41 C.F.R. PART 60–30—RULES OF PRACTICE FOR ADMINISTRATIVE PROCEEDINGS TO ENFORCE EQUAL OPPORTUNITY UNDER EXECUTIVE ORDER 11246
Title 41 - Public Contracts and Property Management
Authority: Executive Order 11246, as amended, 30 FR 12319, 32 FR 14303, as amended by E.O. 12086; 29 U.S.C. 793, as amended, and 38 U.S.C. 4212, as amended.
Source: 43 FR 49259, Oct. 20, 1978, unless otherwise noted.
This part provides the rules of practice for all administrative proceedings, instituted by the OFCCP including but not limited to proceedings instituted against construction contractors or subcontractors, which relate to the enforcement of equal opportunity under Executive Order 11246, as amended. In the absence of a specific provision, procedures shall be in accordance with the Federal Rules of Civil Procedure. Upon notice to all parties, the Administrative Law Judge may, with respect to matters pending before him modify or waive any rule herein upon a determination that no party will be prejudiced and that the ends of justice will be served thereby. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] 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 by the Federal Government in which event it includes the next business day. (a) Form. The original of all pleadings and papers in a proceeding conducted under the regulations in this part shall be filed with the Administrative Law Judge assigned to the case or with the Chief Administrative Law Judge if the case has not been assigned. Every pleading and paper filed in the proceeding shall contain a caption setting forth the name of the agency instituting the proceeding, the title of the action, the case file number assigned by the Administrative Law Judge, and a designation of the pleading or paper (e.g., complaint, motion to dismiss, etc.). The pleading or papers shall be signed and shall contain the address and telephone number of the person representing the party or the person on whose behalf the pleading or paper was filed. Unless otherwise ordered for good cause by the Administrative Law Judge regarding specific papers and pleadings in a specific case, all such papers and pleadings are public documents. (b) Service. Service upon any party shall be made by the party filing the pleading or document by delivering a copy or mailing a copy to the party's last known address. When a party is represented by an attorney, the service shall by upon the attorney. (c) Proof of service. A certificate of the person serving the pleading or other document by personal delivery or by mailing, setting forth the manner of services shall be proof of the service. (a) Filing. The Solicitor of Labor, Associate Solicitor for Labor Relations and Civil Rights Regional Solicitors and Regional Attorney upon referral from the Office of Federal Contract Compliance Programs, are authorized to institute enforcement proceedings by filing a complaint and serving the complaint upon the contractor which shall be designated as the defendant. The Department of Labor, OFCCP, as shall be designated on plaintiff. (b) Contents. The complaint shall contain a concise jurisdictional statement, and a clear and concise statement sufficient to put the defendant on notice of the acts or practices it is alleged to have committed in violation of the order, the regulations, or its contractual obligations. The complaint shall also contain a prayer regarding the relief being sought, a statement of whatever sanctions the Government will seek to impose and the name and address of the attorney who will represent the Government. (c) Amendment. The complaint may be amended once as a matter of course before an answer is filed, and the defendant may amend its answer once as a matter of course not later than 10 days after the filing of the original answer. Other amendments of the complaint or of the answer to the complaint shall be made only by leave of the Administrative Law Judge or by written consent of the adverse party; and leave shall be freely given where justice so requires. An amended complaint shall be answered within 14 days of its service, or within the time for filing an answer to the original complaint, whichever period is longer. An amended answer shall be responded to within 14 days of its service. (E.O. 11246 as amended; sec. 503 of Rehabilitation Act of 1973 as amended.) [43 FR 49259, Oct. 20, 1978, as amended at 44 FR 49691, Aug. 24, 1979; 63 FR 59642, Nov. 4, 1998] (a) Filing and service. Within 20 days after the service of the complaint, the defendant shall file an answer with the Chief Administrative Law Judge if the case has not been assigned to an Administrative Law Judge. The answer shall be signed by the defendant or its attorney, and served on the Government in accordance with §60–30.4(b). (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 defendant is without knowledge, in which case the answer shall so state; or (2) state that the defendant admits all the allegations of the complaint. The answer may contain a waiver of hearing; and if not, a separate paragraph in the answer shall request a hearing. The answer shall contain the name and address of the defendant, or of the attorney representing the defendant. Failure to file an answer or to 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, the Administrative Law Judge, without further hearing, may 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. The Administrative Law Judge shall respond to defendant's request for a hearing within 15 days and shall serve a notice of prehearing conference on the parties. The notice shall contain the time and place of the conference. (a) Motions. Motions shall state the relief sought, the authority relied upon and the facts alleged, and shall be filed with the Administrative Law Judge. If made before or after the hearing itself, the motions shall be in writing. If made at the hearing, motions may be stated orally; but the Administrative Law Judge may require that they be reduced to writing and filed and served on all parties in the same manner as a formal motion. Unless otherwise ordered by the Administrative Law Judge, written motions shall be accompanied by a supporting memorandum. Within 10 days after a written motion is served, or such other time period as may be fixed, any party may file a response to a motion. (b) Disposition of motions. The Administrative Law Judge may not grant a written motion prior to expiration of the time for filing responses thereto, except upon consent of the parties or following a hearing, but may overrule or deny such motion without awaiting response: Provided, That prehearing conferences, hearings, and decisions need not be delayed pending disposition of motions. (a) Interrogatories. Not later than 25 days prior to the date of the hearing, except for good cause shown, or not later than 14 days prior to such earlier date as the Administrative Law Judge may order, any party may serve upon an opposing party written interrogatories. Each interrogatory shall be answered separately and fully in writing under oath, unless objected to. Answers are to be signed by the person making them and objections by the attorney or by whoever is representing the party. Answers and objections shall be filed and served within 25 days of service of the interrogatory. (b) Admissions. Not later than 14 days prior to the date of the hearing, except for good cause shown, or not later than 14 days prior to such earlier date as the Administrative Law Judge 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 25 days after service, the party to whom the request is directed serves upon the requesting party a sworn statement either (1) denying specifically the matter as to which an admission is requested, or (2) setting forth in detail the reasons why he cannot truthfully either admit or deny such matters. (c) Objections or failures to respond. The party submitting the interrogatory or request may move for an order with respect to any objection or other failure to respond. (a) After commencement of the action, any party may serve on any other party a request to produce and/or permit the party, or someone acting on his behalf, to inspect and copy any unprivileged documents, phonorecords, and other compilations, including computer tapes and printouts which contain or may lead to relevant information and which are in the possession, custody, or control of the party upon whom the request is served. If necessary, translation of data compilations shall be done by the party furnishing the information. (b) After commencement of the action, any party may serve on any other party a request to permit entry upon designated property which may be relevant to the issues in the proceeding and, which is in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying or photographing, testing, or sampling the property or any designated object or area. (c) Each request shall set forth with reasonable particularity the items to be inspected and shall specify a reasonable time and place for making the inspection and performing the related acts. (d) The party upon whom the request is served shall respond within 25 days after the service of the request. The response shall state, with respect to each item, that inspection and related activities will be permitted as requested, unless there are objections, in which case the reasons for each objection shall be stated. The party submitting the request may move for an order with respect to any objection or to other failure to respond. (a) Depositions; notice of examination. After commencement of the action, any party may take the testimony of any person, including a party, having personal or expert knowledge of the matters in issue, by deposition upon oral examination. A party desiring to take a deposition shall give reasonable notice in writing to every other party to the proceeding, and may use an administrative subpoena. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. The notice shall also set forth the categories of documents the witness is to bring with him to the deposition, if any. A copy of the notice shall be furnished to the person to be examined unless his name is unknown. (b) Production of witnesses; obligation of parties; objections. It shall be the obligation of each party to produce for examination any person, along with such documents as may be requested, at the time and place, and on the date, set forth in the notice, if that party has control over such person. Each party shall be deemed to have control over its officers, agents, employees, and members. Unless the parties agree otherwise, depositions shall be held within the county in which the witness resides or works. The party or prospective witness may file with the Administrative Law Judge an objection within 5 days after notice of production of such witness is served, stating with particularity the reasons why the party cannot or ought not to produce a requested witness. The party serving the notice may move for an order with respect to such objection or failure to produce a witness. All errors or irregularities in compliance with the provisions of this section shall be deemed waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is or, with due diligence, might have been ascertained. (c) Before whom taken; scope of examination; failure to answer. Depositions may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the deposition is held. At the time and place specified in the notice, each party shall be permitted to examine and cross-examine the witness under oath upon any matter which is relevant to the subject matter of the proceeding, or which is reasonably calculated to lead to the production of relevant and otherwise admissible evidence. All objections to questions, except as to the form thereof, and all objections to evidence are reserved until the hearing. A refusal or failure on the part of any person under the control of a party to answer a question shall operate to create a presumption that the answer, if given, would be unfavorable to the controlling party, unless the question is subsequently ruled improper by the Administrative Law Judge or the Administrative Law Judge rules that there was valid justification for the witness' failure or refusal to answer the question: Provided, That the examining party shall note on the record during the deposition the question which the deponent has failed, or refused to answer, and state his intention to invoke the presumption if no answer is forthcoming. (d) Subscription; certification; filing. The testimony shall be reduced to typewriting, either by the officer taking the deposition or under his direction, and shall be submitted to the witness for examination and signing. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, such fact shall be noted in the certificate of the officer and the deposition may then be used as fully as though signed. The officer shall immediately deliver the original copy of the transcript, together with his certificate, in person or by mail to the Administrative Law Judge. Copies of the transcript and certificate shall be furnished to all persons desiring them, upon payment of reasonable charges, unless distribution is restricted by order of the Administrative Law Judge for good cause shown. (e) Rulings on admissibility; use of deposition. Subject to the provisions of this section, objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. Any part or all of a deposition, so far as admissible in the discretion of the Administrative Law Judge, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice, in accordance with the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. (2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or was designated to testify on behalf of a public or private corporation, partnership, association, or governmental agency which is a party may be used by the adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the administrative law judge finds: (i) That the witness is dead; or (ii) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (iii) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (iv) upon application and notice, that such exceptional circumstances exist as to make it desirable to allow the deposition to be used. (4) If only part of a deposition is introduced in evidence by a party, any party may introduce any other parts by way of rebuttal and otherwise. (f) Stipulations. If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used like other depositions. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] (a) Upon his own motion or the motion of the parties, the Administrative Law Judge 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 number of witnesses; (5) Scheduling dates for the exchange of witness lists and of proposed exhibits; (6) Such other matters as may tend to expedite the disposition of the proceedings. (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. (a) General. At any time after the issuance of a complaint and prior to or during the reception of evidence in any proceeding, the parties may jointly 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 Administrative Law Judge after consideration of the nature of the proceeding, the requirments 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) That any further procedural steps are waived; and (4) That any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement is waived. (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 Administrative Law Judge for his consideration; (2) Inform the Administrative Law Judge that agreement cannot be reached. (d) Disposition. In the event an agreement containing consent findings and an order is submitted within the time allowed, the Administrative Law Judge, within 30 days, shall accept such agreement by issuing his decision based upon the agreed findings, and his decision shall consititute the final Administrative order. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] Hearings shall be held before an Administrative Law Judge of the Department of Labor who shall be designated by the Chief Administrative Law Judge of the Department of Labor. After commencement of the proceeding but prior to the designation of an Administrative Law Judge, pleadings and papers shall be filed with the Chief Administrative Law Judge. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] The Administrative Law Judge shall propose findings and conclusions to the Secretary on the basis of the record. In order to do so, he shall have the duty to conduct a fair hearing, to take all necesssary 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 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 by consent of the parties or upon his own motion; (b) Require parties to state their position with respect to the various issues in the proceeding; (c) Require parties to produce for examination those relevant witnesses and documents under their control; and require parties to answer interrogatories and requests for admissions in full; (d) Administer oaths; (e) Rule on motions, and other procedural items or matters pending before him; (f) Regulate the course of the hearing and conduct of participants therein; (g) Examine and cross-examine witnesses, and introduce into the record documentary or other evidence; (h) Receive, rule on, exclude, or limit evidence and limit lines of questioning or testimony which are irrelevant, immaterial, or unduly repetitious; (i) Fix time limits for submission of written documents in matters before him and extend any time limits established by this part upon a determination that no party will be prejudiced and that the ends of justice will be served thereby; (j) Impose appropriate sanctions against any party or person failing to obey an order under these rules which may include: (1) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting it from introducing designated matters in evidence; (2) Excluding all testimony of an unresponsive or evasive witness, or determining that the answer of such witness, if given, would be unfavorable to the party having control over him; and (3) Expelling any party or person from further participation in the hearing; (k) Take official notice of any material fact not appearing in evidence in the record, which is among the traditional matters of judicial notice; (l) Recommend whether the respondent is in current violation of the order, regulations, or its contractual obligations, as well as the nature of the relief necessary to insure the full enjoyment of the rights secured by the order; (m) Issue subpoenas; and (n) Take any action authorized by these rules. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] (a) Representation. The parties or other persons or organizations participating pursuant to this part 60–30 have the right to be represented by counsel. (b) Failure to appear. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election to present his evidence in whole or such portion thereof sufficient to make a prima facie case before the Administrative Law Judge. Failure to appear at the hearing shall not be deemed to be a waiver of the right to be served with a copy of the Administrative Law Judge's recommended decision and to file exceptions to it. (a) A party wishing to procure the appearance at the hearing of any person having personal or expert knowledge of the matters in issue shall serve on the prospective witness a notice, which may be accomplished by an administrative subpoena, setting forth the time, date, and place at which he is to appear for the purpose of giving testimony. The notice shall also set forth the categories of documents the witness is to bring with him to the hearing, if any. A copy of the notice shall be filed with the Administrative Law Judge and additional copies shall be served upon the opposing parties. (b) It shall be the obligation of each party to produce for examination any person, along with such documents as may be requested, at the time and place, and on the date, set forth in the notice, if that party has control over such person. Each party shall be deemed to have control over its officers, agents, employees, and members. Due regard shall be given to the convenience of witnesses in scheduling their testimony so that they will be detained no longer than reasonably necessary. (c) The party or prospective witness may file an objection within 5 days after notice of production of such witness is served stating with particularity the reasons why the party cannot produce a requested witness. The party serving the notice may move for an order with respect to such objection or failure to produce a witness. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] In any hearing, decision, or administrative review conducted pursuant to this part, all evidentiary matters shall be governed by Office of Administrative Law Judges' Rules of evidence at 29 CFR part 18, subpart B, Provided however, That the provision at 29 CFR 18.1104 which delays the effective date of the rule with respect to certain investigations does not apply. [55 FR 19069, May 8, 1990] (a) 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 on the record may be relied upon subsequently in the proceedings. (b) Exceptions. Formal exception to an adverse ruling is not required. Rulings by the Administrative Law Judge shall not be appealed prior to the transfer of the case to the Secretary, but shall be considered by the Secretary upon filing exceptions to the Administrative Law Judge's recommendations and conclusions. (c) Offer of proof. An offer of proof made in connection with an objection taken to any ruling 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. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] The Administrative Law Judge 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 in the case, except as witness or counsel in the proceeding. Any party shall be entitled upon request to a reasonable period between the close of evidence and termination of the hearing for oral argument. Oral arguments shall be included in the official transcript of the hearing. The official transcripts of testimony taken, together with any exhibits, briefs, or memorandums of law, shall be filed with the Administrative Law Judge. Transcripts of testimony may be obtained from the official reporter by the parties and the public as provided in section 11(a) of the Federal Advisory Committee Act (86 Stat. 770). Upon notice to all parties, the Administrative Law Judge may authorize such corrections to the transcript as are necessary to reflect accurately the testimony. (a) For the Government. At any time after the expiration of 20 days from the commencement of the action, or after service of a motion for summary judgment by the respondent, the Government may move with or without supporting affidavits for a summary judgment upon all claims or any part. (b) For defendant. The defendant may, at any time after commencement of the action, move with or without supporting affidavits for summary judgment in its favor as to all claims or any part. (c) Other parties. Any other party to a formal proceeding under this part may support or oppose motions for summary judgment made by the Government or respondent, in accordance with this section, but may not move for a summary judgment in his own behalf. (d) Statement of uncontested facts. All motions for summary judgment shall be accompanied by a “Statement of Uncontested Facts” in which the moving party sets forth all alleged uncontested material facts which shall provide the basis for its motion. At least 5 days prior to the time fixed for hearing on the motion, any party contending that any material fact regarding the matter covered by the motion is in dispute, shall file a “Statement of Disputed Facts.” Failure to file a “Statement of Disputed Facts” shall be deemed as an admission to the “Statement of Uncontested Facts.” (e) Motion and proceedings. The motion shall be served upon all parties at least 15 days before the time fixed for the hearing on the motion. The adverse party or parties may serve opposing affidavits prior to the day of hearing. The judgment sought shall be rendered forthwith if the complaint and answer, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Summary judgment rendered for or against the Government or the respondent shall constitute the findings and recommendations on the issues involved. Hearings on motions made under this section shall be scheduled by the Administrative Law Judge. (f) Case not fully adjudicated on motion. If on motion under this section judgment is not rendered upon the whole case or for all the relief asked and a final hearing is necessary, the Administrative Law Judge at the hearing of the motion, by examining the notice and answer and the evidence before him and by interrogating counsel, shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. He shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which relief is not in controversy, and directing such further proceedings as are just. At the hearing on the merits, the facts so specified shall be deemed established, and the final hearing shall be conducted accordingly. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] (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 Administrative order could adversely affect them or the class they represent, and such participation may contribute materially to the proper disposition of the proceedings. (3) Any person or organization wishing to participate as a party under this section shall file with the Administrative Law Judge and serve on all parties a petition within 25 days after the commencement of the action or at such other time as ordered by the Administrative Law Judge, so long as it does not disrupt the proceeding. Such petition shall concisely state: (i) Petitioner's interest in the proceedings; (ii) who will appear for petitioner; (iii) the issues on which petitioner wishes to participate; and (iv) whether petitioner intends to present witnesses. (4) The Administrative Law Judge shall determine whether each petitioner has the requisite interest in the proceedings and shall permit or deny participation accordingly. Where petitions to participate as parties are made by individuals or groups with common interest, the Administrative Law Judge may request all such petitioners to designate a single representative to represent all such petitioners: Provided, That the representative of a labor organization qualifying to participate under paragraph (a)(1) of the section must be permitted to participate in the proceedings. The Administrative Law Judge shall give each petitioner written notice of the decision on his petition; and 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. The Administrative Law Judge shall give written notice to each party of each petition granted. (b)(1) Any other interested person or organization wishing to participate as amicus curiae shall file a petition before the commencement of the final hearing with the Administrative Law Judge. 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 Administrative Law Judge may grant the petition if he finds that the petitioner has a legitimate interest in the proceedings, and that such participation may contribute materially to the proper disposition of the issues. An amicus curiae is not a party but may participate as provided in this section. (2) An amicus curiae may present a brief oral statement at the hearing at the point in the proceeding specified by the Administrative Law Judge. He may submit a written statement of position to the Administrative Law Judge prior to the beginning of a hearing and shall serve a copy on each party. He may also submit a brief or written statement at such time as the parties submit briefs and exceptions, and he shall serve a copy on each party. [43 FR 49259, Oct. 20, 1978; 43 FR 51401, Nov. 3, 1978] Within 20 days after receipt of the transcript of the testimony, each party and amicus may file a brief. Such briefs shall be served simultaneously on all parties and amici, and a certificate of service shall be furnished to the Administrative Law Judge. Requests for additional time in which to file a brief shall be made in writing, and copies shall be served simultaneously on the other parties. Requests for extensions shall be received not later than 3 days before the date such briefs are due. No reply brief may be filed except by special permission of the Administrative Law Judge. The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, including briefs, but excepting the correspondence section of the docket, shall constitute the record for decision. Within a reasonable time after the filing of briefs, the Administrative Law Judge shall recommend findings, conclusions, and a decision. These recommendations shall be certified, together with the record for recommended decision, to the Administrative Review Board, United States Department of Labor, for a final Administrative order. The recommended findings, conclusions, and decision shall be served on all parties and amici to the proceeding. [61 FR 19988, May 3, 1996] Within 14 days after receipt of the recommended findings, conclusions, and decision, any party may submit exceptions to said recommendation. These exceptions may be responded to by other parties within 14 days of their receipt by said parties. All exceptions and responses shall be filed with the Administrative Review Board, United States Department of Labor. Service of such briefs or exceptions and responses shall be made simultaneously on all parties to the proceeding. Requests to the Administrative Review Board, United States Department of Labor, for additional time in which to file exceptions and responses shall be in writing and copies shall be served simultaneously on other parties. Requests for extensions must be received no later than 3 days before the exceptions are due. [61 FR 19988, May 3, 1996] After expiration of the time for filing briefs and exceptions, the Administrative Review Board, United States Department of Labor, shall make a final decision, which shall be the final Administrative order, on the basis of the record. The record shall consist of the record for recommended decision, the rulings and recommended decision of the Administrative Law Judge and the exceptions and briefs filed subsequent to the Administrative Law Judge's decision. [61 FR 19988, May 3, 1996] After expiration of the time for filing, the Administrative Review Board, United States Department of Labor, shall make a final Administrative order which shall be served on all parties. If the Administrative Review Board, United States Department of Labor, concludes that the defendant has violated the Executive Order, the equal opportunity clause, or the regulations, an Administrative order shall be issued enjoining the violations, and requiring the contractor to provide whatever remedies are appropriate, and imposing whatever sanctions are appropriate, or any of the above. In any event, failure to comply with the Administrative order shall result in the immediate cancellation, termination and suspension of the respondent's contracts and/or debarment of the respondent from further contracts. [61 FR 19988, May 3, 1996] Authority: Sections 60–30.31 to 60–30.37 issued under E.O. 11246 (30 FR 12319) as amended by E.O. 11375 and 12086.
Source: Sections 60–30.31 through 60–30.37 appear at 44 FR 77003, Dec. 28, 1979, unless otherwise noted.
Expedited Hearings may be used, inter alia, when a contractor or subcontractor has violated a conciliation agreement; has not adopted and implemented an acceptable affirmative action program; has refused to give access to or to supply records or other information as required by the equal opportunity clause; or has refused to allow an on-site compliance review to be conducted. (a) Expedited hearings shall be commenced by filing an administrative complaint in accordance with 41 CFR 60–30.5. The complaint shall state that the hearing is subject to these expedited hearing procedures. (b) The answer shall be filed in accordance with 41 CFR 60–30.6 (a) and (b). (c) Failure to request a hearing within the 20 days provided by 41 CFR 60–30.6(a) shall constitute a waiver of hearing, and all the material allegations of fact contained in the complaint shall be deemed to be admitted. If a hearing is not requested or is waived, within 25 days of the complaint's filing, the Administrative Law Judge shall adopt as findings of fact the material facts alleged in the complaint, and shall order the appropriate sanctions and/or penalties sought in the complaint. The Administrative Law Judge's findings and order shall constitute a final Administrative order, unless the Office of the Solicitor, U.S. Department of Labor, files exceptions to the findings and order within 10 days of receipt thereof. If the Office of the Solicitor, U.S. Department of Labor, files exceptions, the matter shall proceed in accordance with §60–30.36 of this part. (d) If a request for a hearing is received within 20 days as provided by 41 CFR 60–30.6(a), the hearing shall be convened within 45 days of receipt of the request and shall be completed within 15 days thereafter, unless more hearing time is required. (a) Any party may serve requests for admissions in accordance with §60–30.9 (b) and (c). (b) Witness lists and hearing exhibits will be exchanged at least 10 days in advance of the hearing. (c) For good cause shown, and upon motion made in accordance with §60–30.8, the Administrative Law Judge may allow the taking of depositions. Other discovery will not be permitted. (a) At the hearing, the Government shall be given an opportunity to demonstrate the basis for the request for sanctions and/or remedies, and the contractor shall be given an opportunity to show that the violation complained of did not occur and/or that good cause or good faith efforts excuse the alleged violations. Both parties shall be allowed to present evidence and argument and to cross-examine witnesses. (b) The hearing shall be informal in nature, and the Administrative Law Judge shall not be bound by formal rules of evidence. Within 15 days after the hearing is concluded, the Administrative Law Judge shall recommend findings, conclusions, and a decision. The Administrative Law Judge may permit the parties to file written post-hearing briefs within this time period, but the Administrative Law Judge's recommendations shall not be delayed pending receipt of such briefs. These recommendations shall be certified, together with the record, to the Administrative Review Board, United States Department of Labor, for a final Administrative order. The recommended decision shall be served on all parties and amici to the proceeding. [61 FR 19989, May 3, 1996] Within 10 days after receipt of the recommended findings, conclusions and decision, any party may submit exceptions to said recommendations. Exceptions may be responded to by other parties within 7 days after receipt by said parties of the exceptions. All exceptions and responses shall be filed with the Administrative Review Board, United States Department of Labor. Briefs or exceptions and responses shall be served simultaneously on all parties to the proceeding. [61 FR 19989, May 3, 1996] After expiration of the time for filing exceptions, the Administrative Review Board, United States Department of Labor, shall issue a final Administrative order which shall be served on all parties. Unless the Administrative Review Board, United States Department of Labor, issues a final Administrative order within 30 days after the expiration of the time for filing exceptions, the Administrative Law Judge's recommended decision shall become a final Administrative order which shall become effective on the 31st day after expiration of the time for filing exceptions. Except as to specific time periods required in this subsection, 41 CFR 60–30.30 shall be applicable to this subsection. [61 FR 19989, May 3, 1996]
Title 41: Public Contracts and Property Management
PART 60–30—RULES OF PRACTICE FOR ADMINISTRATIVE PROCEEDINGS TO ENFORCE EQUAL OPPORTUNITY UNDER EXECUTIVE ORDER 11246
Section Contents
General Provisions
§ 60-30.1 Applicability of rules.
§ 60-30.2 Waiver, modification.
§ 60-30.3 Computation of time.
§ 60-30.4 Form, filing, service of pleadings and papers.
Prehearing Procedures
§ 60-30.5 Administrative complaint.
§ 60-30.6 Answer.
§ 60-30.7 Notice of prehearing conference.
§ 60-30.8 Motions; disposition of motions.
§ 60-30.9 Interrogatories, and admissions as to facts and documents.
§ 60-30.10 Production of documents and things and entry upon land for inspection and other purposes.
§ 60-30.11 Depositions upon oral examination.
§ 60-30.12 Prehearing conferences.
§ 60-30.13 Consent findings and order.
Hearings and Related Matters
§ 60-30.14 Designation of Administrative Law Judges.
§ 60-30.15 Authority and responsibilities of Administrative Law Judges.
§ 60-30.16 Appearances.
§ 60-30.17 Appearance of witnesses.
§ 60-30.18 Rules of evidence.
§ 60-30.19 Objections; exceptions; offer of proof.
§ 60-30.20 Ex parte communications.
§ 60-30.21 Oral argument.
§ 60-30.22 Official transcript.
§ 60-30.23 Summary judgment.
§ 60-30.24 Participation by interested persons.
Post-Hearing Procedures
§ 60-30.25 Proposed findings of fact and conclusions of law.
§ 60-30.26 Record for recommended decision.
§ 60-30.27 Recommended decision.
§ 60-30.28 Exceptions to recommended decisions.
§ 60-30.29 Record.
§ 60-30.30 Final Administrative Order.
Expedited Hearing Procedures
§ 60-30.31 Expedited hearings—when appropriate.
§ 60-30.32 Administrative complaint and answer.
§ 60-30.33 Discovery.
§ 60-30.34 Conduct of hearing.
§ 60-30.35 Recommended decision after hearing.
§ 60-30.36 Exceptions to recommendations.
§ 60-30.37 Final Administrative order.
General Provisions
top
§ 60-30.1 Applicability of rules.
top
§ 60-30.2 Waiver, modification.
top
§ 60-30.3 Computation of time.
top
§ 60-30.4 Form, filing, service of pleadings and papers.
top
Prehearing Procedures
top
§ 60-30.5 Administrative complaint.
top
§ 60-30.6 Answer.
top
§ 60-30.7 Notice of prehearing conference.
top
§ 60-30.8 Motions; disposition of motions.
top
§ 60-30.9 Interrogatories, and admissions as to facts and documents.
top
§ 60-30.10 Production of documents and things and entry upon land for inspection and other purposes.
top
§ 60-30.11 Depositions upon oral examination.
top
§ 60-30.12 Prehearing conferences.
top
§ 60-30.13 Consent findings and order.
top
Hearings and Related Matters
top
§ 60-30.14 Designation of Administrative Law Judges.
top
§ 60-30.15 Authority and responsibilities of Administrative Law Judges.
top
§ 60-30.16 Appearances.
top
§ 60-30.17 Appearance of witnesses.
top
§ 60-30.18 Rules of evidence.
top
§ 60-30.19 Objections; exceptions; offer of proof.
top
§ 60-30.20 Ex parte communications.
top
§ 60-30.21 Oral argument.
top
§ 60-30.22 Official transcript.
top
§ 60-30.23 Summary judgment.
top
§ 60-30.24 Participation by interested persons.
top
Post-Hearing Procedures
top
§ 60-30.25 Proposed findings of fact and conclusions of law.
top
§ 60-30.26 Record for recommended decision.
top
§ 60-30.27 Recommended decision.
top
§ 60-30.28 Exceptions to recommended decisions.
top
§ 60-30.29 Record.
top
§ 60-30.30 Final Administrative Order.
top
Expedited Hearing Procedures
top
§ 60-30.31 Expedited hearings—when appropriate.
top
§ 60-30.32 Administrative complaint and answer.
top
§ 60-30.33 Discovery.
top
§ 60-30.34 Conduct of hearing.
top
§ 60-30.35 Recommended decision after hearing.
top
§ 60-30.36 Exceptions to recommendations.
top
§ 60-30.37 Final Administrative order.
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