth in Sec.  26.20;
    (3) Written interrogatories as set forth in Sec.  26.21; and
    (4) Requests for admissions as set forth in Sec.  26.22.
    (b) Supplementation of responses. A party who has responded to a 
request for discovery with a response is under a duty to timely amend a 
prior response to an interrogatory, request for production, or request 
for admission if so ordered by the hearing officer, or if the party 
learns that the response is in some material respect incomplete or 
incorrect and if the additional or corrective information has not 
otherwise been made known to the other parties during the discovery 
process or in writing.
    (c) Requesting an order. In connection with any discovery 
procedure, by motion addressed to the hearing officer and upon a 
showing of a good faith attempt to resolve the issue without the 
hearing officer's intervention, either party may:
    (1) Request an order compelling a response with respect to any 
objection to or other failure to respond to the discovery requested or 
any part thereof, or any failure to respond as specifically requested, 
or
    (2) Request a protective order limiting the scope, methods, time 
and place for discovery, and provisions for protecting privileged 
information or documents.
    (d) Limitations. (1) By order, the hearing officer may set or alter 
limits on the number of document requests, depositions, and 
interrogatories, or the length of depositions.
    (2) Orders compelling discovery shall be issued only where such 
discovery will not compel the disclosure of privileged information, 
unduly delay the hearing, or result in prejudice to the public interest 
or the rights of the parties, and upon a showing of good cause.
    (3) Protective orders may be issued by a hearing officer if the 
hearing officer determines such an order is necessary to protect a 
party or other person from annoyance, embarrassment, oppression, or 
undue burden or expense because:
    (i) The discovery sought is unreasonably cumulative or duplicative, 
or is obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (ii) The party seeking discovery has had ample opportunity by 
discovery in the action to obtain the information sought; or
    (iii) The burden or expense of the proposed discovery outweighs its 
likely benefit, taking into account the needs of the case, the amount 
in controversy, the parties' resources, the importance of the issues at 
stake in the litigation, and the importance of the proposed discovery 
in resolving the issues.
    (4) A party need not provide discovery of electronically stored 
information from sources that the party identifies as not reasonably 
accessible because of undue burden or cost. On motion to compel 
discovery or for a protective order, the party from whom discovery is 
sought must show that the information is not reasonably accessible 
because of undue burden or cost. If that showing is made, the hearing 
officer may nonetheless order discovery from such sources if the 
requesting party shows good cause or, when the party's refusal to 
provide the information sought is solely due to undue expense, if the 
party seeking the discovery agrees to bear the expense associated with 
the request.
    (e) Refusal to honor discovery order. When a party refuses to honor 
a discovery order, the hearing officer may issue such orders in regard 
to the refusal as justice shall require.


Sec.  26.19  Request for production of documents.

    (a) Request to produce. Any party may serve upon any other party a 
written request to produce, and permit the party making the request, or 
someone acting on the requestor's behalf, to inspect, copy, test, or 
sample any designated documents--including writings, drawings, graphs, 
charts, photographs, sound recordings, images, and other data or data 
compilations stored in any medium from which information can be 
obtained--translated, if necessary, by the respondent into reasonably 
usable form, or to inspect, copy, test, or sample any designated 
tangible things that constitute or contain matters within the scope of 
Sec.  26.18(a) and which are in the possession, custody, or control of 
the party upon whom the request is served.
    (b) Procedure. The request shall set forth, either by individual 
item or by category, the items to be inspected, and describe each with 
reasonable particularity. The request shall specify a reasonable time, 
place, and manner of making the inspection and performing the related 
acts. The request may specify the form or forms in which electronically 
stored information is to be produced.
    (c) Response to request to produce. The party upon whom the request 
is served shall serve a written response within 20 days after service 
of the request. A shorter or longer time may be directed by the hearing 
officer, or in the absence of such an order, agreed to by the parties 
in a written document that shall be timely submitted to the hearing 
officer. The response shall state, with respect to each item or 
category, whether inspection and related activities will be permitted 
as requested. If there are any objections to any requests, including 
objections to the requested form or forms for producing electronically 
stored information, the response shall state the reasons for such 
objections. If objection is made to part of an item or category, the 
part shall be specified and inspection of the remaining parts shall be 
permitted. If objection is made to the requested format or forms for 
producing electronically stored information--or if no form was 
specified in the request--

[[Page 52119]]

the responding party must state the form or forms it intends to use. 
The party submitting the request may move for an order under Sec.  
26.18(c)(1) with respect to any objection to or other failure to 
respond to the request or any part thereof, or any failure to permit 
inspection as requested.
    (d) Form of production. Unless the parties otherwise agree, or the 
hearing officer otherwise orders:
    (1) A party who produces documents for inspection shall produce 
them as they are kept in the usual course of business or shall organize 
and label them to correspond with the categories in the request;
    (2) If a request does not specify the format or forms for producing 
electronically stored information, a responding party must produce the 
information in a form or forms in which it is ordinarily maintained or 
in a form or forms that are reasonably usable; and
    (3) A party need not produce the same electronically stored 
information in more than one form.


Sec.  26.20  Depositions.

    (a) Taking oral deposition. A party may take the oral deposition of 
any person. Reasonable written notice of deposition shall be served 
upon the opposing party and the deponent. The attendance of a deponent 
may be compelled by subpoena where authorized by law or by other order 
of the hearing officer.
    (b) Testifying on oral deposition. Each person testifying on oral 
deposition shall be placed under oath by the person before whom the 
deposition is taken. The deponent may be examined and cross-examined. 
The questions and the answers, together with all objections made, shall 
be recorded by the person before whom the deposition is to be taken, or 
under that person's direction.
    (c) Objections. Objection may be made to questions or answers for 
any reason that would require the exclusion of the testimony under 
Sec.  26.24 as if the witness were present and testifying at hearing. 
Objections shall be in short form, stating every ground for objection. 
Failure to object to any question or answer shall be considered a 
waiver of objection, unless the parties agree otherwise. Rulings on any 
objections shall be made by the hearing officer at hearing, or at such 
other time requested by motion. The examination shall proceed, with the 
testimony being taken subject to the objections; the deponent may be 
instructed not to answer only when necessary to preserve a privilege, 
to enforce a limitation directed by the hearing officer, or to present 
a motion for a protective order under Sec.  26.18(c)(2).
    (d) Submission to deponent. A transcript of the deposition shall be 
submitted to the deponent for examination and signature, unless 
submission is waived by the deponent and the parties. Any changes in 
form or substance that the deponent desires to make shall be entered 
upon the transcript by the person before whom the deposition was taken, 
with a statement of reasons given by the deponent for making them. The 
transcript shall then be signed by the deponent, unless the parties by 
stipulation waive the signing or the deponent is ill, cannot be found, 
or refuses to sign. If the transcript is not signed, the person before 
whom the deposition was taken shall sign it and state on the record the 
reason that it is not signed.
    (e) Certification and filing. The person before whom the deposition 
was taken shall make a certification on the transcript as to its 
accuracy. Interested parties shall make their own arrangements with the 
person recording the testimony for copies of the testimony and the 
exhibits.
    (f) Deposition as evidence. Subject to appropriate rulings by the 
hearing officer on objections, the deposition or any part may be 
introduced into evidence for any purpose if the deponent is 
unavailable. Only that part of a deposition that is received in 
evidence at a hearing shall constitute a part of the record in the 
proceeding upon which a decision may be based. Nothing in this rule is 
intended to limit the use of a deposition for impeachment purposes.
    (g) Payment of fees. Fees shall be paid by the person upon whose 
application the deposition is taken.


Sec.  26.21  Written interrogatories.

    (a) Service of interrogatories. Any party may serve upon any other 
party written interrogatories, not to exceed 25 in number, including 
all discrete subparts, unless additional interrogatories are agreed to 
by the parties or leave to serve additional interrogatories is granted 
by the hearing officer.
    (b) Response to interrogatories. Within 20 days after service of 
the request, the party upon whom the interrogatories are served shall 
serve a written response, unless the parties agree in a written 
document submitted to the hearing officer or the hearing officer 
determines that a shorter or longer period is appropriate under the 
circumstances. The response shall specifically answer each 
interrogatory, separately and fully in writing, unless it is objected 
to, in which event the objecting party shall state the reasons for any 
objections with specificity. Any ground not stated in a timely 
objection is waived unless the party's failure to object is excused by 
the hearing officer for good cause shown. If objection is made to only 
part of an interrogatory, the objectionable part shall be specified and 
the party shall answer to the extent that the interrogatory is not 
objectionable.
    (c) Option to produce business records. Where the answer to an 
interrogatory may be derived or ascertained from the business records, 
including electronically stored information, of the party upon whom the 
interrogatory has been served or from an examination, audit, or 
inspection of such business records, including a compilation, abstract, 
or summary thereof, and the burden of deriving or ascertaining the 
answer is substantially the same for the party serving the 
interrogatory as for the party served, it is a sufficient answer to 
such interrogatory to specify the records from which the answer may be 
derived or ascertained and to afford to the party serving the 
interrogatory reasonable opportunity to examine, audit, or inspect such 
records and to make copies, compilations, abstracts, or summaries. A 
specification shall be in sufficient detail to permit the interrogating 
party to locate and to identify, as readily as can by the party served, 
the records from which the answer may be ascertained.


Sec.  26.22  Requests for admissions.

    (a) Any party may serve upon any other party a written request for 
the admission of the genuineness of any relevant documents described in 
the request or of the truth of any relevant matters of fact. Copies of 
documents shall be delivered with the request unless copies have 
already been furnished. Each requested admission shall be considered 
admitted, unless within 30 days after service of the request, or within 
such other time as the parties may agree, or the hearing officer 
determines, the party from whom the admission is sought serves upon the 
party making the request either:
    (1) A statement that:
    (i) Denies specifically the relevant matters for which an admission 
is requested, or sets forth in detail the reasons why the party can 
neither truthfully admit nor deny them;
    (ii) Fairly meets the substance of the requested admission and, 
when good faith requires that a party qualify an answer or deny only a 
part of the matter

[[Page 52120]]

of which an admission is requested, specifies as much of it as is true 
and qualifies or denies the remainder; and
    (iii) Does not assert lack of information or knowledge as a reason 
for failure to admit or deny, unless the party states that the party 
has made reasonable inquiry, and that the information known or readily 
obtainable by the party is insufficient to enable the party to admit or 
deny; or
    (2) Written objections to a requested admission that:
    (i) State the grounds for the objection; and
    (ii) Object to a requested admission, if necessary, either in whole 
or in part, on the basis of privilege or relevance.
    (b) Responses to the request for admission on matters to which 
objections have been made may be deferred until the objection is ruled 
upon, but if written objections are made only to a part of a request, a 
response to the remainder of the request shall be provided.
    (c) Any matter admitted under this rule is conclusively established 
unless the hearing officer, on motion, permits withdrawal or amendment 
of the admission. Admissions obtained pursuant to this procedure may be 
used in evidence only for the purposes of the pending action. The use 
of obtained admissions as evidence is permitted to the same extent and 
subject to the same objections as other evidence.

Hearings


Sec.  26.23  Public nature and timing of hearings; transcripts.

    (a) Public hearings. All hearings in adjudicative proceedings shall 
be public.
    (b) Conduct of hearing. Hearings shall proceed with all reasonable 
speed. The hearing officer may order recesses for good cause, stated on 
the record. The hearing officer may, for convenience of the parties or 
witnesses, or in the interests of justice, order that hearings be 
conducted outside of Washington, DC, and, if necessary, in more than 
one location.
    (c) Transcripts. Hearings shall be recorded and transcribed only by 
a reporter designated by the Department under the supervision of the 
hearing officer. The original transcript shall be a part of the record 
and shall constitute the sole official transcript. Any party or a 
member of the public, at his own expense, may obtain copies of 
transcripts from the reporter.


Sec.  26.24  Rules of evidence.

    (a) Evidence. Every party shall have the right to present its case 
or defense by oral and documentary evidence, unless otherwise limited 
by law or regulation, to conduct such cross-examination and to submit 
rebuttal evidence as may be required for a full and true disclosure of 
the facts. Irrelevant, immaterial, privileged, or unduly repetitious 
evidence shall be excluded. Unless otherwise provided for in this part, 
the Federal Rules of Evidence shall provide guidance to the hearing 
officer in the conduct of proceedings under this part, but shall not be 
binding. Parties may object to clearly irrelevant material, but 
technical and hearsay objections to testimony as used in a court of law 
will not be sustained.
    (b) Testimony under oath or affirmation. All witnesses shall 
testify under oath or affirmation.
    (c) Objections. Objections to the admission or exclusion of 
evidence shall be in short form, stating the grounds of objections. 
Rulings on objections shall be a part of the transcript. Failure to 
object to admission or exclusion of evidence or to any evidentiary 
ruling shall be considered a waiver of objection, but no exception to a 
ruling on an objection is necessary in order to preserve it for appeal.
    (d) Authenticity of documents. Unless specifically challenged, it 
shall be presumed that all relevant documents are authentic. An 
objection to the authenticity of a document shall not be sustained 
merely on the basis that it is not the original.
    (e) Stipulations. The parties may stipulate as to any relevant 
matters of fact. Stipulations may be received in evidence at a hearing, 
and when received shall be binding on the parties with respect to the 
matters stipulated. The parties are encouraged to enter into 
stipulations of fact whenever possible.
    (f) Official notice. All matters officially noticed by the hearing 
officer shall appear on the record.
    (g) Burden of proof. The burden of proof shall be upon the 
proponent of an action or affirmative defense, including, where 
applicable, mitigating factors, unless otherwise provided by law or 
regulation.


Sec.  26.25  Hearing officer's determination and order.

    (a) Scope of review. The hearing officer shall conduct a de novo 
review of the administrative action to determine whether it is 
supported by a preponderance of the evidence, unless a different 
standard of proof is required by law or regulation. Each and every 
charge alleged by the Department need not be proven to support the 
administrative action. The hearing officer may modify or vacate the 
administrative action under review only upon a particularized finding 
of facts that justifies a deviation from the administrative action.
    (b) Closing of hearing. At the discretion of the hearing officer, 
the closing of the record may be postponed in order to permit the 
admission of other evidence into the record. In the event further 
evidence is admitted, each party shall be given an opportunity to 
respond to such evidence.
    (c) Briefs. Upon conclusion of the hearing, the hearing officer may 
request the parties to file proposed findings of fact and legal briefs. 
The hearing officer shall make a written determination and order based 
upon evidence and arguments presented by the parties. The determination 
shall be founded upon reliable and probative evidence. This 
determination and order shall be served upon all parties.
    (d) Bench decisions. Where the parties agree and where appropriate 
in the judgment of the hearing officer, a bench decision will be 
issued.