$81.104(b), as the case may be, a party may request the Secretary to review the final decision. The Secretary may grant or deny such request, in whole or in part, or serve notice of his intent to review the decision in whole or in part upon his own motion. If the Secretary grants the requested review, or if he serves notice of intent to review upon his own motion, each party to the decision shall have 20 days following notice of the Secretary's proposed action within which to file exceptions to the decision and supporting briefs and memoranda, or briefs and memoranda in support of the decision. Failure of a party to request review under this paragraph shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.

§ 81.107 SERVICE ON AMICI CURIAE

All briefs, exceptions, memoranda, requests, and decisions referred to in this subpart J shall be served upon amici curiae at the same times and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under § 81.71 shall be served on amici.

Subpart K-Judicial Standards of Practice

§ 81.111 CONDUCT

Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in a proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party whether or not a lawyer shall observe the traditional responsibilities of lawyers as officers of the court and use his best efforts to restrain his client from improprieties in connection with this proceeding.

§ 81.112 IMPORT CONDUCT

With respect to any proceeding it is improper for any interested person to attempt to sway the judgment of the reviewing authority by undertaking to bring pressure or influence to bear upon any officer having a responsibility for a decision in the proceeding, or his decisional staff. It is improper that such interested persons or any members of the Department's staff or the presiding officer give statements to communications media, by paid advertisement or otherwise, designed to influence the judgment of any officer having a responsibility for a decision in the proceeding, or his decisional staff. It is improper for any person to solicit communications to any such officer, or his decisional staff, other than proper communications by parties or amici curiae.

$81.113 EX PARTE COMMUNICATIONS

Only persons employed by or assigned to work with the reviewing authority who perform no investigative or prosecuting function in connection with a proceeding shall communicate ex parte with the reviewing authority, or the presiding officer, or any employee or person involved in the decisional process in such proceedings with respect to the merits of that or a factually related proceeding. The reviewing authority, the presiding officer or any employee or person involved in the decisional process of a proceeding shall communicate ex parte with respect to the merits of that or a factually related proceeding only with persons employed by or assigned to work with them and who perform no investigative or prosecuting function in connection with the proceeding.

§ 81.114 EXPEDITIOUS TREATMENT

Requests for expeditious treatment of matters pending before the responsible Department official or the presiding officer are deemed communications on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications should be in the form of a motion.

§ 81.115 MATTERS NOT PROHIBITED

A request for information which merely inquires about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Such requests should be directed to the Civil Rights

hearing clerk. Communications with respect to minor procedural matters or inquiries or emergency requests for extensions of time are not deemed ex parte communications prohibited by § 81.113. Where feasible, however, such communications should be by letter with copies to all parties. Ex parte communications between a respondent and the responsible Department official or the Secretary with respect to securing such respondent's voluntary compliance with any requirement of Part 80 of this title are not prohibited.

§ 81.116 FILING OF EX PARTE COMMUNICATIONS

A prohibited communication in writing received by the Secretary, the reviewing authority, or by the presiding officer, shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in such memorandum may file a comment for inclusion in the docket if he considers the memorandum to be incorrect.

Subpart L-Posttermination Proceedings

$81.121 POSTTERMINATION PROCEEDINGS

(a) An applicant or recipient adversely affected by the order terminating, discontinuing, or refusing Federal financial assistance in consequence of proceedings pursuant to this title may request the responsible Department official for an order authorizing payment, or permitting resumption, of Federal financial assistance. Such request shall be in writing and shall affirmatively show that since entry of the order, it has brought its program or activity into compliance with the requirements of the Act, and with the Regulation thereunder, and shall set forth specifically, and in detail, the steps which it has taken to achieve such compliance. If the responsible Department official denies such request the applicant or recipient shall be given an expeditious hearing if it so requests in writing and specifies why it believes the responsible Department official to have been in error. The request for such a hearing shall be addressed to the responsible Department official and shall be made within 30 days after the applicant or recipient is informed that the responsible Department official has refused to authorize payment or permit resumption of Federal financial assistance.

(b) In the event that a hearing shall be requested pursuant to subparagraph (a) of this section, the hearing procedures established by this part shall be applicable to the proceedings, except as otherwise provided in this section.

Subpart M-Definitions

$81.131 DEFINITIONS

The definitions contained in § 80.13 of this subtitle apply to this part, unless the context otherwise requires, and the term "reviewing authority" as used herein includes the Secretary of Health, Education, and Welfare, with respect to action by that official under § 81.106.

Transition provisions: (a) The amendments herein shall become effective upon publication in the FEDERAL REGISTER.

(b) These rules shall apply to any proceeding or part thereof to which Part 80 of this title as amended effective October 19, 1967 (published in the FEDERAL REGISTER for Oct. 19, 1967), and as the same may be hereafter amended, applies. In the case of any proceeding or part thereof governed by the provisions of Part 80 as that part existed prior to such amendment, the rules in this Part 81 shall apply as if these amendments were not in effect.

PART $2-PROCEDURAL RULES FOR PROCEEDINGS CONDUCTED PURSUANT TO ENFORCEMENT OF EXECUTIVE ORDER 11246, AND RULES, REGULATIONS, AND ORDERS THEREUNDER

82.35 Proposed findings of fact and 82.39 Oral argument before the re

Authority: The provisions of this Part 82 issued under sec. 209 (a) (1), (5), and (6) of the Executive Order 11246.

Source: The provisions of this Part 82 appear at 37 F.R. 7323, Apr. 13, 1972, unless otherwise noted.

General Information

§ 82.1 AUTHORITY

These rules of procedure supplement, and are established pursuant to, the provisions of 41 CFR 60-1.26 (b).

$82.2 SCOPE OF RULES

These rules govern the practice and procedure for proceedings conducted by the Department precedent to the imposition of sanctions under section 209 (a) (5) and (6) of Executive Order 11246, for violations of Executive Order 11246, and rules, regulations, and orders thereunder.

[38 FR 997, Jan. 8, 1973]

$82.3 WAIVER, MODIFICATION

Upon notice to all parties, the hearing officer, the reviewing authority, or the Secretary may, with respect to matters pending before him (or them, in the case of the reviewing authority), modify or waive any rule herein upon a determination that no party will be prejudiced and that the ends of justice will thereby be served.

§ 82.4 DEFINITIONS

(a) "Department" means the Department of Health, Education, and Welfare. (b) "Notice" means notice of proposed cancellation, termination, or ineligibility.

(c) "Party" means a respondent; the General Counsel of the Department of Health, Education, and Welfare; and any person or organization participating in a proceeding pursuant to section 6(a) of these rules.

(d) "Respondent" means a person or organization against whom sanctions are proposed because of alleged violations of Executive Order 11246, and rules, regulations, and orders thereunder.

(e) "Reviewing Authority" means the Reviewing Authority (Civil Rights) of the Department of Health, Education, and Welfare.

(f) "Secretary" means Secretary of the Department of Health, Education, and Welfare.

[37 FR 7323, Apr. 13, 1972, as amended at 38 FR 997, Jan. 8, 1973]

A party may appear in person, or by counsel, and participate fully, pursuant 'to the procedures set forth in these rules, in any proceeding held pursuant to these rules.

(a) (1) To the extent that proceedings hereunder involve employment of persons covered by a collective bargaining agreement, and compliance may necessitate a revision of such agreement, any labor organization which is a signatory to the agreement shall have the right to participate as a party.

(2) Other persons or organizations shall have the right to participate as parties if the final decision could directly and adversely affect them or the class they represent.

(3) Any person or organization wishing to participate as a party under this paragraph shall file and serve upon the hearing officer and all parties a petition within 14 days after the notice has been filed. Such petition shall concisely state: (i) Petitioner's interest in the proceeding, (ii) who will appear for petitioner, (iii) the issues on which petitioner wishes to partcipate, and (iv) whether petitioner intends to present witnesses.

(4) The hearing officer shall promptly determine whether there are objections to the petition. He shall then determine whether each petitioner has the requisite interest in the proceedings, as defined in subparagraphs (1) and (2) of this paragraph, and shall permit or deny participation accordingly. Where petitions to participate as parties are made by individuals or groups with common interests, the hearing officer may request all such petitioners to designate a single representative, or he may recognize one or more of such petitioners to represent all such petitioners; provided that the representative of a labor organization qualifying to participate under subparagraph (1) of this paragraph must be permitted to participate as a party. The hearing officer shall give each petitioner written notice of the decision on his petition, and shall serve such notice on each party. Notice of denials of party participation shall be served on the reviewing authority. If the petition is denied, he shall briefly state the grounds for denial and shall then treat the petition as a request for participation as amicus curiae.

(5) A person or organization whose petition for party participation is denied may appeal the decision to the reviewing authority within 7 days of receipt of the notice of denial. The reviewing authority will make the final decision to grant or deny the petition within 20 days of the date of receipt of the appeal.

(b) (1) Any other interested person or organization wishing to participate as amicus curiae shall file a petition before the commencement of the hearing. Such petition shall concisely state (i) the petitioner's interest in the hearing, (ii) who will represent the petitioner, and (iii) the issues on which petitioner intends to present argument. The hearing officer shall grant the petition if he finds that the petitioner has a legitimate interest in the proceedings, and that such participation will not unduly delay the outcome and may contribute materially to the proper disposition of the issues. The hearing officer shall give the petitioner written notice of his decision on the petition, and shall serve such notice on each party. If the petition is denied, the hearing officer shall briefly state the grounds for such denial.

(2) An amicus curiae is not a party but may participate as provided in this paragraph. An amicus curiae may present a brief oral statement at the hearing, at the point in the proceeding specified by the hearing officer. He may submit written statement at such time as the parties submit briefs and exceptions, and hearing, and shall serve a copy on each party. He may also submit a brief or written statement at such time as the parties submits briefs and exceptions, and shall serve a copy on each party.

[37 FR 7323, Apr. 13, 1972, as amended at 38 FR 997, Jan. 8, 1973]

Disrespectful, disorderly, or contumacious language or contemptuous conduct, refusal to comply with directions, or continued use of dilatory tactics by any person during any part of proceedings before a hearing officer, the reviewing authority, or the Secretary shall constitute grounds for immediate exclusion of such person from the remainder of the proceedings, or for other actions reasonably determined to prevent the future possibility of the proceedings being interrupted, delayed, or disrupted.

Form and Filing of Documents

$82.8 FORM

Documents filed pursuant to a proceeding herein shall be dated, the original signed in ink, shall show the docket description and title of the proceeding, and shall indicate the party or amicus filing, and the title, if any, and address of the signatory. Copies need not be signed, but the name of the person signing the original shall be reproduced.

§ 82.9 FILING, SERVICE

All documents submitted in a proceeding shall be filed, and served on all parties. The original and two copies of each document shall be submitted for filing. Filings shall be made with the hearing clerk at the address stated in the notice, during regular business hours. With respect to exhibits and transcripts of testimony, only originals need be filed.

§ 82.10 SERVICE-HOW MADE

Service shall be made by personal delivery of one copy to each person to be served, or by mailing by first-class mail, properly addressed with postage pre-paid. The notice shall be served upon the last known address of the respondent by registered mail, return receipt requested.

[38 FR 997, Jan. 8, 1973]

§ 82.11 DATE OF SERVICE

The date of filing or of service shall be the day when the matter is deposited in the U.S. mail or is delivered in person.

$82.12 CERTIFICATE OF SERVICE

The original of every document filed and required to be served upon parties shall be endorsed with a certificate of service signed by the party or amicus curiae making service or by his attorney or representative, stating the persons upon whom service has been made, date of service, and manner of service.