representative. Filing will be made in person or by certified mail, return receipt requested, to the hearing examiner, at the address stated in the notice of scheduled hearing.

(c) The date of filing or of service of a document shall be the day when the document is deposited in the United States mail or is delivered in person.

§ 8.42 Certificate of service.

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

§ 8.43 Notice of hearing.

Whenever a respondent requests a hearing, the Director shall serve on the Respondent, as required by 41 CFR 60-1.26(b), a notice of hearing by registered mail, return receipt requested, to Respondent's last known address. Such notice shall contain the time and place of the hearing; a statement or citation of the legal authority under which the proceedings are to be held; and a concise statement of the facts which are thought to justify the sanctions or other actions proposed.

§ 8.44 Answer to notice.

Within 15 days after receipt of the notice of hearing, Respondent shall file an answer. This answer shall admit or deny specifically and in detail matters set forth in each allegation of the notice unless Respondent is without knowledge sufficient to enable him to so admit or deny, in which case his answer should so state, and the statement shall be deemed a denial. Matters not specifically denied shall be deemed admitted. Matters alleged in the answer as affirmative defenses shall be separately stated and numbered. Failure of Respondent to file an answer within the 15-day period following receipt of the notice may be deemed an admission to all facts recited in the notice.

88.45 Amendments.

The Director may amend his 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 examiner. 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.

§ 8.46 Motions.

Motions and petitions shall state the relief sought, the basis for relief and the authority relied upon. If made before or after the hearing itself, they shall be in writing. If made at the hearing, they may be stated orally; but the hearing examiner may require that they be reduced to writing and filed and served on all parties. Within 8 days after a written motion or petition is served on a party, that party may file a response. An immediate oral response may be made to an oral motion. Oral argument on motions will be at the discretion of the hearing examiner.

§ 8.47 Disposition of motions.

The hearing examiner 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.

§ 8.48 Interlocutory appeals.

No interlocutory appeals will be permitted from an adverse ruling except as specifically provided in these rules. § 8.49 Exhibits.

Proposed exhibits shall be exchanged at the prehearing conference, or otherwise prior to the hearing, if the hearing examiner so directs. If the hearing examiner directs an exchange, proposed exhibits not so exchanged

may be denied admission as evidence. The authenticity of all exhibits submitted prior to the hearing under direction of the hearing examiner, will be deemed admitted unless written objection thereto is filed and served on all parties at least fifteen (15) days prior to the date of the hearing, or unless good cause is shown for failure to file such written objection.

§ 8.50 Admissions as to facts and docu

ments.

Not later than 25 days prior to the date of the hearing 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 matter as to which an admission is requested shall be deemed admitted unless within a period of 20 days the party to whom the request is directed serves upon the requesting party a 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.

§ 8.51 Discovery.

(a) Methods. Parties may obtain discovery as provided in these rules by deposition, written interrogatories, production of documents, or other items; or by permission to enter property for inspection and other purposes.

(b) Scope. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the hearing.

(c) Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the hearing examiner may make any order which justice requires to limit or condition discovery in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

(d) Sequence and timing. Methods of discovery may be used in any sequence. The fact that a party is con

ducting discovery shall not operate to delay any other party's discovery.

(e) Time limit. Discovery by all parties will be completed within such time as the examiner directs from the date the notice of hearing is served on Respondent.

§ 8.52 Depositions.

(a) A party may take the testimony of any person, including a party, by disposition upon oral examination. This may be done by stipulation or by notice, as set forth in paragraph (b) of this section. On motion of any party or other person upon whom the notice is served, the hearing examiner may for cause shown enlarge or shorten the time for the deposition, change the place of the deposition, limit the scope of the deposition or quash the notice. Depositions of persons other than parties or their representatives shall be upon consent of the deponent.

(b) (1) The party taking a deposition will give reasonable notice in writing to every other party of the time and place for taking depositions, the name and address of each person to be examined, if known, or, if the name and address of any such person are not known, a general description sufficient to identify him or the particular class or group to which he belongs.

(2) The notice to a deponent may be accompanied by a request for the production of documents and tangible things at the taking of the deposition.

(3) A party may name as the deponent a corporation, partnership, association, or governmental agency and may designate a particular person within the organization whose testimony is desired and the matters on which examination is requested. If no particular person is named, the organization shall designate one or more agents to testify on its behalf, and may set forth the matters on which each will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.

(c) Examination and cross-examination of witnesses shall proceed as would be permitted at the hearing. Each witness shall be placed under oath by a disinterested person quali

fied to administer oaths by the laws of the United States or of the place where the examination is held, and the testimony taken by such person shall be recorded verbatim.

(d) During the taking of a deposition a party or deponent may request suspension of the deposition on grounds of bad faith in the conduct of the examination, annoyance, embarrassment, oppression of deponent or party or improper questions propounded. The deposition will then be adjourned. However, the objecting party or deponent must immediately move the hearing examiner for a ruling on such objections. The hearing examiner may then limit the scope or manner of the taking of the deposition.

(e) The officer shall certify the deposition and promptly file it with the hearing examiner. The originals 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 as a part thereof.

(f) The party taking the deposition shall give prompt notice of its filing to all other parties.

§ 8.53 Use of depositions at hearing.

(a) Any part or all of a deposition, so far as the statements or other matter in it would be admissible if the deponent were present and testifying in person at the hearing, may be used as follows against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof:

(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 by a party to testify on his behalf, may be used by an adverse party for any purpose.

(3) The deposition of any witness may be used for any purpose if the witness is dead; or if the witness is at greater distance than 100 miles from the place of hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or if the witness is unable to attend or testify because of age, ill

ness, infirmity, or imprisonment; or, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witness orally in open hearing, to allow the deposition to be used.

(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.

§ 8.54 Interrogatories to parties.

(a) Any party may serve upon any other party written interrogatories after the notice of hearing has been filed.

(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 26(a)(1) with respect to any objection to or other failure to answer an interrogatory.

(c) Interrogatories may relate to any matter not privileged which is relevant to the subject matter of the hearing.

§ 8.55 Production of documents and things and entry upon land for inspection 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 permit the party, or someone acting on his behalf, to inspect and copy any designated documents, phonorecords, or 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, transla

tion 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 latter party 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.

(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 reason for each objection shall be stated. The party submitting the request may move for an order under section 26(a)(1) with respect to any objection or other failure to respond.

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

(1) If a deponent fails to answer a question propounded or submitted under section 22(c) or a corporation or other entity fails to make a designation under section 22(b)(3), or a party fails to answer an interrogatory submitted under section 24, or if a party, under section 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 estab

lished 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 or objections to interrogatories submitted under section 24, or (3) to serve a written response to a request for inspection, submitted under section 25, the hearing examiner on motion may make such orders as are just, including those authorized under paragraphs (b) (1) and (2) of this section.

§ 8.57 Ex parte communications.

(a) Written or oral communications involving any substantive or procedural issue in a matter subject to these rules, directed to the hearing examiner, the Director; the Director, Office of Federal Contract Compliance; or the Assistant Administrator for Enforcement and General Counsel, shall be deemed ex parte communications and are not to be considered part of any record or the basis for any official decision, unless the communication is made by motion pursuant to these rules.

(b) The hearing examiner shall not consult any person, or party, on any fact in issue or on the merits of any matter before him except upon notice and opportunity for all parties to participate.

(c) No employee or agent of the Federal Government engaged in the investigation and prosecution of a proceeding governed by these rules shall participate or advise in the rendering of the recommended or final decision, except as witness or counsel in the proceeding.

PREHEARING

§ 8.58 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 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 at the discretion of the hearing examiner, upon his own motion or the motion of a party.

HEARING

§ 8.59 Appearances.

In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall either present all his evidence or shall present such portion thereof as is sufficient to make a prima facie case before the hearing examiner. Failure to appear at a hearing shall 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.

§ 8.60 Purpose.

(a) The hearing is directed primarily to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. A hearing I will be held in order to determine whether Respondent has failed to comply with one or more applicable requirements of the Executive Order, 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 §§ 8.68 through 8.73.

8 8.61 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.

§ 8.62 Official notice.

Whenever a party offers a 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.

§ 8.63 Testimony.

Testimony shall be given under oath by witnesses at the hearing. All witnesses shall be subject to 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.

§ 8.64 Objections.

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

§ 8.65 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.

§ 8.66 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.