training, where feasible. Feasibility here involves a consideration of (a) the availability of training opportunities for first year apprentices, (b) the hazardous nature of the work for beginning workers, (c) excessive unemployment of apprentices in their second and subsequent years of training.

(iii) That during the performance of the contract he will, to the greatest extent possible, employ the number of apprentices or trainees necessary to meet currently the requirements of subdivisions (i) and (ii) of this subparagraph.

(2) The contractor agrees to maintain records of employment by trade of the number of apprentices and trainees, apprentices and trainees by first year of training, and of journeymen, and the wages paid and hours of work of such apprentices, trainees and journeymen. The contractor agrees to make these records available for inspection upon request of the Department of Labor and the Federal agency concerned.

(3) The contractor who claims compliance based on the criterion stated in 5a.4(b) agrees to maintain records of employment, as described in §5a.3 (a) (2), on non-Federal and nonfederally assisted construction work done during the performance of this contract in the same labor market area. The contractor agrees to make these records available for inspection upon request of the Department of Labor and the Federal agency concerned.

(4) The contractor agrees to supply one copy of the written notices required in accordance with § 5a.4(c) at the request of Federal agency compliance officers. The contractor also agrees to supply at 3-month intervals during performance of the contract and after completion of contract performance a statement describing steps taken toward making a diligent effort and containing a breakdown by craft, of hours worked and wages paid for first year apprentices and trainees, other apprentices and trainees, and journeymen. One copy of the statement will be sent to the agency concerned, and one to the Secretary of Labor.

(5) The contractor agrees to insert in any subcontract under this contract the requirements contained in this paragraph (29 CFR 5a.3(a) (1), (2), (3), (4), and (5)). Sections 5a.4, 5a.5, 5a.6, and 5a.7 shall also be attached to each such contract for the information of the con

tractor. The term "contractor" as used in such clauses in any subcontract shall mean the subcontractor.

(b) The provisions of paragraph (a) of this section shall not apply with regard to any contract, if the head of the Federal agency concerned finds it likely that making of the contract with the clauses contained in paragraph (a) of this section will prejudice the national security.

§ 5a.4

Criteria for measuring diligent effort.

A contractor will be deemed to have made a "diligent effort" as required by § 5a.3 if during the performance of his contract he accomplishes at least one of the following three objectives:

(a) The contractor employs on this project a number of apprentices and trainees by craft as required by the contract clauses at least equal to the ratios established in accordance with § 5a.5.

(b) The contractor employs, on all his public and private, construction work combined in the labor market area of this project, an average number of apprentices and trainees by craft as required by the contract clauses, at least equal to the ratios established in accordance with § 5a.5.

of

(c) (1) Before commencement work on the project, the contractor if covered by a collective bargaining agreement will give written notice to all joint apprenticeship committees; the local U.S. Employment Security Office; local chapter of the Urban League, Workers Defense League, or other local organization concerned with minority employment; and the Bureau of Apprenticeship and Training Representative, U.S. Department of Labor, for the locality. The Contractor if not covered by a collective bargaining agreement will give written notice to all the groups stated above except joint apprenticeship committees; this contractor also will notify all non-joint apprenticeship sponsors in the labor market area.

(2) The notice will include at least the contractor's name and address, the job site address, value of contract, expected starting and completion dates, the estimated average number of employees in each occupation to be employed over the duration of the contract, and a statement of his willingness to employ a number of apprentices and trainees at least equal to the ratios established in accordance with § 5a.5.

(3) The contractor must employ all qualified applicants referred to him through normal channels (such as the Employment Service, the Joint Apprenticeship Committees and, where applicable, minority organizations and apprentice outreach programs who have been delegated this function) at least up to the number of such apprentices and trainees required by the applicable provision of § 5a.5.

§ 5a.5

Determination of ratios of apprentices or trainees to journeymen. The Secretary of Labor has determined that the applicable ratios of apprentices and trainees to journeymen in any occupation shall be as follows:

(a) In any occupation the applicable ratio of apprentices and trainees to journeymen shall be equal to the predominant ratio for the occupation in the area where the construction is to be undertaken, set forth in collective bargaining agreements or other employment agreements, and available through the Regional Manager for the Bureau of Apprenticeship and Training for the applicable area.

(b) For any occupation for which no such ratio is found, the ratio of apprentices and trainees to journeymen shall be determined by the contractor in accordance with the recommendations set forth in the standards of the National Joint Apprentice Committee for the occupation, which are filed with the U.S. Department of Labor's Bureau of Apprenticeship and Training.

(c) For any occupation for which no such recommendations are found, the ratio of apprentices and trainees to journeymen shall be at least one apprentice or trainee for every five journey

§ 5a.7 Enforcement.

(a) Each Federal agency concerned shall insure that the contract clauses required by § 5a.3(a) are inserted in every Federal or federally assisted construction contract subject thereto. Federal agencies administering assistance programs for construction work for which they do not contract directly shall promulgate regulations and procedures necessary to insure that contracts for the construction work subject to § 5a.3(a) will contain the clauses required thereby.

(b) Enforcement activities, including the investigation of complaints of violations, to assure compliance with the requirements of this part, shall be the primary duty of the Federal agency awarding the contract or providing the Federal assistance. The Department of Labor will coordinate its efforts with the Federal agencies, as may be necessary, to assure consistent enforcement of the requirements of this part. Enforcement of these provisions shall be in accordance with the procedures outlined in § 5.6 of Part 5 of this subtitle.

Appearances.

6.8

6.9

Hearing.

DECISION AND ORDER

6.10

6.11

Decision of the hearing examiner. Exceptions.

6.12

Relief from ineligible list.

6.13

6.14

Transmission of record.

Decisions and order of the Administrator.

MISCELLANEOUS

6.15

Service; copies of documents and pleadings.

6.16

Witnesses and fees.

6.17

Depositions.

(a) "Hearing examiner” means an administrative law judge appointed as provided in 5 U.S.C. 3105 and Subpart B of Part 930 of Title 5 of the Code of Federal Regulations (see 37 F.R. 16787) and qualified to preside at hearings under 5 U.S.C. 557.

(b) "Chief Hearing Examiner" means the Chief Administrative Law Judge, U.S. Department of Labor, Washington, D.C. 20210.

(c) "Respondent" means the contractor, subcontractor, or affiliate (in which a contractor or subcontractor is alleged to have a substantial interest) against whom the proceedings are brought.

(d) "The Act" means the Service Contract Act of 1965 as amended (79 Stat. 1034, 86 Stat. 789; 31 U.S.C. 351 et seq.).

(e) "Administrator" means the Deputy Assistant Secretary for Employment Standards in the Employment Standards Administration of the Department of Labor who is also Administrator of the Wage and Hour Division, or his authorized representative as set forth in this part.

(f) "Associate Solicitor in charge of litigation" means the Associate Solicitor for General Legal Services, Office of the Solicitor, U.S. Department of Labor. Washington, D.C. 20210.

[37 FR 25473, Nov. 30, 1972]

PREHEARING PROCEDURES

$6.3 Complaints.

(a) Issuance. The Deputy Solicitor shall institute enforcement proceedings by issuing a complaint and causing the

complaint to be served upon the respondent.

(b) Contents. The complaint shall contain a clear and concise factual statement sufficient to inform the respondent with reasonable definiteness of the acts or practices he is alleged to have committed in violation of the Act or his contractual obligation.

(c) Amendments. At any time prior to the close of the hearing, the complaint may be amended in the discretion of the hearing examiner and on such terms as he may approve.

(d) Notice of hearing. The hearing examiner shall notify the parties of the time and place for a hearing within 10 days after the service of the complaint. § 6.4 Answer.

(a) Filing and service. Within 14 days after the service of the complaint, the respondent shall file an answer with the Chief Hearing Examiner. The answer shall be signed by the respondent or his attorney.

(b) Contents; failure to file. The answer shall (1) contain a statement of the facts which constitute the grounds of defense, and shall specifically admit, explain, or deny, each of the allegations of the complaint unless the respondent is without knowledge, in which case the answer shall so state; or (2) state that the respondent admits all of the allegations of the complaint. The answer may contain a waiver of hearing. Failure to file an answer to or plead specifically to any allegation of the complaint shall constitute an admission of such allegation.

(c) Procedure upon admission of facts. The admission, in the answer or by failure to file an answer, of all the material allegations of fact contained in the complaint shall constitute a waiver of hearing. Upon such admission of facts, the hearing examiner without further hearing shall prepare his decision in which he shall adopt as his proposed findings of fact the material facts alleged in the complaint. The parties shall be given an opportunity to file exceptions to his decision, and to file briefs in support of the exceptions.

examiner or shall be stated orally and made part of the transcript. Each motion or request shall state the particular order, ruling, or action desired, and the grounds therefor. The hearing examiner is authorized to rule upon all motions or requests filed or made prior to the filing of his report.

§ 6.6

Consent findings and order.

(a) General. At any time after the issuance of a complaint and prior to the reception of evidence in any proceeding, the respondent may move to defer the receipt of any evidence for a reasonable time to permit negotiation of an agreement containing consent findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be in the discretion of the hearing examiner, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement being reached which will result in a just disposition of the issues involved.

(b) Content. Any agreement containing consent findings and an order disposing of a proceeding shall also provide:

(1) That the order shall have the same force and effect as an order made after full hearing;

(2) That the entire record on which any order may be based shall consist solely of the complaint and the agreement;

(3) A waiver of any further procedural steps before the hearing examiner and the Administrator; and

(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.

(c) Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:

(1) Submit the proposed agreement to the hearing examiner for his consideration; or

(2) Inform the hearing examiner that agreement cannot be reached.

(d) Disposition. In the event an agreement containing consent findings and an order is submitted within the time allowed therefor, the hearing examiner, within 30 days thereafter, shall

or

(a) Upon his own motion the motion of the parties, the hearing examiner may direct the parties or their counsel to meet with him for a conference to consider:

(1) Simplification of the issues;

(2) Necessity or desirability of amendments to pleadings for purposes of clarification, simplification, or limitation;

(3) Stipulations, admissions of fact and of contents and authenticity of documents;

(4) Limitation of the number of expert witnesses; and

(5) Such other matters as may tend to expedite the disposition of the proceeding.

(b) The record shall show the matters disposed of by order and by agreement in such pretrial conferences. The subsequent course of the proceeding shall be controlled by such action.

HEARINGS AND RELATED MATTERS § 6.8 Appearances.

(a) Representation. The parties may appear in person, by counsel, otherwise.

or

shall exclude evidence which is immaterial, irrelevant, or unduly repetitious.

(2) Objections. If a party objects to the admission or rejection of any evidence or to the limitation of the scope of any examination or cross-examination or the failure to limit such scope, he shall state briefly the grounds for such objection. Rulings on all objections shall appear in the record. Only objections made before the hearing examiner may be relied upon subsequently in the proceeding.

(3) Exceptions. Formal exception to an adverse ruling is not required.

(c) Official notice. Official notice may be taken of any material fact not appearing in evidence in the record, which is among the traditional matters of judicial notice and also concerning which the Department by reason of its functions is presumed to be expert: Provided, That the parties shall be given adequate notice, at the hearing or by reference in the hearing examiner's decision of the matters so noticed, and shall be given adequate opportunity to show the contrary.

(d) Transcript. Hearings shall be stenographically reported. Copies of the transcript may be obtained by the parties upon written application filed with the reporter, and upon the payment of fees at the rate provided in the agreement with the reporter.

DECISION AND ORDER

§ 6.10 Decision of the hearing exami

ner.

(a) Proposed findings of fact, conclusions, and order. Within 10 days after receipt of notice that the transcript of the testimony has been filed or such additional time as the hearing examiner may allow, each party may file with the hearing examiner proposed findings of fact, conclusions of law, and order, together with a supporting brief expressing the reasons for such proposals. Such proposals and brief shall be served on all parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal.

(b) Decision of the hearing examiner. Within a reasonable time after the time allowed for the filing of proposed findings of fact, conclusions of law, and order, or after submission of an agreement containing consent findings and order, the hearing examiner shall make his decision, which

shall become the final decision in the ad. ministrative process 20 days after service thereof unless exceptions are filed thereto, as provided in § 6.12. The decision of the hearing examiner shall include a statement of findings and conclusions, with reasons and bases therefor, upon each material issue of fact, law, or discretion presented on the record. If the respondent is found to have violated the Act, the hearing examiner in his decision shall make a recommendation to the Secretary of Labor as to whether the respondent should be relieved from the application of the ineligible list as provided in section 5(a) of the Act. If liquidated damages are found due and are unpaid, no recommendation for relief shall be made except on condition that the liquidated damages are paid. The decision shall also include an appropriate order (excluding such issue of ineligibility). The decision of the hearing examiner shall be based upon a consideration of the whole record, including any administrative admissions made under 6.6. It shall be supported by reliable, probative, and substantial evidence and be made upon the bases of a preponderance of that evidence. Any recommendation that the respondent be relieved by the Secretary of Labor from the ineligible list provision under section 5(a) of the Act as amended shall be supported by a finding of the unusual circumstances, within the meaning of such section, which are relied upon as a reason for the recommendation.

[32 FR 6133, Apr. 19, 1967, as amended at 37 FR 25474, Nov. 30, 1972]