[Code of Federal Regulations]
[Title 5, Volume 2]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR900.409]

[Page 531-532]
 
                    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,

[[Page 532]]

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 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.