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put the witness on oath and shall per of the evidence if the witness were then sonally record the testimony of the present and testifying. witness.

$ 14.24 Interrogatories to parties. (d) If during the taking of a deposition there is bad faith in the conduct of (a) Any party may serve upon any the examination, annoyance, embar other party written interrogatories after rassment, oppression of a deponent or the notice of hearing has been filed. If party or improper questions propounded, the party served is a corporation, parta party or deponent may request sus nership, association, or governmental pension of the deposition. The deposition agency, an agent shall furnish such inwill then be adjourned. However, the formation as is available to the party. objecting party or deponent must imme (b) Each interrogatory shall be andiately move the hearing examiner for swered separately and fully in writing a ruling on the suspension. The hearing under oath, unless it is objected to, in examiner may then limit the scope and/ which event the objection shall be stated or manner of the taking of the deposi in lieu of an answer. The answers are tion.

to be signed by the person making them, (e) The officer shall certify the depo and the objections signed by the attorsition and promptly file it with the hear ney or other representative making them. ing clerk. Documents or true copies of Answers and objections shall be made documents and other items produced for within 30 days after the service of the inspection during the examination of the

interrogatories. The party submitting witness, shall, upon the request of a the interrogatories may move for an party, be marked for identification and order under section 14.26 with respect annexed to the deposition.

to any objection to or other failure to (f) The party taking the deposition answer an interrogatory. shall give prompt notice of its filing to (c) Interrogatories shall relate to any all other parties.

matter not privileged which is relevant

to the subject matter of the hearing. § 14.23 Use of depositions at hearing.

$ 14.25 Production of documents and (a) Any part or all of a deposition, so

things and entry upon land for infar as admissible under $ 14.31 applied spection and other purposes. as though the witness were then present and testifying, may be used against any

(a) After the notice of hearing has party who was present or represented

been filed, any party may serve on any at the taking of the deposition or who other party a request to produce and/or had reasonable notice thereof as follows: permit the party, or someone acting on (1) Any deposition may be used for

his behalf, to inspect and copy any desigcontradiction or impeachment of the de

nated documents, phonorecords, and ponent as a witness.

other data compilations from which in(2) The deposition of a party, or of an

formation can be obtained and which agent designated to testify on behalf of

are in the possession, custody or control a party, may be used by an adverse party

of the party upon whom the request is for any purpose.

served. If necessary, translation of data (3) The deposition of any witness may

compilations shall be done by the party be used if the party offering the deposi

furnishing the information. tion has been unable to procure his

(b) After the notice of hearing has attendance or if he is unable to testify by

been filed, any party may serve on any reason of age; illness; infirmity; impris

other party a request to permit entry onment; death, his residence outside the

upon designated property in the posState or if he is out of the country, un

session or control of the party upon less his absence was procured by the

whom the request is served for the purparty offering his deposition.

pose of inspection, measuring, surveying (b) If only part of a deposition is or photographing, testing, or sampling offered in evidence, the remainder be the property or any designated object. comes subject to introduction by any (c) Each request shall set forth with party.

reasonable particularity the items to be (c) Objection may be made at the inspected and shall specify a reasonable hearing to receiving in evidence any time, place, and manner of making the deposition or part thereof for any rea inspection and performing the related son which would require the exclusion acts.

an

(d) The party upon whom the request is served shall respond within 15 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 under $ 14.26 with respect to any objection to or other failure to respond. $ 14.26 Sanctions.

(a) A party, upon reasonable notice to other parties and all persons affected thereby, may move for an order as follows:

(1) If a deponent fails to answer a question propounded or submitted under § 14.22(c), or a corporation or other entity fails to make a designation under $ 14.22(b) (3), or a party fails to answer

interrogratory submitted under $ 14.24, or if a party, under § 14.25, fails to respond that inspection will be permitted or fails to permit inspection, the discovering party may move for an order compelling an answer, a designation, or inspection.

(2) An evasive or incomplete answer is to be treated as a failure to answer.

(b) If a party or an agent designated to testify fails to obey an order to permit discovery, the hearing examiner may make such orders as are just, including:

(1) That the matters regarding which the order was made or any other designated facts shall be established in accordance with the claim of the party obtaining the order;

(2) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.

(c) If a party or an agent designated to testify fails after proper service (1) to appear for his deposition, (2) to serve answers of objections to interrogatories submitted under $ 14.24, or (3) to serve a written response to a request for inspection submitted under $ 14.25, the hearing examiner on motion may make such orders as are just, including those authorized under subparagraphs (1) and (2) of paragraph (b) of this section. $ 14.27 Ex parte communications.

(a) Written or oral communications involving any substantive or procedural issue in a matter subject to these pro

ceedings, directed to the hearing examiner or the Secretary, shall be deemed ex parte communications and are not to be considered part of any record or the basis for any official decision by the hearing examiner or Secretary, unless the communication is made by motion pursuant to these rules. Any such communication in writing received by the hearing examiner or Secretary shall be made public by placing it in the correspondence file of the docket which is available for public inspection. If the ex parte communication is received orally, a memorandum setting forth the substance of the conversation shall be made and filed in the correspondence section of the docket. In either case, notice of such communication will be given to the parties.

(b) The hearing examiner shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate, or be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigation or prosecuting functions related to the case.

(c) 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.

PREHEARING § 14.28 Prehearing conferences.

(a) Within 15 days after the Answer has been filed the hearing examiner will establish a prehearing conference date for all parties including persons or organizations whose petition requesting party status has not been ruled upon. Written notice of the prehearing conference shall be sent by the hearing examiner.

(b) At the prehearing conference the following matters, among others shall be considered: (1) Simplification and delineation of the issues to be heard; (2) stipulations; (3) limitation of number of witnesses; and exchange of witness lists; (4) procedure applicable to the proceeding; (5) offers of settlement; and (6) scheduling of the dates for exchange of exhibits. Additional prehearing conferences may be scheduled on the motion of the hearing examiner or on the motion of any party to the hearing.

HEARING § 14.29 Appearances.

The parties may appear in person, by counsel, or other representatives. 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 hearing examiner. Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the hearing examiner's proposed decision and to file exceptions to it. § 14.30 Purpose.

(a) The hearing is directed primarily to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. A hearing will be held in order to determine whether Respondent has failed to comply with one or more applicable requirements of Executive Order 11246. as amended, and rules, regulations, and orders thereunder. However, this shall not prevent the parties from entering into a stipulation of the facts.

(b) If all facts are stipulated, the proceedings shall go to conclusion in accordance with $ $ 14.38 to 14.44. (36 F.R. 5906, Mar. 31, 1971, as amended at 36 F.R. 7218, Apr. 16, 1971) § 14.31 Evidence.

Formal rules of evidence will not apply to the proceeding. Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded from the record of a hearing. Hearsay evidence shall not be inadmissible as such. § 14.32

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 examiner. § 14.33 Testimony.

Testimony shall be given under oath by witnesses at the hearing. A witness

shall be available for cross-examination, and, at the discretion of the hearing examiner, may be cross-examined without regard to the scope of direct examination as to any matter which is material to the proceeding. § 14.34 Objections.

Obje ns to evidence shall be timely, and the party making them shall briefly state the ground relied upon. $ 14.35 Exceptions.

Exceptions to rulings of the hearing examiner are unnecessary. It is sufficient that a party, at the time the ruling of the hearing examiner is sought, makes known the action which he desires the hearing examiner to take, or his objection to an action taken, and his ground therefor. § 14.36 Offer of proof.

An offer of proof made in connection with an objection taken to any ruling of the hearing examiner excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony. 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. § 14.37

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

POSTHEARING PROCEDURES § 14.38 Proposed findings of fact and

conclusions of law. Within 30 days after the close of the hearing each party may file, or the hearing examiner may request proposed findings of fact and conclusions of law together with supporting briefs. Such proposals and briefs shall be served on

all parties and amici. Reply briefs may be submitted within 15 days after receipt of the initial proposals and briefs. Reply briefs should be filed and served on all parties and amici. § 14.39 Oral argument.

Within the time period for filing initial proposals and briefs, any party may move for oral argument. It is within the hearing examiner's discretion to grant the request. If the request is granted, the hearing examiner shall establish a time and place for oral argument following the filing of the briefs. § 14.40 Record for decision.

The hearing examiner will make his findings, conclusions, and proposed decision upon the basis of the record before him. The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, except the correspondence section of the docket, shall constitute the record. § 14.41 Recommended determination.

The hearing examiner shall, in an expeditious manner, rule on proposed findings and conclusions submitted by the parties; and shall make recommended findings, conclusions, and decision. These rulings and recommendations shall be certified, together with the record for decision, to the Secretary, for his decision. The rulings, recommended findings, conclusions, and decision of the hearing examiner shall be served on all parties and amici curiae to the proceedings.

& 14.42 Exceptions to recommended de

termination. Within 30 days after receipt of the recommended decision, all parties to the proceeding may file with the hearing clerk a brief in support of or as an exception to the recommended findings, conclusions, and decision of the hearing examiner. Service of such briefs or exceptions shall be made on all parties and amici in the proceeding. Such briefs may be responded to within 15 days of their receipt by the other parties. Responses should be filed with the hearing clerk and served on all parties and amici to the proceeding. § 14.43 Record.

After ex ion of the time for filing briefs and exceptions, the Secretary shall make a final decision on the basis of the record before him. The record includes the record for decision, the rulings, the recommended findings, conclusions and decision of the hearing examiner, and the exceptions and briefs filed subsequent to the hearing examiner's decision. § 14.44 Final decision.

The Secretary may affirm, modify, or set aside in whole or in part, the recommended findings, conclusions, and decision of the hearing examiner. The decision of the Secretary shall not be final without the approval of the Director, Office of Federal Contract Compliance, Department of Labor.

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