cable requirements of Executive Order 11246, and rules, regulations, and orders thereunder. In case it appears from respondent's answer to the notice of hearing, from his failure timely to answer, or from his admissions or stipulations, that there are no matters of material fact in dispute, the hearing officer or the reviewing authority may enter an order so finding, vacating the hearing date, and fixing the time for filing briefs under § 82.35. Thereafter the proceedings shall go to conclusion in accordance with §§ 82.35 through 82.43. Within 10 days of its issuance, an order vacating the hearing date may be appealed to the reviewing authority, and the reviewing authority shall affirm, modify, or set aside such order within 28 days thereafter.

[38 FR 998, Jan. 8, 1973]

§ 82.23 EVIDENCE

Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded from the record of a hearing. Hearsay evidence shall not be inadmissible as such.

$82.24 TESTIMONY

Testimony shall be given orally by witnesses at the hearing, but may, in the discretion of the hearing officer, be prepared in writing and served on all parties to the hearing. A witness shall be available for cross-examination, and, at the discretion of the hearing officer, may be cross-examined without regard to the scope of direct examination as to any matter which is material to the proceeding.

$82.25 EXHIBITS

Proposed exhibits shall be exchanged at a prehearing conference, or otherwise prior to the hearing, if the hearing officer so requires. Proposed exhibits not so exchanged may be denied admission as evidence. The authenticity of all proposed exhibits will be deemed admitted unless written objection thereto is filed, or unless good cause is shown for failure to file such written objection.

§ 82.26 ADMISSIONS AS TO FACTS AND DOCUMENTS

Not later than 15 days prior to the date of the hearing except for good cause shown, or not later than 15 days prior to such earlier date as the hearing officer may order, 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 of the matters as to which an admission is requested shall be deemed admitted, unless within a period designated in the request (not less than 10 days after service thereof) the party to whom the request is directed serves upon the requesting party a sworn 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.

$82.27 OBJECTIONS

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

§ 82.28 EXCEPTIONS TO RULINGS OF HEARING OFFICER NOT NECESSARY Exceptions to rulings of the hearing officer are unnecessary. It is sufficient that a party, at the time the ruling of the hearing officer is sought, makes know the action which he desires the hearing officer to take, or his objection to an action taken, and the grounds therefor.

$82.29 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 hearing officer; provided that where official notice is taken or requested to be taken of a fact not appearing in the evidence of record, any party, on timely request, shall be permitted to show the contrary.

§ 82.30 OFFER OF PROOF

An offer of proof made in connection with an objection taken to any ruling of the hearing officer excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, 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.

§ 82.31 INTERLOCUTORY APPEALS

Except as specifically provided in these rules, appeals shall not be made of any ruling of the hearing officer except following the entire hearing and the hearing officer's recommended findings, conclusions, and decision.

§ 82.32 EX PARTE COMMUNICATIONS

The hearing officer shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate. No employee or agent of the Federal Government engaged in the investigation and prosecution of this case shall participate or advise in the rendering of the recommended or final decision, except as witness or counsel in the proceeding.

The Record

$82.33 OFFICIAL TRANSCRIPT

The Department will designate the official reporter for all hearings. The official transcripts of testimony and argument, together with any exhibits, briefs, or memoranda of law filed therewith, shall be filed with the hearing clerk. Transcripts may be obtained from the official reporter by the parties and the public at rates not to exceed the applicable rates fixed by the contract between the Department and the reporter. Upon notice to all parties, the hearing officer may authorize such corrections to the transcript as are necessary to accurately reflect the testimony.

$82.34 RECORD FOR DECISION

The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, except the correspondence section of the docket, including rulings and the recommended findings, conclusions, and decision, shall constitute the record for decision.

Posthearing Procedures

$82.35 PROPOSED FINDINGS OF FACT AND CONCLUSIONS

Within 20 days after receipt of the transcript of the testimony, and such additional time as the hearing officer may allow, each party may file proposed findings of fact and conclusions of law, and a proposed order, together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs shall be filed and served on all parties and amici curiae. Reply briefs may be submitted within 10 days after receipt of the initial briefs and proposals, and shall be filed and served in like manner.

§ 82.36 RECOMMENDED DECISION OF HEARING OFFICER

Within 30 days after the time for filing reply briefs or, if the parties elect not to file briefs, within 30 days after the receipt of the hearing transcript, the hearing officer shall recommend findings of fact, conclusions of law, and a decision based on the record for decision. These recommendations shall be certified, together with the record for decision, to the reviewing authority for its decision. The recommended findings, conclusions, and decision of the hearing officer shall be served on all parties and amici curiae to the proceeding.

$82.37 REVIEWING AUTHORITY JURISDICTION

Following the issuance of the hearing officer's recommended decision, all motions and petitions in the matter should be addressed to the reviewing authority, which shall have the authority to act on them consistent with these regulations,

Executive Order 11246, and rules, regulations, and orders thereunder. Such jurisdiction shall continue until the Secretary is requested to review the reviewing authority's decision, the Secretary decides to review such decision on his own motion, or the decision becomes the decision of the Department, whichever comes first.

Within 20 days after receipt of the hearing officer's recommended decision, all parties to the proceeding shall have an opportunity to submit to the reviewing authority briefs in support of, or in exception to, the recommended findings, conclusions, and decision of the hearing officer. These briefs may be responded to by other parties, within 10 days of their receipt by such parties. Such briefs or exceptions and reply briefs shall be filed and served on all parties and amici curiae to the proceding.

§ 82.39 ORAL ARGUMENT BEFORE THE REVIEWING AUTHORITY

(a) The reviewing authority shall have discretion, at its own initiative and within the limits described in this section, to direct the parties to argue a case orally. Oral argument shall not be directed, or received, except as necessary to clarify the written arguments in briefs in support or exceptions, and replies to these documents (see § 82.38). The reviewing authority shall, within these limits, define the scope and subject matter of the scope and subject matter of oral argument in each case. Where the reviewing authority directs oral argument, it shall have the discretion to extend, up to 30 days, the time for rendering its decision under § 82.40.

(b) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the hearing clerk at least 7 days before the argument.

$82.40 REVIEWING AUTHORITY'S DECISION

Within 60 days after the time for filing of reply briefs to support briefs and exception briefs, or 90 days from the date of the hearing officers decision if no briefs are filed, the reviewing authority shall render its own decision. This decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the hearing officer and shall be based on the record for decision.

(a) Within 20 days of the date of the reviewing authority's decision, any party to the proceeding may request the Secretary to review that decision. Such review is not a matter of right, and may be granted by the Secretary only where he determines that the decision of the reviewing authority raises significant issues of law or public policy. The Secretary may grant or deny such request in whole or in part. The Secretary shall also have discretion to review any decision of the reviewing authority on his own motion. If the Secretary grants the requested review, or if he serves notice of intent to review upon his own motion, each party to the proceeding shall have 20 days, following notice of the Secretary's decision to review, within which to file briefs in exception to the decision of the reviewing authority, or briefs in support of the reviewing authority's decision. The Secretary shall thereafter render the De partment's decision. Failure of a party to request review under this paragraph shall not be deemed a failure to exhaust administrative remedies for the purpose of obtaining judicial review.

(b) After the Secretary has been requested to review a matter under paragraph (a) of this section, or has given notice of his intent to review a matter on his own motion, whichever comes first, all motions and petitions shall be addressed to him. He shall act on them consistent with these regulations, Executive Order 11246, and rules, regulations and orders thereunder. Such jurisdiction shall continue until the Secretary issues the decision of the Department.

§ 82.42 FINAL DECISION

The decision of the reviewing authority shall become the decision of the Department in the event no appeal is made by any party within 20 days after the date of the reviewing authority's decision and the Secretary does not notify the parties within 35 days after the date of the reviewing authority's decision that he will otherwise review the decision.

§ 82.43

APPROVAL OF DEPARTMENT DECISION BY DIRECTOR, OFFICE OF
FEDERAL CONTRACT COMPLIANCE

No decision of the Department shall become final without the approval of the Director of the Office of Federal Contract Compliance.

PART 83-NONDISCRIMINATION ON THE BASIS OF SEX IN TRAINING PROGRAMS IN ENTITIES FUNDED UNDER TITLES VII AND VIII OF THE PUBLIC HEALTH SERVICE Аст

§ 83.1 ASSURANCES REQUIRED

No grant, loan guarantee, or interest subsidy payment under titles VII or VIII of the Public Health Service Act shall be made to or for the benefit of any entity, and no contract under titles VII or VIII of the Public Health Service Act shall be made with any entity unless the entity furnishes assurances satisfactory to the Director, Office for Civil Rights, that the entity will not discriminate on the basis of sex in the admission of individuals to its training programs.

(Public Health Service Act sec. 215, 58 Stat. 690, as amended, 42 U.S.C. 216) [37 F.R. 10938, June 1, 1972; 37 F.R. 11577, June 9, 1972]

(a) The term "person" includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.

(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5 of the United States Code), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501 (c) of the Internal Revenue Code of 1954, except that during the first year after the date of enactment of the Equal Employment Opportunity Act of 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.

(e) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate

1 Includes 1972 amendments made by P.L. 92-261 printed in italic.

and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after the date of enactment of the Equal Employment Opportunity Act of 1972, or (B) fifteen or more thereafter, and such labor organization

(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended, or the Railway Labor Act, as amended;

(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting

commerce; or

(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or

(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection. (f) The term "employee" means an individual employed by an employer, except that the term 'employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.

(g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.

(h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959, and further includes any governmental industry, business, or activity.

(i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lauds defined in the Outer Continental Shelf Lands Act.

(j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's, religious observance or practice without undue hardship on the conduct of the employer's business.

EXEMPTION

SEC. 702. This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association,