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Subpart C-Hearings 8 1905.20 Notice of hearing.

(a) Service. Upon request for a hearing as provided in this part, or upon his own initiative, the Assistant Secretary shall serve, or cause to be served, a reasonable notice of hearing.

(b) Contents. A notice of hearing served under paragraph (a) of this section shall include:

(1) The time, place, and nature of the hearing;

(2) The legal authority under which the hearing is to be held;

(3) A specification of issues of fact and law; and

(4) A designation of a hearing exam. iner appointed under 5 U.S.C. 3105 to preside over the hearing.

(c) Referral to hearing examiner. A copy of a notice of hearing served pursuant to paragraph (a) of this section shall be referred to the hearing examiner designated therein, together with the original application and any written request for a hearing thereon filed pursuant to this part.

8 1905.21 Manner of service.

Service of any document upon any party may be made by personal delivery of, or by mailing, a copy of the document to the last known address of the party. The person serving the document shall certify to the manner and the date of the service. 8 1905.22 Hearing examiners; powers and

duties. (a) Powers. A hearing examiner designated to preside over a hearing shall have all powers necessary or appropriate to conduct a fair, full, and impartial hearing, including the following:

(1) To administer oaths and affirmations;

(2) To rule upon offers of proof and receive relevant evidence;

(3) To provide for discovery and to determine its scope;

(4) To regulate the course of the hearing and the conduct of the parties and their counsel therein;

(5) To consider and rule upon procedural requests;

(6) To hold conferences for the settlement or simplification of the issues by consent of the parties;

(7) To make, or to cause to be made, an inspection of the employment or place of employment involved.

(8) To make decisions in accordance with the Act, this part, and the Administrative Procedure Act (5 U.S.C. Ch. 5); and

(9) To take any other appropriate action authorized by the Act, this part, or the Administrative Procedure Act.

(b) Private consultation. Except to the extent required for the disposition of ex parte matters, a hearing examiner may not consult a person or a party on any fact at issue, unless upon notice and opportunity for all parties to participate.

(c) Disqualification. (1) When a hearing examiner deems himself disqualified to preside over a particular hearing, he shall withdraw therefrom by notice on the record directed to the Chief Hearing Examiner.

(2) Any party who deems a hearing examiner for any reason to be disqualified to preside, or to continue to preside, over a particular hearing, may file with the Chief Hearing Examiner of the Department of Labor a motion to disqualify and remove the hearing examiner, such motion to be supported by affidavits setting forth the al. leged grounds for disqualification. The Chief Hearing Examiner shall rule upon the motion.

(d) Contumacious conduct; failure or refusal to appear or obey the rulings of a presiding hearing examiner. (1) Contumacious conduct at any hearing before the hearing examiner shall be grounds for exclusion from the hearing.

(2) If a witness or a party refuses to answer a question after being directed to do so, or refuses to obey an order to provide or permit discovery, the hearing examiner may make such orders with regard to the refusal as are just and appropriate, including an order denying the application of an applicant or regulating the contents of the record of the hearing.

(e) Referral to Federal Rules of Civil Procedure. On any procedural question not regulated by this part, the Act, or the Administrative Procedure Act, a hearing examiner shall be guided to the extent practicable by any pertinent provisions of the Federal Rules of Civil Procedure.

or

8 1905.23 Prehearing conferences.

(a) Convening a conference. Upon his own motion or the motion of a party, the hearing examiner may direct the parties or their counsel to meet with him for a conference to consider:

(1) Simplification of the issues;

(2) Necessity desirability of amendments to documents for purposes of clarification, simplification, or limitation;

(3) Stipulations, admissions of fact, and of contents and authenticity of documents;

(4) Limitation of the number of parties and of expert witnesses; and

(5) Such other matters as may tend to expedite the disposition of the proceeding, and to assure a just conclusion thereof.

(b) Record of conference. The hearing examiner shall make an order which recites the action taken at the conference, the amendments allowed to any documents which have been filed, and the agreements made between the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements; and such order when entered controls the subsequent course of the hearing, unless modified at the hearing, to prevent manifest injustice.

(b) Contents. Any agreement containing consent findings and rule or order disposing of a proceeding shall also provide:

(1) That the rule or order shall have the same force and effect as if made after a full hearing;

(2) That the entire record on which any rule or order may be based shall consist solely of the application and the agreement;

(3) A waiver of any further procedural steps before the hearing examiner and the Assistant Secretary; and

(4) A waiver of any right to challenge or contest the validity of the findings and of the rule or order made in accordance with the agreement.

(c) Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:

(1) Submit the proposed agreement to the presiding hearing examiner for his consideration; or

(2) Inform the presiding hearing examiner that agreement cannot be reached.

(d) Disposition. In the event an agreement containing consent findings and rule or order is submitted within the time allowed therefor, the presiding hearing examiner may accept such agreement by issuing his decision based upon the agreed findings.

8 1905.24 Consent findings and rules or

orders. (a) General. At any time before the reception of evidence in any hearing, or during any hearing a reasonable opportunity may be afforded to permit negotiation by the parties of an agreement containing consent findings and a rule or order disposing of the whole or any part of the proceeding. The allowance of such opportunity and the duration thereof shall be in the discretion of the presiding hearing examiner, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement which will result in a just disposition of the issues in. volved.

8 1905.25 Discovery.

(a) Depositions. (1) For reasons of unavailability or for other good cause shown, the testimony of any witness may be taken by deposition. Depositions may be taken orally or upon written interrogatories before any person designated by the presiding hearing examiner and having power to administer oaths.

(2) Application. Any party desiring to take the deposition of a witness may make application in writing to the presiding hearing examiner, setting forth: (i) The reasons why such deposition should be taken; (ii) the time when, the place where, and the name and post office address of the person before whom the deposition is to be taken; (iii) the name and address of each witness; and (iv) the subject

matter concerning which each witness dence, and to conduct such cross-exis expected to testify.

amination as may be required for a (3) Notice. Such notice as the presid- full and true disclosure of the facts. ing hearings examiner may order shall Any oral or documentary evidence be given by the party taking the depo- may be received, but a presiding hearsition to every other party.

ing examiner shall exclude evidence (4) Taking and receiving in evi- which is irrelevant, immaterial, or dence. Each witness testifying upon unduly repetitious. deposition shall be sworn, and the par- (2) Testimony of witnesses. The testies not calling him shall have the

timony of a witness shall be upon oath right to cross-examine him. The ques- or affirmation administered by the tions propounded and the answers

presiding hearing examiner. thereto, together with all objections

(3) Objections. If a party objects to made, shall be reduced to writing, read

the admission or rejection of any evito the witness, subscribed by him, and

dence, or to the limitation of the scope certified by the officer before whom

of any examination or cross-examinathe deposition is taken. Thereafter,

tion, or to the failure to limit such the officer shall seal the deposition,

scope, he shall state briefly the with two copies thereof, in an enve

grounds for such objection. Rulings on lope and mail the same by registered

all objections shall appear in the mail to the presiding hearing examin

record. Only objections made before er. Subject to such objections to the

the presiding hearing examiner may questions and answers as were noted

be relied upon subsequently in a proat the time of taking the deposition

ceeding. and would be valid were the witness personally present and testifying, such

(4) Exceptions. Formal exception to deposition may be read and offered in

an adverse ruling is not required. evidence by the party taking it as

(d) Official notice. Official notice against any party who was present,

may be taken of any material fact not represented at the taking of the depo

appearing in evidence in the record, sition, or who had due notice thereof.

which is among the traditional matNo part of a deposition shall be admit

ters of judicial notice or concerning ted in evidence unless there is a show

which the Department of Labor by ing that the reasons for the taking of

reason of its functions is presumed to the deposition in the first instance

be expert: Provided, That the parties exist at the time of hearing. •

shall be given adequate notice, at the (b) Other discovery. Whenever ap

hearing or by reference in the presidpropriate to a just disposition of any

ing hearing examiner's decision, of the issue in a hearing, the presiding hear

matters so noticed, and shall be given ing examiner may allow discovery by

adequate opportunity to show the conany other appropriate procedure, such

trary. as by written interrogatories upon a

(e) Transcript. Hearings shall be party, production of documents by a stenographically reported. Copies of party, or by entry for inspection of the the transcript may be obtained by the employment or place of employment parties upon written application filed involved.

with the reporter, and upon the pay

ment of fees at the rate provided in 8 1905.26 Hearings.

the agreement with the reporter. (a) Order of proceeding. Except as may be ordered otherwise by the pre

8 1905.27 Decisions of hearing examiners. siding hearing examiner, the party ap- (a) Proposed findings of fact, concluplicant for relief shall proceed first at sions, and rules or orders. Within 10 a hearing.

days after receipt of notice that the (b) Burden of proof. The party appli- transcript of the testimony has been cant shall have the burden of proof. filed or such additional time as the

(c) Evidence-(1) Admissibility. A presiding hearing examiner may allow, party shall be entitled to present his each party may file with the hearing case or defense by oral or documenta- examiner proposed findings of fact, ry evidence, to submit rebuttal evi- conclusions of law, and rule or order,

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at the hearing, together with the exhibits admitted in evidence, any documents or papers filed in connection with prehearing conferences, such proposed findings of fact, conclusions of law, rules or orders, and supporting reasons, as may have been filed, the hearing examiner's decision, and such exceptions, statements of objections, and briefs in support thereof, as may have been filed in the proceeding.

are

together with a supporting brief expressing the reasons for such proposals. Such proposals and brief shall be served on all other parties, and shall refer to all portions of the record and to all authorities relied upon in support of each proposal.

(b) Decision of the hearing examiner. Within a reasonable time after the time allowed for the filing of proposed findings of fact, conclusions of law, and rule or order, the presiding hearing examiner shall make and serve upon each party his decision, which shall become final upon the 20th day after service thereof, unless exceptions

filed thereto, as provided in $ 1905.28. T'he decision of the hearing examiner shall include (1) a statement of findings and conclusions, with reasons and bases therefor, upon each material issue of fact, law, or discretion presented on the record, and (2) the appropriate rule, order, relief, or denial thereof. The decision of the hearing examiner shall be based upon a consideration of the whole record and shall state all facts officially noticed and relied upon. It shall be made on the basis of a preponderance of reliable and probative evidence. 8 1905.28 Exceptions.

Within 20 days after service of a decision of a presiding hearing examiner, any party may file with the hearing examiner written exceptions thereto with supporting reasons. Such exceptions shall refer to the specific findings of fact, conclusions of law, or terms of the rule or order excepted to, the specific pages of transcript relevant to the suggestions, and shall sug. gest corrected findings of fact, conclusions of law, or terms of the rule or order. Upon receipt of any exceptions, the hearing examiner shall fix a time for filing any objections to the exceptions and any supporting reasons.

8 1905.30 Decision of the Assistant Secre

tary. If exceptions to a decision of a hear. ing examiner are taken pursuant to $ 1905.28, the Assistant Secretary shall upon consideration thereof, together with the record references and authorities cited in support thereof, and any objections to exceptions and supporting reasons, make his decision. The decision may affirm, modify, or set aside, in whole or part, the findings, conclusions, and the rule or order contained in the decision of the presiding hearing examiner, and shall include a statement of reasons or bases for the actions taken on each exception presented.

Subpart D-Summary Decisions

$ 1905.40 Motion for summary decision.

(a) Any party may, at least 20 days before the date fixed for any hearing under subpart C of this part, move with or without supporting affidavits for a summary decision in his favor on all or any part of the proceeding. Any other party may, within 10 days after service of the motion, serve opposing affidavits or countermove for summary decision. The presiding hearing examiner may, in his discretion, set the matter for argument and call for the submission of briefs.

(b) The filing of any documents under paragraph (a) of this section shall be with the hearing examiner, and copies of any such documents shall be served in accordance with $ 1905.21.

(c) The hearing examiner may grant such motion if the pleadings, affidavits, material obtained by discovery or otherwise obtained, or matters officially noticed show that there is no genu

8 1905.29 Transmission of record.

If exceptions are filed, the hearing examiner shall transmit the record of the proceeding to the Assistant Secretary for review. The record shall include: The application, any request for hearing thereon, motions and requests filed in written form, rulings thereon, the transcript of the testimony taken

ine issue as to any material fact and that a party is entitled to summary decision. The hearing examiner may deny such motion whenever the moving party denies access to information by means of discovery to a party opposing the motion.

(d) Affidavits shall set forth such facts as would be admissible in evidence in a proceeding subject to 5 U.S.C. 556 and 557 and shall show af. firmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his pleading; his response must set forth specific facts showing that there is a genuine issue of fact for the hearing.

(e) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the hearing examiner may deny the motion for summary decision or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

(f) The denial of all or any part of a motion for summary decision by the hearing examiner shall not be subject to interlocutory appeal to the Assistant Secretary unless the hearing examiner certifies in writing (1) that the ruling involves an important question of law or policy as to which there is substantial ground for difference of opinion, and (2) that an immediate appeal from the ruling may materially advance the ultimate termination of the proceeding. The allowance of such an interlocutory appeal shall not stay the proceeding before the hearing examiner unless the Assistant Secretary shall so order.

ing examiner shall fix a time for filing any objections to the exception and any supporting reasons. Thereafter, the Assistant Secretary, after consideration of the exceptions and any supporting briefs filed therewith and of any objections to the exceptions and any supporting reasons, may issue a final decision.

(2) An initial decision and a final de. cision made under this paragraph shall include a statement of:

(i) Findings and conclusions, and the reasons or bases therefor, on all issues presented; and

(ii) The terms and conditions of the rule or order made.

(3) A copy of an initial decision and a final decision under this paragraph shall be served on each party.

(b) Hearings on issues of fact. Where a genuine material question of fact is raised, the hearing examiner shall, and in any other case he may, set the case for an evidentiary hearing in accordance with subpart C of this part.

Subpart E-Effect of Initial Decisions

8 1905.50 Effect of appeal of a hearing ex

aminer's decision. A hearing examiner's decision under this part shall not be operative pending a decision on appeal by the Assistant Secretary.

8 1905.51 Finality for purposes of judicial

review. Only a decision by the Assistant Secretary shall be deemed final agency action for purposes of judicial review. A decision by a hearing examiner which becomes final for lack of appeal is not deemed final agency action for purposes of 5 U.S.C. 704.

PART 1906-ADMINISTRATION WIT

NESSES AND DOCUMENTS IN PRI-
VATE LITIGATION (RESERVED

PART 1908-CONSULTATION

AGREEMENTS

8 1905.41 Summary decision.

(a) No genuine issue of material fact. (1) Where no genuine issue of a material fact is found to have been raised, the hearing examiner may issue an initial decision to become final 20 days after service thereof, unless, within such period of time any party has filed written exceptions to the decision. If any timely exception is filed, the hear

Sec. 1908.1 Purpose and scope. 1908.2 Definitions. 1908.3 Eligibility and funding. 1908.4 Offsite consultation.

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