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Sec. 8.45 Amendments. 8.46 Motions. 8.47 Disposition of motions. 8.48 Interlocutory appeals. 8.49 Exhibits. 8.50 Admissions as to facts and documents. 8.51 Discovery. 8.52 Depositions. 8.53 Use of depositions at hearing. 8.54 Interrogatories to parties. 8.55 Production of documents and things

and entry upon land for inspection and

other purposes. 8.56 Sanctions. 8.57 Ex parte communications.

PREHEARING 8.58 Prehearing conferences.

HEARING 8.59 Appearances. 8.60 Purpose. 8.61 Evidence. 8.62 Official notice. 8.63 Testimony. 8.64 Objections. 8.65 Exceptions. 8.66 Offer of proof. 8.67 Official transcript.

POSTHEARING PROCEDURES 8.68 Proposed findings of fact and conclu

sions of law. 8.69 Record for decision. 8.70 Recommended determination. 8.71 Exceptions to recommended determi

nation. 8.72 Record. 8.73 Final decision.

AUTHORITY: Section 201, Executive Order 11246, 30 FR 12319; and 41 CFR 60-1.6(c).

SOURCE: 39 FR 3258, Jan. 25, 1974, unless otherwise noted.

8 8.2 Definitions.

(a) “Administering agency” means any department, agency, and establishment in the Executive Branch of the Government, including any wholly owned Government corporation, which administers a program involving federally assisted construction contracts.

(b) “Administrator" means the Administrator of the Environmental Protection Agency.

(c) "Agency” means the Environmental Protection Agency.

(d) “Applicant" means an applicant for Federal assistance from the Agency involving a construction contract, or other participant in a program involving a construction contract as determined by the regulations of the Agency. The term also includes such persons after they become recipients of such Federal assistance.

(e) "Compliance Agency” means the agency designated by the Director on a geographical, industry, or other basis to conduct compliance reviews and to undertake such other responsibilities in connection with the administration of the order as the Director may determine to be appropriate. In the absence of such a designation the Compliance Agency will be determined as follows:

(1) In the case of a prime contractor not involved in construction work, the Compliance Agency will be the agency whose contracts with the prime contractor have the largest aggregate dollar value;

(2) In the case of a subcontractor not involved in construction work, the Compliance Agency will be the Compliance Agency of the prime contractor with which the subcontractor has the largest aggregate value of subcontracts or purchase orders for the performance of work under contracts;

(3) In the case of a prime contractor or subcontractor involved in construction work, the Compliance Agency for each construction project will be the agency providing the largest dollar value for the construction projects; and

(4) In the case of a contractor who is both a prime contractor and subcontractor, the Compliance Agency will be

Subpart A-Compliance Standards

and Procedures

8 8.1 Purpose.

This part prescribes standards and procedures for the Environmental Protection Agency in discharging its responsibilities under Executive Order 11246 (3 CFR, 1964-1965 Comp., p. 139); the rules and regulations of the Secretary of Labor, codified in 41 CFR Part 60, prescribed thereunder; and other rules, orders, instructions, designations, and directives issued by the Office of Federal Contract Compliance, Department of Labor.

determined as if such contractor is a (n) "Government contract” means prime contractor only.

any agreement or modification thereof (f) “Construction work” means the between any contracting agency and construction, rehabilitation, alter any person for the furnishing of supation, conversion, extension, demoli plies or services or for the use of real tion or repair of buildings, highways, or personal property, including lease or other changes or improvements to arrangements. The term “services," as real property, including facilities pro- used in this definition includes, but is viding utility services. The term also not limited to, the following services: includes the supervision, inspection,

Utility, construction, transportation, and other on-site functions incidental research, insurance, and fund deposito the actual construction.

tory. The term "government contract” (g) “Contract” means any Govern does not include (1) agreements in ment contract or any federally assist which the parties stand in the relaed construction contract.

tionship of employer and employee, (h) “Contractor” means, unless oth and (2) federally assisted construction erwise indicated, a prime contractor or contracts. subcontractor.

(o) “Hearing officer" means the indi(i) "Director” means the Director,

vidual or board of individuals designatOffice of Federal Contract Compli

ed to conduct hearings. ance, U.S. Department of Labor, or

(p) “Modification" means any alterany person to whom he delegates au

ation in the terms and conditions of a thority under the regulations of the contract, including supplemental Secretary of Labor.

agreements, amendments and exten(j) “Equal opportunity clause" sions. means the contract provisions set (q) "Order” means Parts II, III, and forth in sections 4 (a) or (b), as appro- IV of Executive Order 11246, dated priate.

September 24, 1965 (30 FR 12319), and (k) “Facilities" includes, but it is not

any Executive Order amending or sulimited to, waiting rooms, work areas,

perseding such orders. restaurants and other eating areas,

(r) “Person” means any natural time clocks, restrooms, washrooms, person, corporation, partnership, uninlocker rooms and other storage or corporated association, State or local dressing areas, parking lots, drinking government, and any agency, instrufountains, recreation or entertainment mentality, or subdivision of such a areas, transportation, and housing government. facilities provided for employees.

(s) “Prime contractor" means any (1) "Federally assisted construction person holding a contract, and for the contract" means any agreement or purposes of Subpart B (General Enmodification thereof between any ap

forcement, Compliance Review, and plicant and any person for construc Complaint Procedure) of the rules, tion work which is paid for in whole or regulations, and relevant orders of the in part with funds obtained from the Secretary of Labor, any person who Agency or borrowed on the credit of has held a contract subject to the the Agency pursuant to any Federal order. program involving a grant, contract, (t) "Recruiting and training agency" loan, insurance, or guarantee, or un- means any person who refers workers dertaken pursuant to any Federal pro- to any contractor or subcontractor, or gram involving such grant, contract, who provides or supervises apprenticeloan, insurance, or guarantee, or any ship or training for employment by application or modification thereof ap- any contractor or subcontractor. proved by the Agency for a grant, con (u) “Rules, regulations, and relevant tract, loan, insurance, or guarantee orders of the Secretary of Labor" used under which the applicant itself par in both paragraph (4) of the equal opticipates in the construction work. portunity clause and elsewhere herein

(m) “Government” means the Gov. means rules, regulations, and relevant ernment of the United States of Amer orders of the Secretary of Labor or his

designee issued pursuant to the Order.

ica.

(v) “Site of construction" means the (b) Contract Compliance Officer general physical location of any build- (CCO). The Director of the Office of ing, highway, or other change or im- Civil Rights and Urban Affairs has provement to real property which is been designated as the Contract Comundergoing construction, rehabilita pliance Officer (CCO), and is responsition, alteration, conversion, extension, ble for developing and administering demolition, and repair and any teinpo the Agency's program under the order. rary location or facility at which a (c) Director, Compliance Division. contractor, subcontractor, or other The Director of the Compliance Diviparticipating party meets a demand or sion (ADCCO) has been designated to performs a function relating to the assist the Contract Compliance Officontract or subcontract.

cer in the performance of his duties. (w) "Subcontract” means any agree He is authorized to exercise the aument or arrangement between a con- thority of the Contract Compliance tractor and any person (in which the Officer. parties do not stand in the relation. (d) Deputy Contract Compliance Ofship of any employer and an employ

ficer (DCCO). Each Regional Director ee):

of Civil Rights and Urban Affairs has (1) For the furnishing of supplies or

been designated by the Contract Comservices or for the use of real or per

pliance Officer as Deputy Contract sonal property, including lease ar

Compliance Officer (DCCO) for the rangements, which, in whole or in

Region in which he serves. Deputy part, is necessary to the performance

Contract Compliance Officers are reof any one or more contracts; or

sponsible for field administration of (2) Under which any portion of the

programs of contract compliance in

conformity with directives and guidecontractor's obligation under any one or more contracts is performed, under

lines promulgated by the Contract

Compliance Officer. taken or assumed. (x) "Subcontractor" means any

(e) Heads of program areas. Assistperson holding a subcontract and, for

ant Administrators and Regional Ad

ministrators who are authorized to the purposes of Subpart B (General

extend Federal financial assistance Enforcement; Compliance Review; and Complaint Procedure) of the rules,

which involves construction work shall

be responsible for effectuating the regulations, and relevant orders of the Secretary of Labor any person who

order, rules, regulations, and relevant had held a subcontract subject to the

orders of the Secretary of Labor,

OFCC directives this part, directives order. The term “First-tier subcontrac

of the Agency, and all other rules, regtor" refers to a subcontractor holding

ulations, and orders issued pursuant a subcontract with a prime contractor.

thereto as they relate to construction (y) "United States” as used herein

contracts financially assisted by the shall include the several States, the

Agency.
District of Columbia, the Common-
wealth of Puerto Rico, the Panama 88.4 Equal opportunity clause.
Canal Zone, and the possessions of the
United States.

(a) Government contracts. Except as

otherwise provided, the following (z) “Minority group" as used herein shall include, where appropriate,

equal opportunity clause contained in

section 202 of the Order shall be infemale employees and prospective

cluded in each Government contract female employees.

entered into by the Agency (and modi8 8.3 Responsibilities.

fication thereof if not included in the

original contract): (a) General. The Environmental Protection Agency is primarily responsible

During the performance of this contract,

the contractor agrees as follows: for implementing the requirements of

(1) The contractor will not discriminate the order, and all rules, regulations,

against any employee or applicant for emand orders issued pursuant thereto for

ployment because of race, color, religion, all contracts for which it is the Com

sex, or national origin. The contractor will pliance Agency.

take affirmative action to ensure that appli

cants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this equal opportunity clause.

(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.

(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract, or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under this equal opportunity clause, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(4) The contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(5) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(6) In the event of the contractor's noncompliance with the equal opportunity clause of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended, in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24. 1965. and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965. or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law,

(7) The contractor will include the provisions of paragraph (a) (1) through (7) of this section in every subcontract or purchase order unless exempted by rules, regu

lations, or orders of the Secretary of Labor issued pursuant to sec. 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the contracting agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event the contractor becomes involved in. or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

(b) Federally assisted construction contracts. Except as otherwise provided, the agency shall include or require the inclusion of the following language as a condition of any grant, contract, loan, insurance, or guarantee involving federally assisted construction which it administers as Administering Agency and which is not exempt from the requirements of the equal opportunity clause:

The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan, insurance, or guarantee or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following equal opportunity clause:

During the performance of this contract, the contractor agrees as follows:

(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shal origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provi

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sions of this equal opportunity (federally assisted construction) clause.

(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.

(3) The contractor will send to each labor union or representative of workers, with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representative of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(4) The contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(5) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(6) In the event of the contractor's noncompliance with the equal opportunity (fed erally assisted construction) clause of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended, in whole or in part, and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be im posed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as provided by law.

(7) The contractor will include this equal opportunity (federally assisted construction) clause in every subcontract or pur chase order unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event a contractor becomes in. volved in, or is threatened with. litigation with a subcontractor or vendor, as a result of such direction by the administering

agency the contractor may request the United States to enter into such litigation to protect the interests of the United States.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such gov. ernment which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the Agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor; that it will furnish the Agency and the Secretary of Labor such information as they may require for the supervision of such compliance; and that it will otherwise assist the Agency in the discharge of its primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to the Order with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Order and will carry out such sanctions and penalties for violation of the equal opportunity clause, as may be imposed upon contractors and subcontractors by the Agency or the Secretary of Labor pursuant to Part II, Subpart D of the Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the Agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

(c) Subcontracts. Each nonexempt prime contractor or subcontractor shall include the equal opportunity clause in each of its nonexempt subcontracts.

(d) Incorporation by reference. The equal opportunity clause may be incorporated by reference in Government bills of lading, transportation requests. contracts for deposit of Government funds, contracts for issuing and paying

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