[Code of Federal Regulations]
[Title 5, Volume 2]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR900.409]

[Page 502-503]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
          CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT (Continued)
 
PART 900--INTERGOVERNMENTAL PERSONNEL ACT PROGRAMS--Table of Contents
 
   Subpart D--Nondiscrimination in Federally Assisted Programs in the 
 Office of Personnel Management--Effectuation of Title VI of the Civil 
                           Rights Act of 1964
 
Sec. 900.409  Hearings.

    (a) Opportunity for hearing. When an opportunity for a hearing is 
required by Sec. 900.408(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of notice within 
which the applicant or recipient may request of OPM that the matter be 
scheduled for hearing or (2) advise the applicant or recipient that the 
matter in question has been set down for hearing at a stated time and 
place. The time and place so fixed shall be reasonable and subject to 
change for cause. The complainant, if any, shall be advised of the time 
and place of the hearing. An applicant or recipient may waive a hearing 
and submit written information and argument for the record. The failure 
of an applicant or recipient to request a hearing under this paragraph 
or to appear at a hearing for which a date has been set is deemed to be 
a waiver of the right to a hearing under section 602 of title VI and 
Sec. 900.408(c) and consent to the making of a decision on the basis of 
the information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of OPM in Washington, DC, at a time fixed by OPM unless it determines 
that the convenience of the applicant or recipient or of OPM requires 
that another place be selected. Hearings shall be held before the 
Director of Office of Personnel Management, or at his/her discretion, 
before a hearing examiner appointed in accordance with section 3105 of 
title 5, United States Code, or detailed under section 3344 of title 5, 
United States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and OPM have the right to be represented by 
counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
an administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with the rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both OPM and the 
applicant or recipient are entitled to introduce relevant evidence on 
the issues as stated in the notice for hearing or as determined by the 
officer conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant

[[Page 503]]

to this subpart, but rules or principles designed to assure production 
of the most credible evidence available and to subject testimony to test 
by cross-examination shall be applied where determined reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. 
Documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. Decisions shall be based 
on the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this subpart 
with respect to two or more programs to which this subpart applies, or 
noncompliance with this subpart and the regulations of one or more other 
Federal departments or agencies issued under title VI, OPM may, by 
agreement with the other departments or agencies, when applicable, 
provide for the conduct of consolidated or joint hearings, and for the 
application to these hearings of rules or procedures not inconsistent 
with this subpart. Final decisions in these cases, insofar as this 
regulation is concerned, shall be made in accordance with Sec. 900.410.