TIME

§ 82.13 COMPUTATION

In computing any period of time under these rules or in an order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed in the District of Columbia, in which event it includes the next following business day. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.

Prehearing Procedures

$82.14 NOTICE OF PROPOSED CANCELLATION, TERMINATION OF INELIGIBILITY Proceedings are commenced by the mailing of a written notice of proposed cancellation, termination, or ineligibility to the last known address of the respondent by registered mail, return receipt requested. The notice shall contain a concise jurisdictional statement, a short and plain statement of the matters furnishing a basis for the imposition of sanctions, an enumeration of the sanctions being requested, and a citation of the provisions of the order and regulations pursuant to which the requested action may be taken. The notice shall also indicate that respondent may request a hearing on the matters alleged.

[38 FR 997, Jan 8, 1973]

882.15 ANSWER TO NOTICE

(a) Within fourteen (14) days from receipt of the notice, respondent may file with the hearing officer, or if no hearing officer has been designated, with the Reviewing Authority, an answer to the notice and may request a hearing. The request for a hearing shall be included as a separate paragraph of the answer. (b) The answer shall admit or deny specifically and in detail the matters set forth in each allegation of the notice unless respondent is without knowledge, in which case the answer shall so state, and the statement shall be deemed a denial. Matters alleged as affirmative defenses shall be separately stated and numbered. (c) If respondent fails to file an answer, request a hearing, or otherwise formally contest the allegations in the notice within the 14-day period following receipt of the notice, the matters alleged in the notice are deemed admitted and respondent's opportunity for hearing is deemed waived. The Director, Office for Civil Rights, may then cancel, suspend or terminate any one or more contracts or subcontracts, or parts thereof, held by respondent, or enter an order declaring such contractor or subcontractor ineligible for further contracts, subcontracts, or extensions or other modification of existing contracts, until the contractor or subcontractor has satisfied the Secretary of Labor that it has established and has established and will carry out personnel and employment policies and practices in compliance with the order.

(d) In response to respondent's request for a hearing, respondent shall be advised by the reviewing authority that a hearing officer has been designated and that the matter has been set down for hearing at a stated time and place. The time and place so fixed shall be reasonable and shall be subject to change for cause.

[38 FR 997, Jan. 8, 1973]

§ 82.16 AMENDMENTS

The Department may amend its notice once as a matter of course before an answer is filed, and respondent may amend its answer once as a matter of course not later than 15 days after it is filed. Other amendments of the notice or of the answer to the notice shall be made only by leave of the hearing officer. An amended notice shall be answered within 10 days of its service, or within the time for filing an answer to the original notice, whichever period is longer, unless the hearing officer orders otherwise.

$82.17 MOTIONS

Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged. If made before or after the hearing itself, these matters shall be in writing. If made at the hearing, they may be stated orally; but the hearing officer may require that they be reduced to writing and filed and served on all parties in the same manner as a formal motion. Within 8 days after a writ

ten motion or petition is served, or such other time period as the hearing officer, reviewing authority, or Secretary, may fix, any party may file a response to a motion or petition. An immediate oral response may be made to an oral motion.

§ 8218 DISPOSITION OF MOTIONS

The hearing officer, reviewing authority, or Secretary, may not grant a written motion or petition prior to expiration of the time for filing responses thereto, but may overrule or deny such motion or petition without awaiting response: Provided, however, That prehearing conferences hearings and decisions need not be delayed pending disposition of motions or petitions. Oral motions and petitions may be ruled on immediately.

§ 82.19 DEPOSITIONS

Upon such terms as may be just, for the convenience of the parties, or where the ends of justice will be served, the hearing officer may authorize or direct the testimony of any witness to be taken by deposition. Depositions shall be recorded by the official reporter designated for hearings. The party seeking to take a deposition should serve copies of the application on the parties to the proceeding, who should be given an opportunity, along with the deponent, to notify the hearing officer of any objections to the taking of the deposition.

Designation and Responsibilities of Hearing Officer

$82.20 DESIGNATION

Hearings shall be held before a hearing officer designated by the reviewing authority. After service of a notice designating a hearing officer to preside, and until such officer makes his decision, motions and petitions shall be submitted to him. In the case of the death, illness, disqualification, or unavailability of the designated hearing officer, another hearing officer may be designated to take his place. Until such replacement has been designated, all motions and petitions shall be submitted to the reviewing authority.

§ 82.21 AUTHORITY AND RESPONSIBILITIES

The hearing officer shall propose findings and conclusions to the reviewing authority on the basis of the record before him. In order to do so, he shall have the duty to conduct a fair and impartial hearing, to take all necessary action to avoid delay, and to maintain order. He shall have all powers necessary to those ends, including, but not limited to, the power to:

(a) Hold conferences, including prehearing conferences, to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding.

(b) Require parties to state their position with respect to the various issues in the proceeding.

(c) Direct the parties to exchange their evidentiary exhibits, witness lists, and a narrative summary of their expected testimony prior to the hearing. Where good cause exists, the parties should be afforded the right at any time to amend, by deletion or supplementation, their evidentiary exhibit and witness lists.

(d) Rule on motions, and other procedural items on matters pending before him.

(e) Regulate the course of the hearing and conduct of counsel therein.

(f) Establish rules for media coverage of the proceedings.

(g) Examine witnesses.

(h) Receive, rule on, exclude, or limit evidence at any stage of the proceeding. (i) Fix time limits for submission of written documents in matters before him. (j) Take any action authorized by these rules.

Hearing Procedures

§ 82.22 EVIDENTIARY PURPOSE

The hearing is directed to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. A hearing for the reception of evidence will be held only in case issues of fact must be resolved in order to determine whether respondent has failed to comply with one or more appli

cable requirements of Executive Order 11246, and rules, regulations, and orders thereunder. In case it appears from respondent's answer to the notice of hearing, from his failure timely to answer, or from his admissions or stipulations, that there are no matters of material fact in dispute, the hearing officer or the reviewing authority may enter an order so finding, vacating the hearing date, and fixing the time for filing briefs under § 82.35. Thereafter the proceedings shall go to conclusion in accordance with 88 82.35 through 82.43. Within 10 days of its issuance, an order vacating the hearing date may be appealed to the reviewing authority, and the reviewing authority shall affirm, modify, or set aside such order within 28 days thereafter.

[38 FR 998, Jan. 8, 1973]

§ 82.23 EVIDENCE

Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded from the record of a hearing. Hearsay evidence shall not be inadmissible as such.

$82.24 TESTIMONY

Testimony shall be given orally by witnesses at the hearing, but may, in the discretion of the hearing officer, be prepared in writing and served on all parties to the hearing. A witness shall be available for cross-examination, and, at the discretion of the hearing officer, may be cross-examined without regard to the scope of direct examination as to any matter which is material to the proceeding.

§ 82.25 EXHIBITS

Proposed exhibits shall be exchanged at a prehearing conference, or otherwise prior to the hearing, if the hearing officer so requires. Proposed exhibits not so exchanged may be denied admission as evidence. The authenticity of all proposed exhibits will be deemed admitted unless written objection thereto is filed, or unless good cause is shown for failure to file such written objection.

§ 82.26 ADMISSIONS AS TO FACTS AND DOCUMENTS

Not later than 15 days prior to the date of the hearing except for good cause shown, or not later than 15 days prior to such earlier date as the hearing officer may order, any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant documents described in, and exhibited with, the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the matters as to which an admission is requested shall be deemed admitted, unless within a period designated in the request (not less than 10 days after service thereof) the party to whom the request is directed serves upon the requesting party a sworn statement either (a) denying specifically the matters as to which an admission is requested, or (b) setting forth in detail the reasons why he cannot truthfully either admit or deny such matters.

§ 82.27 OBJECTIONS

Objections to evidence shall be timely, and shall briefly state the ground relied upon.

$82.28 EXCEPTIONS TO RULINGS OF HEARING OFFICER NOT NECESSARY Exceptions to rulings of the hearing officer are unnecessary. It is sufficient that a party, at the time the ruling of the hearing officer is sought, makes know the action which he desires the hearing officer to take, or his objection to an action taken, and the grounds therefor.

§ 82.29 OFFICIAL NOTICE

Whenever a party offers a public document, or part thereof, in evidence, and such document, or part thereof, has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice as a public document item by specifying the document or relevant part thereof. Official notice may also be taken of other matters, at the discretion of the hearing officer; provided that where official notice is taken or requested to be taken of a fact not appearing in the evidence of record, any party, on timely request, shall be permitted to show the contrary.

$82.30 OFFER OF PROOF

An offer of proof made in connection with an objection taken to any ruling of the hearing officer excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in written form or consists of reference to documents, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof,

§ 82.31 INTERLOCUTORY APPEALS

Except as specifically provided in these rules, appeals shall not be made of any ruling of the hearing officer except following the entire hearing and the hearing officer's recommended findings, conclusions, and decision.

§ 82.32 EX PARTE COMMUNICATIONS

The hearing officer shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate. No employee or agent of the Federal Government engaged in the investigation and prosecution of this case shall participate or advise in the rendering of the recommended or final decision, except as witness or counsel in the proceeding.

The Record

82.33 OFFICIAL TRANSCRIPT

The Department will designate the official reporter for all hearings. The official transcripts of testimony and argument, together with any exhibits, briefs, or memoranda of law filed therewith, shall be filed with the hearing clerk. Transcripts may be obtained from the official reporter by the parties and the public at rates not to exceed the applicable rates fixed by the contract between the Department and the reporter. Upon notice to all parties, the hearing officer may authorize such corrections to the transcript as are necessary to accurately reflect the testimony.

§ 82.34 RECORD FOR DECISION

The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, except the correspondence section of the docket, including rulings and the recommended findings, conclusions, and decision, shall constitute the record for decision.

Posthearing Procedures

$82.35 PROPOSED FINDINGS OF FACT AND CONCLUSIONS

Within 20 days after receipt of the transcript of the testimony, and such additional time as the hearing officer may allow, each party may file proposed findings of fact and conclusions of law, and a proposed order, together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs shall be filed and served on all parties and amici curiae. Reply briefs may be submitted within 10 days after receipt of the initial briefs and proposals, and shall be filed and served in like manner.

$82.36 RECOMMENDED DECISION OF HEARING OFFICER

Within 30 days after the time for filing reply briefs or, if the parties elect not to file briefs, within 30 days after the receipt of the hearing transcript, the hearing officer shall recommend findings of fact, conclusions of law, and a decision based on the record for decision. These recommendations shall be certified, together with the record for decision, to the reviewing authority for its decision. The recommended findings, conclusions, and decision of the hearing officer shall be served on all parties and amici curiae to the proceeding.

$82.37 REVIEWING AUTHORITY JURISDICTION

Following the issuance of the hearing officer's recommended decision, all motions and petitions in the matter should be addressed to the reviewing authority, which shall have the authority to act on them consistent with these regulations,

Executive Order 11246, and rules, regulations, and orders thereunder. Such jurisdiction shall continue until the Secretary is requested to review the reviewing authority's decision, the Secretary decides to review such decision on his own motion, or the decision becomes the decision of the Department, whichever comes first.

Within 20 days after receipt of the hearing officer's recommended decision, all parties to the proceeding shall have an opportunity to submit to the reviewing authority briefs in support of, or in exception to, the recommended findings, conclusions, and decision of the hearing officer. These briefs may be responded to by other parties, within 10 days of their receipt by such parties. Such briefs or exceptions and reply briefs shall be filed and served on all parties and amici curiae to the proceding.

§ 82.39 ORAL ARGUMENT BEFORE THE REVIEWING AUTHORITY

(a) The reviewing authority shall have discretion, at its own initiative and within the limits described in this section, to direct the parties to argue a case orally. Oral argument shall not be directed, or received, except as necessary to clarify the written arguments in briefs in support or exceptions, and replies to these documents (see § 82.38). The reviewing authority shall, within these limits, define the scope and subject matter of the scope and subject matter of oral argument in each case. Where the reviewing authority directs oral argument, it shall have the discretion to extend, up to 30 days, the time for rendering its decision under $82.40.

(b) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the hearing clerk at least 7 days before the argument.

Within 60 days after the time for filing of reply briefs to support briefs and exception briefs, or 90 days from the date of the hearing officers decision if no briefs are filed, the reviewing authority shall render its own decision. This decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the hearing officer and shall be based on the record for decision.

(a) Within 20 days of the date of the reviewing authority's decision, any party to the proceeding may request the Secretary to review that decision. Such review is not a matter of right, and may be granted by the Secretary only where he determines that the decision of the reviewing authority raises significant issues of law or public policy. The Secretary may grant or deny such request in whole or in part. The Secretary shall also have discretion to review any decision of the reviewing authority on 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 proceeding shall have 20 days, following notice of the Secretary's decision to review, within which to file briefs in exception to the decision of the reviewing authority, or briefs in support of the reviewing authority's decision. The Secretary shall thereafter render the Department's 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.

(b) After the Secretary has been requested to review a matter under paragraph (a) of this section, or has given notice of his intent to review a matter on his own motion, whichever comes first, all motions and petitions shall be addressed to him. He shall act on them consistent with these regulations, Executive Order 11246, and rules, regulations and orders thereunder. Such jurisdiction shall continue until the Secretary issues the decision of the Department.