(a) Failure to abide by any of the provisions of this subpart may result in the revocation or suspension of the approval to certify technicians (under §82.161), approval to act as a recovery/recycling equipment testing organization (under §82.160), or reclaimer certification (under §82.164), hereafter referred to as the “organization.” In such cases, the Administrator or her or his designated representative shall give notice of an impending suspension to the person or organization setting forth the facts or conduct that provide the basis for the revocation or suspension.

(b) Any organization that has received notice of an impending suspension or revocation may choose to request a hearing and must file that request in writing within 30 days of the date of the Agency's notice at the address listed in §82.160 and shall set forth their objections to the revocation or suspension and data to support the objections.

(c) If the Agency does not receive a written request for a hearing within 30 days of the date of the Agency's notice, the revocation will become effective upon the date specified in the notice of an impending suspension.

(d) If after review of the request and supporting data, the Administrator or her or his designated representative finds that the request raises a substantial factual issue, she or he shall provide the organization with a hearing.

(e) After granting a request for a hearing the Administrator or her or his designated representative shall designate a Presiding Officer for the hearing.

(f) The hearing shall be held as soon as practicable at a time and place determined by the Administrator, the designated representative, or the Presiding Officer.

(g) The Administrator or her or his designated representative may, at his or her discretion, direct that all argument and presentation of evidence be concluded within a specified period established by the Administrator or her or his designated representative. Said period may be no less than 30 days from the date that the first written offer of a hearing is made to the applicant. To expedite proceedings, the Administrator or her or his designated representative may direct that the decision of the Presiding Officer (who need not be the Administrator) shall be the final EPA decision.

(h) Upon appointment pursuant to paragraph (e) of this section, the Presiding Officer will establish a hearing file. The file shall consist of the following:

(1) The notice issued by the Administrator under §82.169(a);

(2) the request for a hearing and the supporting data submitted therewith;

(3) all documents relating to the request for certification and all documents submitted therewith; and

(4) correspondence and other data material to the hearing.

(i) The hearing file will be available for inspection by the petitioner at the office of the Presiding Officer.

(j) An applicant may appear in person or may be represented by counsel or by any other duly authorized representative.

(k) The Presiding Officer, upon the request of any party or at his or her discretion, may arrange for a pre-hearing conference at a time and place he or she specifies. Such pre-hearing conferences will consider the following:

(1) Simplification of the issues;

(2) Stipulations, admissions of fact, and the introduction of documents;

(3) Limitation of the number of expert witnesses;

(4) Possibility of agreement disposing of any or all of the issues in dispute; and

(5) Such other matters as may aid in the disposition of the hearing, including such additional tests as may be agreed upon by the parties.

(l) The results of the conference shall be reduced to writing by the Presiding Officer and made part of the record.

(m) Hearings shall be conducted by the Presiding Officer in an informal but orderly and expeditious manner. The parties may offer oral or written evidence, subject to the exclusion by the Presiding Officer of irrelevant, immaterial, and repetitious evidence.

(n) Witnesses will not be required to testify under oath. However, the Presiding Officer shall call to the attention of witnesses that their statements may be subject to the provisions of 18 U.S.C. 1001, which imposes penalties for knowingly making false statements or representations or using false documents in any matter within the jurisdiction of any department or agency of the United States.

(o) Any witness may be examined or cross-examined by the Presiding Officer, the parties, or their representatives.

(p) Hearings shall be reported verbatim. Copies of transcripts of proceedings may be purchased by the petitioner from the reporter.

(q) All written statements, charts, tabulations, and similar data offered in evidence at the hearings shall, upon a showing satisfactory to the Presiding Officer of their authenticity, relevancy, and materiality, be received in evidence and shall constitute a part of the record.

(r) Oral argument may be permitted at the discretion of the Presiding Officer and shall be reported as part of the record unless otherwise ordered by the Presiding Officer.

(s) The Presiding Officer shall make an initial decision that shall include written findings and conclusions and the reasons or basis regarding all the material issues of fact, law, or discretion presented on the record. The findings, conclusions, and written decision shall be provided to the parties and made a part of the record. The initial decision shall become the decision of the Administrator without further proceedings, unless there is an appeal to the Administrator or motion for review by the Administrator within 20 days of the date the initial decision was filed.

(t) On appeal from or review of the initial decision, the Administrator or her or his designated representative shall have all the powers which he or she would have in making the initial decision, including the discretion to require or allow briefs, oral argument, the taking of additional evidence, or a remand to the Presiding Officer for additional proceedings. The decision by the Administrator or her or his designated representative shall include written findings and conclusions and the reasons or basis therefore on all the material issues of fact, law, or discretion presented on the appeal or considered in the review.

[68 FR 43809, July 24, 2003]