[Federal Register Volume 62, Number 69 (Thursday, April 10, 1997)]
[Rules and Regulations]
[Pages 17542-17548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9162]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1603

RIN 3046-AA45


Procedures for Previously Exempt State and Local Government 
Employee Complaints of Employment Discrimination Under the Government 
Employee Rights Act of 1991

AGENCY: Equal Employment Opportunity Commission.

ACTION: Interim rule.

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SUMMARY: Title III of the Civil Rights Act of 1991, entitled the 
Government Employee Rights Act of 1991, extends the protections against 
employment discrimination based on race, color, religion, sex, national 
origin, age and disability to previously exempt state and local 
government employees. This interim rule establishes EEOC procedures for 
resolving employment discrimination complaints filed by those 
individuals.

DATES: This rule will become effective on April 10, 1997. Written 
comments on the interim rule must be received on or before June 9, 
1997.


[[Page 17543]]


ADDRESSES: Comments should be submitted to the Office of the Executive 
Secretariat, Equal Employment Opportunity Commission, 1801 L Street, 
N.W., Washington, D.C. 20507. Copies of comments submitted by the 
public will be available for review at the Commission's library, room 
6502, 1801 L Street, N.W., Washington, D.C. between the hours of 9:30 
a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Nicholas M. Inzeo, Deputy Legal 
Counsel, Thomas J. Schlageter, Assistant Legal Counsel or Stephanie D. 
Garner, Senior Attorney, at (202) 663-4669 or TDD (202) 663-7026. This 
notice is also available in the following formats: Large print, 
braille, audio tape and electronic file on computer disk. Requests for 
this notice in an alternative format should be made to the Publications 
Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION: Title III of the Civil Rights Act of 1991 
contains the Government Employee Rights Act of 1991. 2 U.S.C. 1201 et 
seq. Section 321 of the Government Employee Rights Act of 1991 (the 
Act) provides new equal employment opportunity protections for 
previously exempt state and local government employees. The Act 
designates the Equal Employment Opportunity Commission as the 
enforcement agency for previously exempt state and local government 
employees covered by section 321. 2 U.S.C. 1220.
    Section 321 of the Act provides for an administrative enforcement 
mechanism that is different from EEOC's normal charge resolution 
procedures contained in 29 C.F.R. Part 1601. Under section 321, a 
covered individual who believes he or she was discriminated against has 
180 days to file a complaint. Thereafter, the Act provides that the 
matter be processed in accordance with the formal adjudication 
principles and procedures set forth in sections 554 through 557 of the 
Administrative Procedure Act, 5 U.S.C. 554-557. Section 321 provides 
for judicial review of a Commission final order under chapter 158 of 
title 28 of the United States Code.
    This interim rule sets out the Commission's procedures for handling 
complaints brought by individuals covered by section 321 of the Act. 
The filing procedures for complaints follow established Commission 
procedures for charges published at 29 CFR Part 1601. Previously exempt 
state and local government employees may file a complaint with the 
Commission at its offices in Washington, D.C. or any of its field 
offices. The Commission will review each complaint for jurisdiction 
under section 321 and dismiss those complaints that fail to state a 
claim. EEOC may refer a complaint from a previously exempt state or 
local government employee to a neutral mediator or to any other 
alternative dispute resolution process. EEOC may investigate a 321 
complaint using a variety of fact-finding methods. In an investigation, 
EEOC can issue subpoenas for the production of evidence or witnesses. 
EEOC's existing subpoena procedures, found at 29 CFR 1601.16, will 
apply to subpoenas issued under this part. The investigative procedures 
of this rule are modeled after those in Part 1601 of this Chapter. It 
is the Commission's intention to apply these procedures consistently 
with its application of the Part 1601 procedures.
    If the complaint is not dismissed or resolved during mediation or 
investigation, the Commission will send the complaint to an 
administrative law judge for formal adjudication in accordance with the 
Administrative Procedure Act. Discovery under this part will be 
conducted in accordance with the Federal Rules of Civil Procedure and 
the administrative law judge will accept evidence in accordance with 
the Federal Rules of Evidence, except that the rules on hearsay will 
not be strictly applied. The administrative law judge will issue a 
decision within 270 days after referral of a complaint for hearing.
    Within 30 days of issuance, any party may appeal the dismissal of a 
complaint, a matter certified for interlocutory review, an 
administrative law judge's denial of a motion for withdrawal or a 
decision of an administrative law judge to the Commission. After the 
parties have briefed the issues, the Commission will issue a final 
order. In the absence of a timely appeal, the final decision of the 
administrative law judge will become the final order of the Commission. 
Previously exempt state and local government employees may seek 
judicial review of an EEOC final order within 60 days after its 
issuance in the judicial circuit in which the petitioner resides, or 
has its principle office, or in the United States Court of Appeals for 
the District of Columbia Circuit.
    The Commission is publishing part 1603 as an interim rule to 
provide for immediate processing of complaints already filed under 
section 321 of the Act. The Commission will consider all comments 
received on part 1603 and, if necessary, will publish a revised final 
rule.

Executive Order 12866

    In promulgating the interim rule implementing section 321 of the 
Act, the Commission has adhered to the regulatory philosophy and the 
applicable principles of regulation set forth in section 1 of Executive 
Order 12866, Regulatory Planning and Review. In addition, it has been 
determined that this regulation is not a significant regulatory action 
within the meaning of section 3(f).

Regulatory Flexibility Act

    As Chairman of the Equal Employment Opportunity Commission, I 
certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that 
this interim rule will not have a significant economic impact on a 
substantial number of small entities because it establishes procedures 
for complaints of discrimination by formerly exempt state and local 
government employees.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) does not apply 
to this interim rule because it does not contain information collection 
requirements that require the approval of the Office of Management and 
Budget.

List of Subjects in 29 CFR Part 1603

    Administrative practice and procedure, Equal employment 
opportunity, Intergovernmental relations, Investigations, State and 
local governments.

    For the Commission.
Gilbert F. Casellas,
Chairman.

    For the reasons set forth in the preamble, title 29, chapter XIV of 
the Code of Federal Regulations is amended by adding part 1603 to read 
as follows:

PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL 
GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER 
SECTION 321 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991

Sec.
1603.100  Purpose.

Subpart A--Administrative Process

1603.101  Coverage.
1603.102  Filing a complaint.
1603.103  Referral of complaints.
1603.104  Service of the complaint.
1603.105  Withdrawal of a complaint.
1603.106  Computation of time.
1603.107  Dismissals of complaints.
1603.108  Settlement and alternative dispute resolution.
1603.109  Investigations.

[[Page 17544]]

Subpart B--Hearings

1603.201  Referral and scheduling for hearing.
1603.202  Administrative law judge.
1603.203  Unavailability or withdrawal of administrative law judges.
1603.204  Ex parte communications.
1603.205  Separation of functions.
1603.206  Consolidation and severance of hearings.
1603.207  Intervention.
1603.208  Motions.
1603.209  Filing and service.
1603.210  Discovery.
1603.211  Subpoenas.
1603.212  Witness fees.
1603.213  Interlocutory review.
1603.214  Evidence.
1603.215  Record of hearings.
1603.216  Summary decision.
1603.217  Decision of the administrative law judge.

Subpart C--Appeals

1603.301  Appeal to the Commission.
1603.302  Filing an appeal.
1603.303  Briefs on appeal.
1603.304  Commission decision.
1603.305  Modification or withdrawal of Commission decision.
1603.306  Judicial review.

    Authority: 2 U.S.C. 1220.


Sec. 1603.100  Purpose.

    This part contains the regulations of the Equal Employment 
Opportunity Commission (hereinafter the Commission) for processing 
complaints of discrimination filed under section 321 of the Government 
Employee Rights Act, 2 U.S.C. 1220.

Subpart A--Administrative Process


Sec. 1603.101  Coverage.

    Section 321 of the Government Employee Rights Act of 1991 applies 
to employment, which includes application for employment, of any 
individual chosen or appointed by a person elected to public office in 
any State or political subdivision of any State by the qualified voters 
thereof:
    (a) To be a member of the elected official's personal staff;
    (b) To serve the elected official on the policymaking level; or
    (c) To serve the elected official as an immediate advisor with 
respect to the exercise of the constitutional or legal powers of the 
office.


Sec. 1603.102  Filing a complaint.

    (a) Who may make a complaint. Individuals referred to in 
Sec. 1603.101 who believe they have been discriminated against on the 
basis of race, color, religion, sex, national origin, age or disability 
or retaliated against for opposing any practice made unlawful by 
federal laws protecting equal employment opportunity or for 
participating in any stage of administrative or judicial proceedings 
under federal laws protecting equal employment opportunity may file a 
complaint not later than 180 days after the occurrence of the alleged 
discrimination.
    (b) Where to file a complaint. A complaint may be filed in person 
or by mail or by facsimile machine to the offices of the Commission in 
Washington, D.C., or any of its field offices or with any designated 
agent or representative of the Commission. The addresses of the 
Commission's field offices appear in 29 CFR 1610.4.
    (c) Contents of a complaint. A complaint shall be in writing, 
signed and verified. In addition, each complaint should contain the 
following:
    (1) The full name, address and telephone number of the person 
making the complaint;
    (2) The full name and address of the person, governmental entity or 
political subdivision against whom the complaint is made (hereinafter 
referred to as the respondent);
    (3) A clear and concise statement of the facts, including pertinent 
dates, constituting the alleged unlawful employment practices (See 29 
CFR 1601.15(b)); and
    (4) A statement disclosing whether proceedings involving the 
alleged unlawful employment practice have been commenced before a State 
or local FEP agency charged with the enforcement of fair employment 
practice laws and, if so, the date of such commencement and the name of 
the agency.
    (d) Amendment of a complaint. Notwithstanding paragraph (c) of this 
section, a complaint is sufficient when the Commission receives from 
the person making the complaint a written statement sufficiently 
precise to identify the parties and to describe generally the alleged 
discriminatory action or practices. A complaint may be amended to cure 
technical defects or omissions, including failure to verify the 
complaint, or to clarify and amplify its allegations. Such amendments, 
and amendments alleging additional acts that constitute discriminatory 
employment practices related to or growing out of the subject matter of 
the original complaint, will relate back to the date the complaint was 
first received. A complaint that has been amended after it was referred 
shall not be again referred to the appropriate state or local fair 
employment practices agency.
    (e) Misfiled complaint. A charge filed pursuant to 29 CFR part 1601 
or part 1626, that is later deemed to be a matter under this part, 
shall be processed as a complaint under this part and shall relate back 
to the date of the initial charge or complaint. A complaint filed under 
this part that is later deemed to be a matter under 29 CFR part 1601 or 
part 1626 shall be processed as a charge under the appropriate 
regulation and shall relate back to the date of the initial complaint.


Sec. 1603.103  Referral of complaints.

    (a) The Commission will notify an FEP agency, as defined in 29 CFR 
1601.3(a), when a complaint is filed by a state or local government 
employee or applicant under this part concerning an employment practice 
within the jurisdiction of the FEP agency. The FEP agency will be 
entitled to process the complaint exclusively for a period of not less 
than 60 days if the FEP agency makes a written request to the 
Commission within 10 days of receiving notice that the complaint has 
been filed, unless the complaint names the FEP agency as the 
respondent.
    (b) The Commission may enter into an agreement with an FEP agency 
that authorizes the FEP agency to receive complaints under this part on 
behalf of the Commission, or waives the FEP agency's right to exclusive 
processing of complaints.


Sec. 1603.104  Service of the complaint.

    Upon receipt of a complaint, the Commission shall promptly serve 
the respondent with a copy of the complaint.


Sec. 1603.105  Withdrawal of a complaint.

    The complainant may withdraw a complaint at any time by so advising 
the Commission in writing.


Sec. 1603.106  Computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely if it is delivered by 
facsimile not exceeding 20 pages, in person or postmarked before the 
expiration of the applicable filing period, or, in the absence of a 
legible postmark, if it is received by mail within five days of the 
expiration of the applicable filing period.
    (c) All time limits in this part are subject to waiver, estoppel 
and equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the time period begins to run and the last day of the period 
shall be included unless it falls on a Saturday, Sunday or federal 
holiday, in which case the period shall be extended to include the next 
business day.

[[Page 17545]]

Sec. 1603.107  Dismissals of complaints.

    (a) Where a complaint on its face, or after further inquiry, is 
determined to be not timely filed or otherwise fails to state a claim 
under this part, the Commission shall dismiss the complaint.
    (b) Where the complainant cannot be located, the Commission may 
dismiss the complaint provided that reasonable efforts have been made 
to locate the complainant and the complainant has not responded within 
30 days to a notice sent by the Commission to the complainant's last 
known address.
    (c) Where the complainant fails to provide requested information, 
fails or refuses to appear or to be available for interviews or 
conferences as necessary, or otherwise refuses to cooperate, the 
Commission, after providing the complainant with notice and 30 days in 
which to respond, may dismiss the complaint.
    (d) Written notice of dismissal pursuant to paragraphs (a), (b), or 
(c) of this section shall be issued to the complainant and the 
respondent. The Commission hereby delegates authority to the Program 
Director, Office of Program Operations, or to his or her designees, and 
District Directors, or to their designees, to dismiss complaints.
    (e) A complainant who is dissatisfied with a dismissal issued 
pursuant to paragraphs (a), (b), or (c) of this section may appeal to 
the Commission in accordance with the procedures in subpart C of this 
part.


Sec. 1603.108  Settlement and alternative dispute resolution.

    (a) The parties are at all times free to settle all or part of a 
complaint on terms that are mutually agreeable. Any settlement reached 
shall be in writing and signed by both parties and shall identify the 
allegations resolved. A copy of any settlement shall be served on the 
Commission.
    (b) With the agreement of the parties, the Commission may refer a 
complaint to a neutral mediator or to any other alternative dispute 
resolution process authorized by the Administrative Dispute Resolution 
Act, 5 U.S.C. 571 to 583, or other statute.
    (c) The Commission may use the services of the Federal Mediation 
and Conciliation Service, other federal agencies, appropriate 
professional organizations, employees of the Commission and other 
appropriate sources in selecting neutrals for alternative dispute 
resolution processes.
    (d) The alternative dispute resolution process shall be strictly 
confidential, and no party to a complaint or neutral shall disclose any 
dispute resolution communication or any information provided in 
confidence to the neutral except as provided in 5 U.S.C. 584.


Sec. 1603.109  Investigations.

    (a) Before referring a complaint to an administrative law judge 
under section 201 of this part, the Commission may conduct 
investigation using an exchange of letters, interrogatories, fact-
finding conferences, interviews, on-site visits or other fact-finding 
methods that address the matters at issue.
    (b) During an investigation of a complaint under this part, the 
Commission shall have the authority to sign and issue a subpoena 
requiring the attendance and testimony of witnesses, the production of 
evidence and access to evidence for the purposes of examination and the 
right to copy. The subpoena procedures contained in 29 CFR 1601.16 
shall apply to subpoenas issued pursuant to this section.

Subpart B--Hearings


Sec. 1603.201  Referral and scheduling for hearing.

    (a) Upon request by the complainant under paragraph (b) of this 
section or if the complaint is not dismissed or resolved under subpart 
A of this part, on behalf of the Commission, the Office of Federal 
Operations shall transmit the complaint file to an administrative law 
judge, appointed under 5 U.S.C. 3105, for a hearing.
    (b) If the complaint has not been referred to an administrative law 
judge within 180 days after filing, the complainant may request that 
the complaint be immediately transmitted to an administrative law judge 
for a hearing.
    (c) The administrative law judge shall fix the time, place, and 
date for the hearing with due regard for the convenience of the 
parties, their representatives or witnesses and shall notify the 
parties of the same.


Sec. 1603.202  Administrative law judge.

    The administrative law judge shall have all the powers necessary to 
conduct fair, expeditious, and impartial hearings as provided in 5 
U.S.C. 556(c). In addition, the administrative law judge shall have the 
power to:
    (a) Change the time, place or date of the hearing;
    (b) Enter a default decision against a party failing to appear at a 
hearing unless the party shows good cause by contacting the 
administrative law judge and presenting arguments as to why the party 
or the party's representative could not appear either prior to the 
hearing or within two days after the scheduled hearing; and
    (c) Take any appropriate action authorized by the Federal Rules of 
Civil Procedure (28 U.S.C. appendix).


Sec. 1603.203  Unavailability or withdrawal of administrative law 
judges.

    (a) In the event the administrative law judge designated to conduct 
the hearing becomes unavailable or withdraws from the adjudication, 
another administrative law judge may be designated for the purpose of 
further hearing or issuing a decision on the record as made, or both.
    (b) The administrative law judge may withdraw from the adjudication 
at any time the administrative law judge deems himself or herself 
disqualified. Prior to issuance of the decision, any party may move 
that the administrative law judge withdraw on the ground of personal 
bias or other disqualification, by filing with the administrative law 
judge promptly upon discovery of the alleged facts an affidavit setting 
forth in detail the matters alleged to constitute grounds for 
withdrawal.
    (c) The administrative law judge shall rule upon the motion for 
withdrawal. If the administrative law judge concludes that the motion 
is timely and has merit, the administrative law judge shall immediately 
withdraw from the adjudication. If the administrative law judge does 
not withdraw, the adjudication shall proceed.


Sec. 1603.204  Ex parte communications.

    (a) Oral or written communications concerning the merits of an 
adjudication between the administrative law judge or decision-making 
personnel of the Commission and an interested party to the adjudication 
without providing the other party a chance to participate are 
prohibited from the time the matter is assigned to an administrative 
law judge until the Commission has rendered a final decision. 
Communications concerning the status of the case, the date of a 
hearing, the method of transmitting evidence to the Commission and 
other purely procedural questions are permitted.
    (b) Decision-making personnel of the Commission include members of 
the Commission and their staffs and personnel in the Office of Federal 
Operations, but do not include investigators and intake staff.
    (c) Any communication made in violation of this section shall be 
made part of the record and an opportunity for rebuttal by the other 
party allowed. If the communication was oral, a memorandum stating the 
substance of the discussion shall be placed in the record.
    (d) Where it appears that a party has engaged in prohibited ex 
parte

[[Page 17546]]

communications, that party may be required to show cause why, in the 
interest of justice, his or her claim or defense should not be 
dismissed, denied or otherwise adversely affected.


Sec. 1603.205  Separation of functions.

    (a) The administrative law judge may not be responsible to or 
subject to the supervision or direction of a Commission employee 
engaged in investigating complaints under this part.
    (b) No Commission employee engaged in investigating complaints 
under this part shall participate or advise in the decision of the 
administrative law judge, except as a witness or counsel in the 
adjudication, or its appellate review.


Sec. 1603.206  Consolidation and severance of hearings.

    (a) The administrative law judge may, upon motion by a party or 
upon his or her own motion, after providing reasonable notice and 
opportunity to object to all parties affected, consolidate any or all 
matters at issue in two or more adjudications docketed under this part 
where common parties, or factual or legal questions exist; where such 
consolidation would expedite or simplify consideration of the issues; 
or where the interests of justice would be served. For purposes of this 
section, no distinction is made between joinder and consolidation of 
adjudications.
    (b) The administrative law judge may, upon motion of a party or 
upon his or her own motion, for good cause shown, order any 
adjudication severed with respect to some or all parties, claims or 
issues.


Sec. 1603.207  Intervention.

    (a) Any person or entity that wishes to intervene in any proceeding 
under this subpart shall file a motion to intervene in accordance with 
Sec. 1603.208.
    (b) A motion to intervene shall indicate the question of law or 
fact common to the movant's claim or defense and the complaint at issue 
and state all other facts or reasons the movant should be permitted to 
intervene.
    (c) Any party may file a response to a motion to intervene within 
15 days after the filing of the motion to intervene.


Sec. 1603.208  Motions.

    (a) All motions shall state the specific relief requested. All 
motions shall be in writing, except that a motion may be made orally 
during a conference or during the hearing. After providing an 
opportunity for response, the administrative law judge may rule on an 
oral motion immediately or may require that it be submitted in writing.
    (b) Unless otherwise directed by the administrative law judge, any 
other party may file a response in support of or in opposition to any 
written motion within ten (10) business days after service of the 
motion. If no response is filed within the response period, the party 
failing to respond shall be deemed to have waived any objection to the 
granting of the motion. The moving party shall have no right to reply 
to a response, unless the administrative law judge, in his or her 
discretion, orders that a reply be filed.
    (c) Except for procedural matters, the administrative law judge may 
not grant a written motion prior to the expiration of the time for 
filing responses. The administrative law judge may deny a written 
motion without awaiting a response. The administrative law judge may 
allow oral argument (including that made by telephone) on written 
motions. Any party adversely affected by the ex parte grant of a motion 
for a procedural order may request, within five (5) business days of 
service of the order, that the administrative law judge reconsider, 
vacate or modify the order.
    (d) The administrative law judge may summarily deny dilatory, 
repetitive or frivolous motions. Unless otherwise ordered by the 
administrative law judge, the filing of a motion does not stay the 
proceeding.
    (e) All motions and responses must comply with the filing and 
service requirements of Sec. 1603.209.


Sec. 1603.209  Filing and service.

    (a) Unless otherwise ordered by the administrative law judge, a 
signed original of each motion, brief or other document shall be filed 
with the administrative law judge, with a certificate of service 
indicating that a copy has been sent to all other parties, and the date 
and manner of service. All documents shall be on standard size (8\1/2\ 
x  11) paper. Each document filed shall be clear and legible.
    (b) Filing and service shall be made by first class mail or other 
more expeditious means of delivery, including, at the discretion of the 
administrative law judge, by facsimile. The administrative law judge, 
may in his discretion, limit the number of pages that may be filed or 
served by facsimile. Service shall be made on a party's representative, 
or, if not represented, on the party.
    (c) Every document shall contain a caption, the complaint number or 
docket number assigned to the matter, a designation of the type of 
filing (e.g., motion, brief, etc.), and the filing person's signature, 
address, telephone number and telecopier number, if any.


Sec. 1603.210  Discovery.

    (a) Unless otherwise ordered by the administrative law judge, 
discovery may begin as soon as the complaint has been transmitted to 
the administrative law judge pursuant to Sec. 1603.201. Discovery shall 
be completed as expeditiously as possible within such time as the 
administrative law judge directs.
    (b) Unless otherwise ordered by the administrative law judge, 
parties may obtain discovery by written interrogatories (not to exceed 
20 interrogatories including subparts), depositions upon oral 
examination or written questions, requests for production of documents 
or things for inspection or other purposes, requests for admission or 
any other method found reasonable and appropriate by the administrative 
law judge.
    (c) Except as otherwise specified, the Federal Rules of Civil 
Procedure shall govern discovery in proceedings under this part.
    (d) Neutral mediators who have participated in the alternative 
dispute resolution process in accordance with Sec. 1603.108 shall not 
be called as witnesses or be subject to discovery in any adjudication 
under this part.


Sec. 1603.211  Subpoenas.

    (a) Upon written application of any party, the administrative law 
judge may on behalf of the Commission issue a subpoena requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including, but not limited to, books, records, 
correspondence, or documents, in their possession or under their 
control. The subpoena shall state the name and address of the party at 
whose request the subpoena was issued, identify the person and evidence 
subpoenaed, and the date and time the subpoena is returnable.
    (b) Any person served with a subpoena who intends not to comply 
shall, within 5 days after service of the subpoena, petition the 
administrative law judge in writing to revoke or modify the subpoena. 
All petitions to revoke or modify shall be served upon the party at 
whose request the subpoena was issued. The requestor may file with the 
administrative law judge a response to the petition to revoke or modify 
within 5 days after service of the petition.
    (c) Upon the failure of any person to comply with a subpoena issued 
under this section, the administrative law judge may refer the matter 
to the Commission for enforcement in accordance with 29 CFR 1601.16(c).

[[Page 17547]]

Sec. 1603.212  Witness fees.

    Witnesses summoned under this part shall receive the same fees and 
mileage as witnesses in the courts of the United States. Those fees 
must be paid or offered to the witness by the party requesting the 
subpoena at the time the subpoena is served, or, if the witness appears 
voluntarily, at the time of appearance. A federal agency or corporation 
is not required to pay or offer witness fees and mileage allowances in 
advance.


Sec. 1603.213  Interlocutory review.

    (a) Interlocutory review may not be sought except when the 
administrative law judge determines upon motion of a party or upon his 
or her own motion that:
    (1) The ruling involves a controlling question of law or policy 
about which there is substantial ground for difference of opinion;
    (2) An immediate ruling will materially advance the completion of 
the proceeding; or
    (3) The denial of an immediate ruling will cause irreparable harm 
to the party or the public.
    (b) Application for interlocutory review shall be filed within ten 
(10) days after notice of the administrative law judge's ruling. Any 
application for review shall:
    (1) Designate the ruling or part thereof from which appeal is being 
taken; and
    (2) Contain arguments or evidence that tend to establish one or 
more of the grounds for interlocutory review contained in paragraph (a) 
of this section.
    (c) Any party opposing the application for interlocutory review 
shall file a response to the application within 10 days after service 
of the application. The applicant shall have no right to reply to a 
response unless the administrative law judge, within his or her 
discretion, orders that a reply be filed.
    (d) The administrative law judge shall promptly certify in writing 
any ruling that qualifies for interlocutory review under paragraph (a) 
of this section.
    (e) The filing of an application for interlocutory review and the 
grant of an application shall not stay proceedings before the 
administrative law judge unless the administrative law judge or the 
Commission so orders. The Commission shall not consider a motion for a 
stay unless the motion was first made to the administrative law judge.


Sec. 1603.214  Evidence.

    The administrative law judge shall accept relevant non-privileged 
evidence in accordance with the Federal Rules of Evidence (28 U.S.C. 
appendix), except the rules on hearsay will not be strictly applied.


Sec. 1603.215  Record of hearings.

    (a) All hearings shall be mechanically or stenographically 
reported. All evidence relied upon by the administrative law judge for 
decision shall be contained in the transcript of testimony, either 
directly or by appropriate reference. All exhibits introduced as 
evidence shall be marked for identification, with a copy provided for 
all parties, if not previously provided, and incorporated into the 
record. Transcripts may be obtained by the parties and the public from 
the official reporter at rates fixed by the contract with the reporter.
    (b) Corrections to the official transcript will be permitted upon 
motion, only when errors of substance are involved and upon approval of 
the administrative law judge. Motions for correction must be submitted 
within ten (10) days of the receipt of the transcript unless additional 
time is permitted by the administrative law judge.


Sec. 1603.216  Summary decision.

    Upon motion of a party or after notice to the parties, the 
administrative law judge may issue a summary decision without a hearing 
if the administrative law judge finds that there is no genuine issue of 
material fact or that the complaint may be dismissed pursuant to 
Sec. 1603.107 or any other grounds authorized by this part. A summary 
decision shall otherwise conform to the requirements of Sec. 1603.217.


Sec. 1603.217  Decision of the administrative law judge.

    (a) The administrative law judge shall issue a decision on the 
merits of the complaint within 270 days after referral of a complaint 
for hearing, unless the administrative law judge makes a written 
determination that good cause exists for extending the time for issuing 
a decision. The decision shall contain findings of fact and conclusions 
of law, shall order appropriate relief where discrimination is found, 
and shall provide notice of appeal rights consistent with subpart C of 
this part.
    (b) The administrative law judge shall serve the decision promptly 
on all parties to the proceeding and their counsel. Thereafter, the 
administrative law judge shall transmit the case file to the Office of 
Federal Operations including the decision and the record. The record 
shall include the complaint; the investigative file, if any; referral 
notice; motions; briefs; rulings; orders; official transcript of the 
hearing; all discovery and any other documents submitted by the 
parties.

Subpart C--Appeals


Sec. 1603.301  Appeal to the Commission.

    Any party may appeal to the Commission the dismissal of a complaint 
under Sec. 1603.107, any matter certified for interlocutory review 
under Sec. 1613.213, or the administrative law judge's decision under 
Sec. 1603.216 or Sec. 1603.217.


Sec. 1603.302  Filing an appeal.

    (a) An appeal shall be filed within 30 days after the date of the 
appealable decision or certification for interlocutory review, unless 
the Commission, upon a showing of good cause, extends the time for 
filing an appeal for a period not to exceed an additional 30 days.
    (b) An appeal shall be filed with the Director, Office of Federal 
Operations, Equal Employment Opportunity Commission, P.O. Box 19848, 
Washington, D.C. 20036, by mail or personal delivery or facsimile.


Sec. 1603.303  Briefs on appeal.

    (a) The appellant shall file a brief or other written statement 
within 30 days after the appeal is filed, unless the Commission 
otherwise directs.
    (b) All other parties may file briefs or other written statements 
within 30 days of service of the appellant's brief or statement.
    (c) Every brief or statement shall contain a statement of facts and 
a section setting forth the party's legal arguments. Any brief or 
statement in support of the appeal shall contain arguments or evidence 
that tend to establish that the dismissal, order or decision:
    (1) Is not supported by substantial evidence;
    (2) Contains an erroneous interpretation of law, regulation or 
material fact, or misapplication of established policy;
    (3) Contains a prejudicial error of procedure; or
    (4) Involves a substantial question of law or policy.
    (d) Appellate briefs shall not exceed 50 pages in length.
    (e) Filing and service of the appeal and appellate briefs shall be 
made in accordance with Sec. 1603.209.


Sec. 1603.304  Commission decision.

    (a) On behalf of the Commission, the Office of Federal Operations 
shall review the record and the appellate briefs submitted by all the 
parties. The Office of Federal Operations shall

[[Page 17548]]

prepare a recommended decision for consideration by the Commission.
    (b) When an administrative law judge certifies a matter for 
interlocutory review under Sec. 1603.213, the Commission may, in its 
discretion, issue a decision on the matter or send the matter back to 
the administrative law judge without decision.
    (c) The Commission will not accept or consider new evidence on 
appeal unless the Commission, in its discretion, reopens the record on 
appeal.
    (d) The decision of the Commission on appeal shall be its final 
order and shall be served on all parties.
    (e) In the absence of a timely appeal under Sec. 1603.302, the 
decision of the administrative law judge under Sec. 1603.217 or a 
dismissal under Sec. 1603.107 shall become the final order of the 
Commission. A final order under this paragraph shall not have 
precedential significance.


Sec. 1603.305  Modification or withdrawal of Commission decision.

    At any time, the Commission may modify or withdraw a decision for 
any reason provided that no petition for review in a United States 
Court of Appeals has been filed.


Sec. 1603.306  Judicial review.

    Any party to a complaint who is aggrieved by a final decision under 
Sec. 1603.304 may obtain a review of such final decision under chapter 
158 of title 28 of the United States Code by filing a petition for 
review with a United States Court of Appeals within 60 days after 
issuance of the final decision. Such petition for review should be 
filed in the judicial circuit in which the petitioner resides, or has 
its principal office, or in the United States Court of Appeals for the 
District of Columbia Circuit.

[FR Doc. 97-9162 Filed 4-9-97; 8:45 am]
BILLING CODE 6570-06-P