[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR86.409]



[Page 297-298]

 

                           TITLE 34--EDUCATION

 

PART 86_DRUG AND ALCOHOL ABUSE PREVENTION--Table of Contents

 

                       Subpart E_Appeal Procedures

 

Sec.  86.409  What are the procedures for conducting a hearing on the 

record?



    (a) A hearing on the record is an orderly presentation of arguments 

and evidence conducted by an ALJ.

    (b) An ALJ conducts the hearing entirely on the basis of briefs and 

other written submissions unless--

    (1) The ALJ determines, after reviewing all appropriate submissions, 

that an evidentiary hearing is needed to resolve a material factual 

issue in dispute; or

    (2) The ALJ determines, after reviewing all appropriate submissions, 

that oral argument is needed to clarify the issues in the case.

    (c) The hearing process may be expedited as agreed by the ALJ, the 

designated Department official, and the IHE. Procedures to expedite may 

include, but are not limited to, the following:

    (1) A restriction on the number or length of submissions.

    (2) The conduct of the hearing by telephone conference call.



[[Page 298]]



    (3) A review limited to the written record.

    (4) A certification by the parties to facts and legal authorities 

not in dispute.

    (d)(1) The formal rules of evidence and procedures applicable to 

proceedings in a court of law are not applicable.

    (2) The designated Department official has the burden of persuasion 

in any proceeding under this subpart.

    (3)(i) The parties may agree to exchange relevant documents and 

information.

    (ii) The ALJ may not order discovery, as provided for under the 

Federal Rules of Civil Procedure, or any other exchange between the 

parties of documents or information.

    (4) The ALJ accepts only evidence that is relevant and material to 

the proceeding and is not unduly repetitious.

    (e) The ALJ makes a transcribed record of any evidentiary hearing or 

oral argument that is held, and makes the record available to--

    (1) The designated Department official; and

    (2) The IHE on its request and upon payment of a fee comparable to 

that prescribed under the Department of Education Freedom of Information 

Act regulations (34 CFR part 5).



(Authority: 20 U.S.C. 1145g)



[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]