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PREHEARING 14.28 Prehearing conferences.
HEARING 14.29 Appearances. 14.30 Purpose. 14.31 Evidence. 14.32 Official notice. 14.33 Testimony. 14.34 Objections. 14.35 Exceptions. 14.36 Offer of proof. 14.37 Official transcript.
POSTHEARING PROCEDURES 14.38 Proposed findings of fact and condu
sions of law. 14.39 Oral argument. 14.40 Record for decision. 14.41 Recommended determination. 14.42 Exceptions to recommended deter
mination. 14.43 Record. 14.44 Final decision,
AUTHORITY: The provisions of this Part 14 Issued under Executive Order 11246, 3 CFR 1965 Comp., as amended.
SOURCE: The provisions of this part 14 appear at 36 F.R. 5906, Mar. 31, 1971, unless otherwise noted.
GENERAL INFORMATION § 14.1 Authority.
These rules of procedure supplement, and are established pursuant to, the provisions of 41 CFR 60-1.26(b). § 14.2 Scope of rules.
These rules govern the practice and procedure for proceedings conducted, and decisions made, by the Department precedent to the imposition of sanctions under section 209(a) (1), (5), and (6) of Executive Order 11246, as amended, for violations of Executive Order 11246, as amended, and rules, regulations, and orders thereunder. [36 F.R. 5906, Mar. 31, 1971, as amended at 36 F.R. 7218, Apr. 16, 1971] $ 14.3 Definitions.
(a) "Department” means the "Department of Commerce".
(b) "Secretary" means "Secretary of Commerce".
(c) “Notice" means "Notice of Hearing”.
(d) “Party" means a respondent; the General Counsel, Maritime Administration; and any person or organization participating in a proceeding pursuant to 8 14.8.
(e) "Respondent” means a person or organization against whom sanctions are proposed because of alleged violations of Executive Order 11246, as amended, and rules, regulations, and orders thereunder.
(f) “General Counsel" means “General Counsel, Maritime Administration”.
(g) "Hearing clerk” means "Secretary, Maritime Administration”. (36 F.R. 5906, Mar. 31, 1971, as amended at 36 F.R. 7218, Apr. 16, 1971) § 14.4 Time 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 or event, 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. DESIGNATION AND RESPONSIBILITIES OF
HEARING EXAMINER & 14.5 Designation.
Hearings shall be held before a hearing examiner designated by the Secretary. In the case of the death, illness, disqualification, or unavailability of the designated hearing examiner, another hearing examiner may be designated in his place.
14.6 Authority and responsibilities.
(a) The hearing examiner 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:
(1) 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.
(2) Require parties to state their position with respect to the various issues in the proceeding.
(3) Establish rules for media coverage of the proceedings.
(4) Rule on motions, and other procedural items in matters before him.
(5) Regulate the course of the hearing, the conduct of counsel, parties, and other participants.
(6) Examine witnesses and direct witnesses to testify.
(7) Receive, rule on, exclude, or limit evidence.
(8) Fix time limits for submission of written documents in matters before him.
(9) Take any action authorized by these Rules.
(10) Upon notice to all parties, modify or waive any rule upon a determination that no party will be prejudiced and that the ends of justice will thereby be served.
(b) The hearing examiner shall recommend a decision on the basis of the record before him. Together with his recommended decision, he shall propose findings of fact and conclusions of law to the Secretary.
APPEARANCE AND PRACTICE § 14.7 Participation by a party.
A party may appear in person, by representative, or by counsel, and participate fully in any proceeding held pursuant to these Rules. § 14.8
Determination of parties. (a) The Respondent and the General Counsel, Maritime Administration are the initial parties to the proceeding. To the extent that proceedings hereunder are based in whole or in part on matters subject to a collective bargaining agreement, any labor organization which is a signatory to the agreement shall also have the right to participate as a party.
(b) 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, and if they may contribute materially to the disposition of the proceedings.
(c) Any person or organization wishing to participate as a party under this section shall submit a petition to the hearing examiner within 15 days after the notice has been filed. The petition should be filed with the hearing clerk and served on Respondent, on the General Counsel and on any other person or organization who has been made a party at the time of filing. Such petition shall concisely state: (1) Petitioner's interest in the proceeding, (2) how his participation as a party will contribute materially to the disposition of the proceeding, (3) who will appear for petitioner, (4) the issues on which petitioner wishes to participate, and (5) whether petitioner intends to present witnesses.
(d) The hearing examiner shall promptly ascertain whether there are objections to the petition. He shall then determine whether petitioners have the requisite interest to be a party in the proceedings, as defined in paragraphs (a) and (b) of this section, and shall permit or deny participation accordingly. Where petitions to participate as parties are made by individuals or groups with common interests, the hearing examiner 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 paragraph (a) of this section must be permitted to participate as a party. The hearing examiner shall give each such petitioner written notice of the decision on his petition. 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 hearing examiner shall give written notice to each party of each petition granted.
(e) Persons or organizations whose petition for party participation is denied may appeal the decision to the Secretary within 7 days of receipt of denial. The Secretary will make the final decision to grant or deny the petition. § 14.9 Determination and participation
of amici. (a) Any interested person or organization wishing to participate as amicus curiae in the proceeding shall file a petition before the commencement of the hearing. Such petition shall concisely state the petitioner's interest in the hearing and who will represent petitioner.
(b) The hearing examiner will grant the petition if he finds that the petitioner has an interest in the proceedings and may contribute materially to the disposition of the proceedings. The hearing examiner shall give the petitioner written notice of the decision on his petition. If the petition is denied, the hearing examiner shall briefly state the grounds for denial. The hearing examiner shall give written notice to each party of each petition granted.
(c) An amicus curiae is not a party but may only participate as provided in paragraph (d) of this section.
(d) An amicus curiae may submit a written statement of position to the hearing examiner at any time prior to
the beginning of a hearing, and shall
PROCEDURES serve a copy on each party. He may also
Notice of hearing. file a brief or written statement at such time as the parties submit proposed find
In response to Respondent's request ings and conclusions and supporting
for a hearing, the General Counsel shall briefs to the hearing examiner and at serve on the Respondent, pursuant to 41 such times as the parties file exceptions
CFR 60–1.26(b) (1), a notice of hearing to the decision of the hearing examiner.
by registered mail, return receipt re
quested, to Respondent's last known adFORM AND FILING OF DOCUMENTS
dress. Such notice shall contain the 8 14.10 Form.
time and place of the hearing; the legal
authority under which the proceedings Documents filed pursuant to a proceed
are to be held; and the matters pursuant ing herein shall show the docket de
to which sanctions or other actions are scription and title of the proceeding, the
proposed. party or amicus submitting the document, the date signed, and the title, if 8 14.14 Answer to notice. any, and address of the signatory. The
Within 15 days after receipt of the original will be signed in ink by the per
notice of hearing, Respondent may file an son representing the party or amicus.
answer. This answer shall admit or Copies need not be signed, but the name
deny specifically and in detail matters of the person signing the original shall
set forth in each allegation of the notice be reproduced.
unless Respondent is without knowledge, § 14.11 Filing and service.
in which case his answer should so state,
and the statement shall be deemed a de(a) All documents submitted in a
nial. Matters not specifically denied shall proceeding shall be served on all parties.
be deemed admitted. Matters alleged in The original and two copies of each docu
the answer as affirmative defenses shall ment shall be submitted to the hearing be separately stated and numbered. clerk for filing. With respect to exhibits Failure of Respondent to file an answer and transcripts of testimony, only orig- within the 15-day period following reinals need be filed.
ceipt of the notice may be deemed an ad(b) Service upon a party or amicus mission of all facts recited in the notice. shall be made by delivering one copy of
§ 14.15 Amendments. each document requiring service in per
The Department may amend its notice son or by certified mail, return receipt
once as a matter of course before an requested, properly addressed with post
answer is filed, and Respondent may age prepaid to the party or amicus or
amend its answer once as a matter of his attorney, or designated representa
course not later than 15 days after it is tive. Filing will be made in person or by filed. Other amendments of the notice certified mail, return receipt requested, or of the answer to the notice shall be to the hearing clerk, at the address stated made only by leave of the hearing exin the notice of hearing.
aminer. An amended notice shall be (c) The date of filing or of service answered within 10 days of its service, or shall be the day when the matter is
within the time for filing an answer to deposited in the U.S. mail or is delivered the original notice, whichever period is in person.
longer. (d) A copy of all documents submitted § 14.16 Motions. in a proceeding shall be sent to the
Motions and petitions shall state the hearing examiner.
relief sought, the basis for relief and the $ 14.12 Certificate of service.
authority relied upon. If made before or
after the hearing itself, these matters The original of every document filed
shall be in writing. If made at the hearand required to be served upon parties
ing, they may be stated orally; but the shall be endorsed with a certificate of
hearing examiner may require that they service signed by the party or amicus be reduced to writing and filed and curiae making service or by his attorney served on all parties in the same manner or representative, stating that such serv- as a formal motion. Within 8 days after ice has been made, the date of service, a written motion or petition is served, and the manner of service.
any party may file a response to a motion or petition. An immediate oral re- items; or by permission to enter propsponse may be made to an oral motion. erty, for inspection and other purposes. Oral argument on motions will be at the (b) Scope. Parties may obtain disdiscretion of the hearing examiner. covery regarding any matter, not privi
leged, which is relevant to the subject § 14.17 Disposition of motions.
matter involved in the hearing. The hearing examiner may not grant (c) Protective orders. Upon motion by a written motion or petition prior to ex- a party or by the person from whom dispiration of the time for filing responses covery is sought, and for good cause thereto, but may overrule or deny such shown, the hearing examiner may make motion or petition without awaiting re- any order which justice requires to prosponse: Provided, however, That pre- tect a party or person from annoyance, hearing conferences, hearings, and de- embarrassment, oppression, or undue cisions need not be delayed pending dis- burden or expense. position of motions or petitions. Oral (d) Sequence and timing. Methods of motions and petitions may be ruled on discovery may be used in any sequence. immediately.
The fact that a party is conducting dis$ 14.18 Interlocutory appeals.
covery shall not operate to delay any
other party's discovery. No interlocutory appeals will be per- (e) Time limit. Discovery by all parmitted from an adverse ruling except as ties will be completed within 75 days specifically provided in these rules.
from the date the notice of hearing is 8 14.19 Exhibits.
served on Respondent. Proposed exhibits shall be exchanged
$ 14.22 Depositions. at the prehearing conference, or other- (a) After the notice of hearing has wise prior to the hearing, if the hearing been filed, any party may take the testiexaminer requires. Proposed exhibits not mony of any person, including a party, so exchanged may be denied admission
by deposition upon oral examination. as evidence. The authenticity of all ex- This may be done by stipulation or by hibits submitted prior to the hearing will notice, as set forth in paragraph (b) of be deemed admitted unless written ob- this section. jection thereto is filed and served on all (b) (1) The party will give reasonable parties, or unless good cause is shown for notice in writing to every other party of failure to file such written objection. the time and place for taking depositions, § 14.20 Admissions
the name and address of each person to documents.
be examined, if known, or a general
description sufficient to identify him or Not later than 25 days prior to the date
the particular class or group to which he of the hearing any party may serve upon
belongs. an opposing party a written request for
(2) The notice to a deponent may be the admission of the genuineness and au
accompanied by a request for the prothenticity of any relevant documents de
duction of documents and tangible scribed in, and exhibited with, the re
things at the taking of the deposition. quest, or for the admission of the truth
(3) A party may name as the depoof any relevant matters of fact stated in
nent a corporation, partnership, assothe request. Each of the matters as to ciation, or governmental agency and may which an admission is requested shall be designate a particular person within the deemed admitted, unless within a period organization whose testimony is desired of 20 days, the party to whom the request and the matters on which examination is directed serves upon the requesting is requested. If no particular person is party a statement either (a) denying spe- named, the organization shall designate cifically the matters as to which an ad- one or more agents to testify on its bemission is requested, or (b) setting forth half, and may set forth the matters on in deta'l the reasons why he cannot
which each will testify. The persons so truthfully either admit or deny such designated shall testify as to matters matters.
known or reasonably available to the
organization. & 14.21 Discovery.
(c) Examination and cross-examina(a) Methods. Parties may obtain dis- tion of witnesses may proceed as percovery by depositions, written interroga- mitted at the hearing. The officer before tories, production of documents, or other whom the deposition is to be taken shall
put the witness on oath and shall personally record the testimony of the witness.
(d) If during the taking of a deposition there is bad faith in the conduct of the examination, annoyance, embarrassment, oppression of a deponent or party or improper questions propounded, & party or deponent may request suspension of the deposition. The deposition will then be adjourned. However, the objecting party or deponent must immediately move the hearing examiner for a ruling on the suspension. The hearing examiner may then limit the scope and/ or manner of the taking of the deposition.
(e) The oficer shall certify the deposition and promptly file it with the hearing clerk. Documents or true copies of documents and other items produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition.
(f) The party taking the deposition shall give prompt notice of its filing to all other parties. & 14.23 Use of depositions at hearing.
(a) Any part or all of a deposition, so far as admissible under § 14.31 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof as follows:
(1) Any deposition may be used for contradiction or impeachment of the deponent as a witness.
(2) The deposition of a party, or of an agent designated to testify on behalf of a party, may be used by an adverse party for any purpose.
(3) The deposition of any witness may be used if the party offering the deposition has been unable to procure his attendance or if he is unable to testify by reason of age; illness; infirmity; imprisonment; death, his residence outside the State or if he is out of the country, unless his absence was procured by the party offering his deposition.
(b) If only part of a deposition is offered in evidence, the remainder becomes subject to introduction by any party.
(c) 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. § 14.24 Interrogatories to parties.
(a) Any party may serve upon any other party written interrogatories after the notice of hearing has been filed. If the party served is a corporation, partnership, association, or governmental agency, an agent shall furnish such information as is available to the party.
(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney or other representative making them. Answers and objections shall be made within 30 days after the service of the interrogatories. The party submitting the interrogatories may move for an order under section 14.26 with respect to any objection to or other failure to answer an interrogatory.
(c) Interrogatories shall relate to any matter not privileged which is relevant to the subject matter of the hearing. $ 14.25 Production of documents and
things and entry upon land for in
spection and other purposes. (a) After the notice of hearing has been filed, 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 designated documents, phonorecords, and other data compilations from which information can be obtained 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 the notice of hearing has been filed, any party may serve on any other party a request to permit entry upon designated property 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.
(c) Each request shall set forth with reasonable particularity the items to be inspected and shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.