§ 3.51 Recommended decision. ( a ) *When filed, content* — ( 1 ) *Filing of recommended decision.* The Administrative Law Judge shall file a recommended decision within 70 days after the filing of the last filed initial or reply proposed findings of fact, conclusions of law and order pursuant to § 3.46, or within 85 days of the closing the hearing record pursuant to § 3.44(c) where the parties have waived the filing of proposed findings. The Administrative Law Judge may extend any of these time periods by up to 30 days for good cause. The Commission may further extend any of these time periods for good cause.
( 2 ) *Certification of the record.* At the same time the Administrative Law Judge files the recommended decision, the Administrative Law Judge will also certify to the Commission the record of the proceeding. The record must include the Administrative Law Judge's recommended decision; any transcripts from prehearing conferences; all hearing transcripts; all rulings; all exhibits; and the pleadings, motions, briefs, memoranda, and other supporting papers filed in connection with the proceeding. The Administrative Law Judge must also furnish to the Commission an index of each exhibit identified but not received in evidence.
( b ) *Exhaustion of administrative remedies.* A recommended decision shall not be considered final agency action subject to judicial review under 5 U.S.C. 704. Any objection to a ruling by the Administrative Law Judge, or to a finding, conclusion or a provision of the order in the recommended decision, which is not made a part of any exceptions filed with the Commission shall be deemed to have been waived.
( c ) *Content, format for filing.* ( 1 ) A recommended decision shall be based on a consideration of the whole record relevant to the issues decided, and shall be supported by reliable and probative evidence. The recommended decision shall include a statement of recommended findings of fact (with specific page references to principal supporting items of evidence in the record) and recommended conclusions of law, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record (or those designated under paragraph (c)(2) of this section) and an appropriate proposed rule or order. Rulings containing information granted in camera status pursuant to § 3.45 shall be filed in accordance with § 3.45(f).
( 2 ) The recommended decision shall be prepared in a common word processing format, such as WordPerfect or Microsoft Word, and shall be filed by the Administrative Law Judge with the Office of the Secretary in both electronic and paper versions.
( 3 ) When more than one claim for relief is presented in an action, or when multiple parties are involved, the Administrative Law Judge may direct the entry of a recommended decision as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of recommended decision.
( d ) *By whom made.* The recommended decision shall be made and filed by the Administrative Law Judge who presided over the hearings, except when he or she shall have become unavailable to the Commission.
( e ) *Reopening of proceeding by Administrative Law Judge; termination of jurisdiction.* ( 1 ) At any time from the close of the hearing record pursuant to § 3.44(c) until the filing of his or her recommended decision, an Administrative Law Judge may reopen the proceeding for the reception of further evidence for good cause shown.
( 2 ) Except for the correction of clerical errors or pursuant to an order of remand from the Commission, the jurisdiction of the Administrative Law Judge is terminated upon the filing of his or her recommended decision with respect to those issues decided pursuant to paragraph (c)(1) of this section.
[88 FR 42876, July 5, 2023]