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§ 8.32 Scope of rules.

These rules govern the practice and procedure for proceedings conducted by the Agency to decide whether to impose sanctions on a respondent under sections 209(a) (1), (5), and (6) of the Executive Order, for violations of the Executive Order and rules, regulations, and orders thereunder.

§ 8.33 Definitions.

Except as otherwise indicated by the context in which it appears in these regulations, the term:

(a) "Agency" means the Environmental Protection Agency.

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

(c) "Director" means the Director of the Office of Civil Rights and Urban Affairs.

(d) "Executive Order" means Executive Order 11246, 30 FR 12319, as amended.

(e) "Hearing" means a hearing conducted as specified in this subpart to enable the Agency to decide whether to impose sanctions on a respondent for violations of the Executive Order and rules, regulations, and orders thereunder.

(f) "Hearing examiner" means a hearing examiner appointed by the Assistant Administrator for Enforcement and General Counsel.

(g) "Notice" means a notice of hearing.

(h) "Office of Civil Rights" means the Office of Civil Rights and Urban Affairs in the Agency.

(i) "Office of Federal Contract Compliance" means the Office of Federal Contract Compliance, U.S. Department of Labor.

(j) "Office of the Assistant Administrator for Enforcement and General Counsel," means the Office of the Assistant Administrator for Enforcement and General Counsel in the Agency.

(k) “Party” means a respondent; the Director; and any person or organization participating in a proceeding pursuant to section 8.

(1) "Person" means any natural person, corporation, partnership, unincorporated association, State or local government, and any agency, instru

mentality or subdivision of such a government.

(m) "Respondent" means a person against whom sanctions are proposed because of alleged violations of the Executive Order and rules, regulations, and orders thereunder.

§ 8.34 Time computation.

Except as otherwise provided by law, 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, which starts the period running, and includes the last day of the period, unless it is a Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in which event it includes the next following day which is not a Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When the period of time to be computed is 7 days or less, intermediate Saturdays, Sundays, Federal legal holidays and other nonbusiness days shall be excluded in the computation. In all other cases such days shall be included in the computation.

DESIGNATION AND RESPONSIBILITIES OF HEARING EXAMINER

§ 8.35 Designation.

Each hearing shall be held before a hearing examiner designated by the Assistant Administrator for Enforcement and General Counsel.

§ 8.36 Authority and responsibilities.

(a) The hearing examiner shall have all powers necessary to preside over the parties and the proceedings, conduct the hearing and enter recommend findings and conclusions and a recommended determination. His powers shall include, but not be limited to, the power to:

(1) Hold conferences to settle, simplify, or fix the issues involved, or to consider other matters that may aid in the expeditious disposition of the proceedings.

(2) Require parties at any point in the proceedings to state their position with respect to the various issues involved.

(3) Establish rules for media coverage of the proceedings.

(4) Rule on motions and other procedural items.

(5) Regulate the course of the hearing, the conduct of counsel, parties, witnesses and other participants.

(6) Administer oaths and affirmations, call witnesses on his own motion, 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 regulations or the provisions of applicable law.

(b) The hearing examiner shall recommend findings of fact, conclusions of law and a determination of the issues on the basis of the record before him to the Assistant Administrator for Enforcement and General Counsel.

APPEARANCE AND PRACTICE

§ 8.37 Participation by a party.

Subject to the provisions contained in § 8.38 of this part, a party may appear in person, by representative, or by counsel, and participate fully in any proceeding held under these regulations.

§ 8.38 Determination of parties.

(a) The respondent and the Director shall be the initial parties to any 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 signatory to such agreement shall also have the right to participate as a party.

(b) Other persons may at the discretion of the hearing examiner or of the Assistant Administrator for Enforcement and General Counsel be granted the right to participate as parties if he determines that the final decision could directly and adversely affect them or the class they represent, and that they may contribute materially to the disposition of the proceedings.

(c) Any person wishing to participate as a party under paragraph (b) of this section in any hearing shall submit a

petition to the hearing examiner within 15 days after the notice of such hearing has been served. The petition should be filed with the hearing examiner and served on Respondent, on the Director, and on any other person who is 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 the petitioner is qualified in his judgment to be a party in the proceedings, as defined in paragraph (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 qualified to participate under paragraph (a) of this section shall 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 whose petition for party participation is denied may appeal the decision to the Assistant Administrator for Enforcement and General Counsel within 7 days of receipt of notice of denial. The Assistant Administrator for Enforcement and General Counsel will make the final decision for the Agency to grant or deny the petition.

§ 8.39 Determination and participation of amici.

(a) Any interested person 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 may 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.

(c) An amicus curiae is not a party and 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 serve a copy on each party. He may also file a brief or written statement at such time as the parties submit proposed findings and conclusions and supporting briefs to the hearing examiner and at such time as the parties file exceptions to the recommended determination of the hearing examin

er.

FORM AND FILING OF DOCUMENTS

§ 8.40 Form.

Documents filed in a proceeding subject to this part shall show the docket description and title of the proceeding, the party or amicus submitting the document, the date signed, and the title, if any, and address of the signatory. The original will be signed in ink by the party representing the party or amicus. Copies need not be signed, but the name of the person signing the original shall be reproduced.

88.41 Filing and service.

(a) Copies of all documents submitted in a proceeding shall be served on all parties including amicii, and in addition the original and two copies of each document shall be submitted for filing with the hearing examiner at the address stated in the notice. With respect to exhibits and transcripts of testimony, only originals need be filed.

(b) Service upon a party or amicus shall be made by delivering one copy of each document requiring service in person or by certified mail, return receipt requested, properly addressed with postage prepaid, to the party or amicus or his attorney or designated 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.

§ 8.45 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.

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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.

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(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 dis

covery 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 conducting 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 qualified 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

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