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(2) The notice to a deponent may be $ 4.772 Use of depositions at hearing. accompanied by a request for the pro
(a) Any part or all of a deposition, so duction of documents and tangible
far as admissible under $ 4.780 applied things at the taking of the deposition.
as though the witness were then pres(3) A party may name as the depo
ent and testifying, may be used nent a corporation, partnership, asso
against any party who was present or ciation, or governmental agency and
represented at the taking of the depomay designate a particular person
sition or who had reasonable notice within the organization whose testi
thereof as follows: mony is desired and the matters on
(1) Any deposition may be used for which examination is requested. If no
contradiction or impeachment of the particular person is named, the organi
deponent as a witness. zation shall designate one or more
(2) The deposition of a party, or of agents to testify on its behalf, and
an agent designated to testify on may set forth the matters on which
behalf of a party, may be used by an each will testify. The persons so desig
adverse party for any purpose. nated shall testify as to matters
(3) The deposition of any witness known or reasonably available to the
may be used for any purpose if the organization.
party offering the deposition has been (c) Examination and cross-examina- unable to procure the attendance of tion of witnesses may proceed as per
the witness because he is dead; or if mitted at the hearing. The witness
the witness is at a greater distance shall be placed under oath by a disin than 100 miles from the place of hearterested person qualified to administer
ing, or is out of the United States, oaths by the laws of the United States unless it appears that the absence of or of the place where the examination
the witness was procured by the party is held, and the testimony taken by offering the deposition; or if the witsuch person shall be recorded verba
ness is unable to attend or testify betim.
cause of age, illness, infirmity, or im(d) During the taking of a deposition prisonment; or, upon application and a party or deponent may request sus notice, that such exceptional circumpension of the deposition on grounds stances exist as to make it desirable, in of bad faith in the conduct of the ex- the interest of justice and with due amination, annoyance, embarrass- regard to the importance of presenting ment, oppression of a deponent or the testimony of witnesses orally in party or improper questions pro- open hearing, to allow the deposition pounded. The deposition will then be to be used. adjourned. However, the objecting (b) If only part of a deposition is ofparty or deponent must immediately fered in evidence, the remainder bemove the administrative law judge for comes subject to introduction by any a ruling on his objections to the depo- party. sition conduct or proceedings. The ad- (c) Objection may be made at the ministrative law judge may then limit hearing to receiving in evidence any the scope or manner of the taking of deposition or part thereof for any the deposition.
reason which would require the exclu(e) The officer shall certify the dep- sion of the evidence if the witness osition and promptly file it with the were then present and testifying. administrative law judge. Documents or true copies of documents and other
§ 4.773 Interrogatories to parties. items produced for inspection during (a) Any party may serve upon any the examination of the witness shall, other party written interrogatories upon the request of a party, be after the notice of hearing has been marked for identification and annexed filed. If the party served is a corporato the deposition.
tion, partnership, association, or gov(f) The party taking the deposition ernmental agency, an agent shall furshall give prompt notice of its filing to nish such information as is available all other parties.
to the party.
lated 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 & 4.775 with respect to any objection to or other failure to respond.
(b) Each interrogatory shall be an swered 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 $ 4.775 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.
§ 4.774 Production of documents and
things and entry upon land for inspec
tion 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 ren, sonable time, place, and manner of making the inspection and performing the related acts.
(d) The party upon whom the re. quest 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 re
& 4.775 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 $ 4.771(c), or a corporation or other entity fails to make a designation under $ 4.771(b)(3), or a party fails to answer an interrogatory submitted under $ 4.773, or if a party, under $ 4.774 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. is
(b) If a party or an agent designated to testify fails to obey an order to permit discovery, the administrative law judge 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
(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 $ 4.773, or (3) to serve a written response to a request for inspection, submitted under $ 4.774, the administrative law judge on motion may make such orders as are just, including those authorized under paragraphs (b) (1) and (2) of this section.
§ 4.776 Ex parte communications.
(a) Written or oral communications involving any substantive or procedural issue in a matter subject to these proceedings, directed to the administrative law judge, the Director, Office of Federal Contract Compliance, or the Director, Office of Hearings and Appeals, 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 administrative law judge shall not consult any person, or party, on any fact in issue or on the merits of the matter before him unless 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.
$ 4.778 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 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 a hearing shall not be deemed to be a waiver of the right to be served with a copy of the administrative law judge's proposed decision and to file exceptions to it. $ 4.779 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, 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 $ $ 4.787 to 4.792.
$ 4.780 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.
PREHEARING 8 4.777 Prehearing conferences.
(a) Within 15 days after the answer has been filed the administrative law judge 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 administrative law judge.
(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 administrative law judge, upon his own motion or the motion of a party.
$ 4.781 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 administrative law judge.
$ 4.782 Testimony.
script as are necessary to accurately Testimony shall be given under oath
reflect the testimony. by witnesses at the hearing. A witness
POSTHEARING PROCEDURES shall be available for cross-examination, and, at the discretion of the ad- 84.787 Proposed findings of fact and conministrative law judge, may be cross
clusions of law. examined without regard to the scope
Within 30 days after the close of the of direct examination as to any matter which is material to the proceeding.
hearing each party may file, or the ad
ministrative law judge may request, § 4.783 Objections.
proposed findings of fact and conclu
sions of law together with supporting Objections to evidence shall be
briefs. Such proposals and briefs shall timely, and the party making them
be served on all parties and amici. shall briefly state the ground relied
Reply briefs may be submitted within upon.
15 days after receipt of the initial pro
posals and briefs. Reply briefs should $ 4.784 Exceptions.
be filed and served on all parties and Exceptions to rulings of the adminis- amici. trative law judge are unnecessary. It is sufficient that a party, at the time the
$ 4.788 Record for decision. ruling of the administrative law judge
The administrative law judge will is sought, makes known the action
make his recommended findings, conwhich he desires the administrative
clusions, and recommended decision law judge to take, or his objection to
upon the basis of the record before an action taken, and his ground there him. The transcript of testimony, exfor.
hibits, and all papers, documents, and
requests filed in the proceedings, & 4.785 Offer of proof.
except the correspondence section of An offer of proof made in connec the docket, shall constitute the record. tion with an objection taken to any ruling of the administrative law judge $ 4.789 Recommended determination. excluding proffered oral testimony The administrative law judge shall, shall consist of a statement of the sub in an expeditious manner, rule on prostance of the evidence which counsel posed findings and conclusions submitcontends would be adduced by such ted by the parties; and shall make rectestimony. If the excluded evidence ommended findings, conclusions, and consists of evidence in written form or decision. These rulings and recommenconsists of reference to documents, a dations shall be certified, together copy of such evidence shall be marked with the record for decision, to the Difor identification and shall accompany rector, Office of Hearings and Apthe record as the offer of proof.
peals, for his decision. The rulings,
recommended findings, conclusions, § 4.786 Official transcript.
and decision of the administrative law An official reporter will be designat- judge shall be served on all parties and ed for all hearings. The official tran- amici curiae to the proceedings. scripts of testimony and argument taken, together with any exhibits,
§ 4.790 Exceptions to recommended deterbriefs, or memoranda of law filed
mination. therewith, shall be filed with the ad. Within 30 days after receipt of the ministrative law judge. Transcripts recommended determination, all parmay be obtained by the parties and ties to the proceeding may file with the public from the official reporter at the Director, Office of Hearings and rates not to exceed the applicable Appeals, exceptions to the recomrates fixed by the contract with the mended findings, conclusions and decireporter. Upon notice to all parties, sion of the administrative law judge, the administrative law judge may au- together with supporting briefs. Serythorize such corrections to the tran- ice of such exceptions and briefs shall
be made on all parties and amici. Such briefs may be responded to within 15 days of their receipt by the other parties. Responses shall be filed with the Director, Office of Hearings and Appeals, and served on all parties and amici.
$ 4.791 Record.
After expiration of the time for filing briefs and exceptions, the Director, Office of Hearings and Appeals, shall make a decision on the basis of the record before him. The record includes the record before the administrative law judge, the rulings, the recommended findings, conclusions and decision of the administrative law judge, and the exceptions and briefs filed subsequent to the administrative law judge's decision.
& 4.800 Scope and construction of rules.
(a) The rules of procedure in this Subpart I supplement Part 17 of this title and are applicable to the practice and procedure for hearings, decisions, and administrative review conducted by the Department of the Interior, pursuant to Title VI of the Civil Rights Act of 1964 (section 602, 42 U.S.C. 2000d-1) and Part 17 of this title, concerning nondiscrimination in Federally-assisted programs in connection with which Federal financial assistance is extended under laws administered in whole or in part by the Department of the Interior.
(b) These regulations shall be liberally construed to secure the just, prompt, and inexpensive determination of all proceedings consistent with adequate consideration of the issues involved and full protection of the rights of all interested parties including the Government.
§ 4.792 Final decision.
The Director, Office of Hearings and Appeals, may affirm, modify, or set aside in whole or in part, the recommended findings, conclusions, and decision of the administrative law judge. The decision of the Director, Office of Hearings and Appeals, shall not be final without the approval of the Director, Office of Federal Contract Compliance, Department of Labor.
Subpart 1-Special Procedural Rules
Applicable To Practice and Procedure for Hearings, Decisions, and Administrative Review Under Part 17 of this Title-Nondiscrimination in Federally-Assisted Programs of the Department of the Interior-Ef. fectuation of Title VI of the Civil Rights Act of 1964
§ 4.801 Suspension of rules.
Upon notice to all parties, the responsible Department official or the administrative law judge, with respect to matters pending before him, may modify or waive any rule in this part upon his determination that no party will be unduly prejudiced and the ends of justice will thereby be served. § 4.802 Definitions.
(a) The definitions set forth in $ 17.12 of this title apply also to this subpart.
(b) "Director" means the Director, Office for Equal Opportunity, Department of the Interior.
(c) “Administrative law judge” means an administrative law judge designated by the Office of Hearings and Appeals, Office of the Secretary, in accordance with 5 U.S.C. 3105 and 3344.
(d) “Notice" means a notice of hearing in a proceeding instituted under Part 17 of this title and these regulations.
(e) “Party' means a recipient or applicant; the Director; and any person or organization participating in a proceeding pursuant to $ 4.808.
AUTHORITY: 43 CFR 17.8 and 5 U.S.C. 301.
SOURCE: 38 FR 21162, Aug. 6, 1973, unless otherwise noted.
CROSS REFERENCE: See Subpart A for the organization, authority and jurisdiction of the Office of Hearings and Appeals, including its Hearings Division. To the extent they are not inconsistent with these special rules, the general rules applicable to all types of proceedings before the Hearings Division and the several Appeals Boards of the Office of Hearings and Appeals, contained in Subpart B of this part, are applicable also to proceedings under these regulations.